Court name
Labour Court
Case name
Riverside Service Centre v Adriaanse
Media neutral citation
[2011] NALC 3





CASE NO

















REPORTALBE
CASE
NO: LCA 71/2010


IN
THE LABOUR COURT OF NAMIBIA







In the matter between:



RIVERSIDE
SERVICE CENTRE

…......................................................................APPELLANT



and


LEE-ANNE
ADRIAANSE

…...............................................................................RESPONDENT















CORAM:
Geier, AJ















HEARD ON:
28.01.2011





DELIVERED
ON:
08.02.2011










JUDGMENT















GEIER,
AJ.:
[1]
The respondent in this matter had commenced employment with the
appellant as an administrative assistant on 11 February 2008. A six
month probationary period was still effective.



[2] By July 2008 the respondent
had already utilised 21 days of her sick leave allowance due to
certain medical problems.







[3] On respondent's version and
on account of her employer's dissatisfaction with her work
performance, the Respondent was apparently informed at a meeting on
10 July 2010 that 'her contract will not be extended due to the fact
that she is no longer interested in her work'. She was allegedly told
to come back the next day to sign her papers'. On account of these
events the respondent considered herself dismissed.











[4] The appellant disputed that
the respondent was so dismissed and the employers version of the
events was to the effect that the respondent was indeed called into a
meeting on 10 July 2008 at which she was informed that the purpose
thereof was to conduct a 'poor performance counselling meeting' and
that 'they were counselling her due to her poor performance at the
workplace and that she was advised at that time that should her
performance not improve her contract would not be extended'.











[5] It was further appellants
case that the respondent indicated at such meeting that she rather
preferred to resign, in response to which she was told to think this
over and then come back on the next day.







[6] On the
11
th
of July 2008
the respondent did not return to her workplace. She did however send
a
sms
to
her employer indicating that she would not come to work on the 11
th
of July 'due
to circumstances'.



[7] The respondent apparently
thereafter enlisted the services of a certain Mr. Hewat Beukes of the
Workers Advice Centre in Windhoek who apparently instructed her not
to return to work.












[8] It was indeed common cause
that the respondent never returned to work.











[9] Shortly thereafter and under
cover of a letter dated 15 July 2008 Mr Beukes informed the appellant
as follows:











" ... We are
instructed that Mrs. Adriaanse's services had been terminated due to
her illness which had been aggravated by smoking in her workplace. No
hearing or assessment was held which constitutes unfair dismissal.











She instructs that she has
not received her last payments and leave



pay.







Further we are instructed
that you have distributed her medical information to your labour
consultants which constitutes an offence. Whence, we are instructed
to demand immediate payment of her salary.







We are
to demand payment of one year's salary as damages for unfair
dismissal and the return of all documents and doctors letters
pertaining to her health. We trust on your favourable response by
Friday 18
th
July
2008."







[10] Appellant was thereafter
also informed that all communications by appellant to respondent
should from now on be channelled through Mr. Beukes and that
appellant should refrain from making any contact with the respondent.



[11] As appellant was of the
view that no formal termination of the respondent's employment
relationship had occurred, as the oral resignation was, inter alia,
not effective as same was not in writing, as is required by Section
47 (2) of the Labour Act 1992, appellant instructed its labour
consultants Messrs. Labour Dynamics cc to respond to the letter which
had been so received from Mr Beukes and which was done on 17 July in
the following terms:











"Our instructions are
that the employee has been on sick leave for a total period of
twenty-one (21) days in her first five (5) months of employment. Her
probation period is for a period of six (6) months. On 10 July 2008
she met with N Du Preez and A Schoombee. She was addressed on the
performance of her work and she was in agreement that her work was
not up to standard, that the line of work was not for her, that she
was unhappy and that she was constantly ill (her illness was a "time
bomb"). The employee asked if she could leave (resign)
immediately and was informed that she should stay and end her working
day if she so chose to do so.







A verbal agreement was
then reached between the employer that she would terminate her
employment as she chose to do and that she would return on Friday 11
July 2008 for payment etc. On Friday morning she did not return to
work and sent a sms via cellular telephone to say that she could no
longer make the appointment because of circumstances. Since such time
she has not returned to work and neither has she made contact with
her employer.







We shall also hand deliver
a copy of this document to her last known residential address. Kindly
inform her unambiguously that:







1. Her employer has not
only the right but the obligation to counsel her on poor performance.



2. Where sick leave is
excessive or abused the employer also has a right and an obligation
to address the employee accordingly.



3. Her employment has not
been terminated in any manner whatsoever by her employer.



4. She chose to inform her
employer that she wanted to leave immediately and that is her good
right to do so.



5. That as far as her
employer is concerned she remains an employee of Riverside Service
Station with duties and obligations towards her employer.



6. That currently the
employee is on AWOL and faces disciplinary charges in this regard.



7. That the employee is to
return to work immediately and without further delay reporting to
Riverside Service Station and in turn immediately reporting by
telephone from Riverside Service Station to Mr. N Du Preez that she
has returned to work.



8. That should the
employee continue to absent herself from her place of work without
official leave she will be held accountable in terms of the
disciplinary code of conduct of her employer.










Yours sincerely ... "







[12] Mrs
Schoombee, on behalf of appellant testified that appellant now found
itself in a situation where it was 'sitting with an employee that
after a poor performance counselling session simply absconds from
work and were the employer was prevented from talking to this
employee because the representative
will
not allow it to take place ... '. This is apparently how appellant
viewed the situation as at 21 July 2008.












[13] In such circumstances a
further letter dated 21 July 2008 was faxed and delivered to
respondent's representative under cover of which respondent via her
representative was again informed as follows:



















"Our previous
document dated 17 July 2008 in this matter refers.







We reiterate the contents
of that document as attached hereto in the event that you did not
receive such copy.







Having regard for your
message to the employer that they are not to make any contact with
their employee we state for the record that the above captioned is
indeed an employee of the employer and as such, her employer has the
right to communicate and issue instructions to her which to date
they have done and through this letter they continue to do.







She has a duty towards
her employer in that she is to provide her services in return for
remuneration and that she remains subject to the disciplinary code
of conduct of her employer. Her failure to comply with the policies
of her employer especially in absconding from her place of work will
result in the "no work pay - pay rule" being applied.







In any event she must
stand and fall with the advice you have provided to her suffice to
state that she is still employed by the employer and must return to
her place of work immediately or face disciplinary action forthwith.



Kindly take notice that
we place on record for the second and final time that she is to
return to work immediately.











Yours
sincerely, ...
"







[14] This letter also had the
following hand written notes affixed to its page 2 to the effect
that:











"1.
21 July 2008 15H15 - 99 John Meinert Street, WDA spoke to Lee-Ann
Adriaanse. She refuses to sign for any documentation.







2.
She
is told by Mr. R. C Raines to return to work immediately.



3.
Affidavits
to the above to be completed without delay.
Signed R. C. Raines

Witness.
Simon Raines"







[15]
Although respondent under cross examination denied that her
representative had ever informed her of the contents of the above
two quoted letters, respondent nevertheless admitted that the
handwritten notes correctly reflected what had transpired on the
occasion. This was also confirmed by Mr Simon Rains, who had come
along to witness the events and who testified further that the
respondent informed him and Mr RC Rains of Messrs. Labour Dynamics
cc on that occasion that Mr Beukes had instructed respondent that
'she
would not be allowed to return to work'.







[16] It is against this
background that the respondent, on the following day, lodged a
complaint in the District Labour Court of Windhoek.











[17] On 1 August 2008 appellant
instituted disciplinary steps against the respondent. The notice to
appear at a disciplinary hearing indicated that the respondent was
now charged with being 'absent without leave' and that such hearing
was set for 8 August 2008. This notice was initially faxed to the
fax number indicated on the letterhead of the Worker's Advice
Centre, but all attempts to communicate via fax to this number were
not successful. After an alternative fax number was provided the
notice apparently 'went through'. On 8 August the hearing was
postponed on the instruction of the chairman to 14 August 2008 of
which postponement respondent's representative was given notice by
facsimile, which read as follows:












"H.BEUKES



WORKERS ADVICE CENTRE



WINDHOEK NAMIBIA 8 AUGUST
2008






Dear Sir,









RE: MS. LEE-ANN ADRIAANSE
(EMPLOYEE)







Our Ms. Schoombe failed
to get through to the fax number on your letter head (061 220 055).
She contacted your offices and was given an alternative fax number
of (061 210 226). We have proof that this facsimile went through.



The chairman instructed
to do the disciplinary hearing postponed the matter until Monday the
14th of August 2008 at 14:00.







Take note that you and
your client in spite of your persistent previous refusal to receive
documents and to participate in any proceedings are again forewarned
and invited to attend this disciplinary hearing as this is the fair
and proper procedure to follow in this instance. Failure to attend
the disciplinary hearing will result in the hearing being held in
absentia.











Yours sincerely,











MANAGEMENT RIVER SIDE
SERVICE STATION "



**** tx report ***** transmission ok



tx/rx no. connection 210226 id



start time 12/o8 13:00
usage t

00'37



pgs. 1



result ok







[18] It was in such
circumstances that the respondent was then found guilty and
dismissed in absentia, 'backdated to 8 July 2008'. On 19 August 2008
this ruling of the chairperson was also faxed to respondent's
representative.











[19] In the meantime respondent
pressed ahead with her complaint in the District Labour Court. On
account of the appellant's non-appearance there on 12 May 2009,
default judgment was granted in respondent's favour, which judgement
was



subsequently rescinded on 6
July 2009.



[20] On 28 April 2010 the
parties went to trial in the District Labour Court, which found that
the appellant had terminated the respondent's employment without
fair reasons ordering appellant to pay the respondent N$72 000-00 as
loss of income as per her salary for one year.












[21] It is essentially this
finding that now forms the central focus of this appeal.











[22] At the core of this issue
is the question whether or not the respondent tendered her
resignation on 10 July or not, or whether it was the appellant that
had terminated her services unlawfully on that date as is alleged by
respondent in her complaint.



[23] All the other grounds of
appeal are ancillary to this issue.


WAS
THERE A RESIGNATION?















[24] This question needs to be
answered in the first instance in order to determine whether or not
there could have been an unfair dismissal.











[25] If
respondent's notice of resignation was freely given, and if such
notice would be in accordance with section 47 of the Labour Act
1992, that would be the end of the matter.
1



[26] In this regard it was
submitted by Mr van Zyl, counsel for the appellant, at the hearing
of this matter, that the so-called oral resignation of the
respondent was invalid and not effective, and was treated as such by
the appellant, as such oral notice did not comply with the
requirements of section 47 of the Labour Act 1992, which provides
that such notice had to be in writing.












[27] Section 47(2) states
indeed that:













" ...
Subject to the provisions of subsection (3), a notice in terms of
subsection (1) shall, except when given by an illiterate employee,
be given in writing, and shall -










(a)
contain the date on which such notice is given; ...
"







[28] In Joe
Gross t/a Joe's Beerhouse v Meintjies
2
the Supreme
Court, when considering the validity of a notice of termination with
reference to the requirements set by section 47(1), found that
section 47(6)
'makes
it clear that the notice in ss 47(1) is the prescribed minimum'.
3











[29] It
would appear that a similar conclusion cannot be drawn in regard to
the peremptory requirements set by section 47(2),
(ie.
that a notice of termination has to be in writing),
as
the proviso, as contained in section 47(6), makes no cross-reference
to the provisions of ss 47(2) and also as the exceptions to the
general rule as provided for in 47(4)(b), (which again expressly
cross-references to section



47(1) and not to section 47(2))
do not indicate that the legislature intended that the requirements
of section 47(2) could be by-passed in any manner.











[30] But
even if I am wrong in this conclusion and if the cross-references to
section 47(1), as found in sections 47(4)(b) and 47(6), in turn are
linked to Section 47(2) because of the cross-reference to section
47(1) as found in section 47(2), then, and if regard is had to what
was found by the Supreme Court in the
Joe's
Beerhouse
case,
it must appear that also the requirements set by section 47(2) are
at the very least to be considered as
'the
prescribed minimum'.











[31] It must be concluded
therefore that the legislature intended that all notices of
termination be effected in writing, save in the case of illiterate
employees.











[32] For any effective
resignation/termination to have occured therefore on the part of
respondent on 10 July 2008, such notice had to be in writing.











[33] It is
common cause that there was no such written notice, on respondent's
version, because she considered herself to have been unlawfully
terminated, and on appellant's version because she never returned on
the 11
th
of July nor
at any time thereafter to complete this formality.











[34] It is
also of relevance in this regard, that on appellant's version, the
respondent had also indicated that she would come back on the
following day to formally resign, which she did not do. This
intimation would signify only an intentionto formally resign on the
following day. This fortifies the conclusion that no resignation
occurred on the 10
th
of July
2008.











[35] Ultimately it must be
concluded however that, even if any resignation did occur on 10
July, that such resignation was, in any event, not effective as it
did not comply with the statutory requirement.























WAS THERE A DISMISSAL



















[36] The
point of departure to answering this question must be the
realisation that dismissal by notice under s 47 terminates the
contract of employment but: (a) if unfairly done, it will bring the
provisions of ss 45 and 46 into play; and (b) if no or inadequate
notice is given, the remedy provided for by s 53(a) will be
available to an aggrieved employee.
4











[37] I have already found that
no statutory notice of termination/resignation was given by the
respondent.











[38] It was also common cause
between the parties that also the appellant had given no statutory
notice of termination to the respondent.



[39] In this
regard it should be taken into account that it must be concluded
from the wording of section 45(1)(a)
5
that, other
than in the case of an employee ,the giving of the required written
statutory notice of termination by an employer is not a
pre-requisite for the provisions of section 45(1)(a) to come into
play.











[40] The fact that no written
notice of termination was given by appellant on respondent's version
is therefore not decisive herein.











[41] Respondent considered
herself terminated due to the oral intimation that 'her contract
will not be extended due to the fact that she is no longer
interested in her work'. She was apparently also told that her work
was not up to standard. She denied that she had been called in to
receive counselling in this regard. She denied that she had
indicated that she rather wished to resign. On her version she was
allegedly told to come back the next day so that she can sign the
papers and that she sent a sms to her employer to the effect that
she cannot make the appointment as the doctor had called her.











[42] The appellant, on the
other hand, all along denied vehemently that the respondent's
services had been terminated, as appears from what has already been
set out herein above. As the appellant continued to regard
respondent as an employee she was repeatedly requested to return to
work, (by two letters and orally), and only thereafter and on
account of respondent's failure to return to her workplace were
disciplinary steps instituted against her, which resulted in her
ultimate dismissal.











[43] It does
not take much to conclude in these circumstances that learned
chairperson in the court
a
quo
erred
and misdirected himself when he reasoned against this backdrop of
evidence that :











"Having
said that, there are few observations to be made. A, that the
Respondent was duly notified by the Complainant about Complainant's
illness on the 14th of May 2008 and 15th of May 2008 respectively.
B. that with effect from those days above the Respondent was fully
aware about the health conditions of the Complainant, C, that
despite all that the Respondent took Complainant to task on the 10th
of July 2008 at the management meeting about her work performance
and that she was not interested in her work. D, irrespective of the
aforegoing the Respondent continued to conduct a Disciplinary
Hearing against the Complainant on the 14 of August 2008 knowingly
that the Complainant was suffering from the ailment as
aforementioned. Therefore, for the afore going reasons having
analysed the totality of the evidence presented before this Court, I
am of the view that the Complainant who was discharged from her
employment by the Respondent on the 14th of August 2008 had been a
victim of circumstances beyond her control.
The
Complainant has shown something which justifies this Court in
holding its discretion that sufficient cause for granting relief has
been shown within the perimeters of Sections 45 and 46 of Act no. 6
of 1992 when such termination is considered as substantively unfair
.
Having found that the Respondent has terminated the Complainant's
employment without fair reasons thus causing the Complainant a loss
of income of seventy two thousand Namibian Dollars (N$72 000-00) as
per salary for one year...
".



[44] With
the greatest respect to the learned chairperson it was not his task
to consider if one of the parties " ...
has
shown something which justifies this Court in holding its discretion
that sufficient cause for granting relief has been shown within the
perimeters of Sections 45 and 46 of Act no. 6 of 1992



... ".
Surely
it was the court's task to consider the evidence before it and then,
upon an analysis thereof, to decide, whether or not the complainant
had discharged her burden of proof. No discretion was to be
exercised at that stage.











[45] In the
court a quo the parties were
ad
idem
that
the onus rested on the respondent to prove her dismissal. This issue
therefore had to be proved by respondent on a balance of
probabilities.
6











[46] When
considering where the balance of probabilities herein lies ie. in
considering which version is favoured by the probabilities, it
emerges from the record that both parties essentially stuck to their
guns, even under cross-examination. It cannot be said that the
evidence of any witness was shaken in any meaningful way or should
be regarded as untruthful. No credibility finding against any
witness was made by the court
a
quo.
It
also appears from the record that both parties conducted themselves
in accordance with their version of the events.











[47]
Respondent considering herself dismissed on the 10
th
of July
2008, did not return to work on the 11th and seems to have promptly
consulted her representative, Mr Beukes who immediately addressed
her claims in the referred to letter of 15th of July. By the 22nd of
July 2008 the complaint in the District Labour Court had been
lodged.











[48] The
only conduct in the respondent's case which is in contradiction with
the respondent's version is the aspect of the sms, which was sent on
the 11
th
of July. Why
did respondent consider it necessary to explain to her employer that
'she could no longer make it due to circumstances' in circumstances
were she considered herself already dismissed? This conduct is
however and in all probability explained with reference to the
advice the respondent received from Mr Beukes, to the effect that
she should refrain from all contact with the appellant, that she
s
hould
not return to work
and
that she should not accept any documentation from them.











[49] Mrs
Schoombee on behalf of appellant on the other hand insisted that the
meeting of the 10
th
was convened
for purposes of counselling. (Counselling during the probationary
period is indeed provided for by the respondent's contract of
employment). Respondent admitted that her work was not up to
standard, that it was not her line of work, that she was unhappy,
that her 'illness was a time bomb' and that she rather resign. (this
version is also reflected in the abovementioned letter of 17 July
2010). In such circumstances it was agreed that the respondent
should return on the 11
th.
As she never presented her employer with a resignation letter the
appellant considered respondent to remain in their employ.











[50] This
position was maintained throughout as the letters of 17 and 21 July
addressed by Labour Dynamics cc on behalf of appellant show. Also
the warning contained in the letter of the 17
th
of July, to
the effect, 'that should the respondent continue to absent herself
from her place of work without official leave she will be held
accountable in terms of the disciplinary code of conduct of her
employer', was carried into effect, as the disciplinary proceedings
promptly launched on 1 August 2008, on the charge of being absent
without leave, indicate and, as a result of which, respondent was
dismissed on 14 August 2008.











[51] The high- watermark during
Mr Beukes' cross-examination of Mrs Schoombee ran as follows:











"... Is it correct
that she started her employment at 11 February 2008? -That is
correct, Mr Chairman.







And she was dismissed on
10 July 2008 or rather 8 July 2008? - That is correct Mr Chairman,







Let the record show that
I finally got the admission that she was



dismissed
on the 8
th
of
July - (intervention) --- She resigned on the



10th of July.







2009, the salary before
deduction incomplete you know. Madam, let me share a little wisdom
with you. The truth has an uncanny ability to slip out so often here
- (intervention) --- She resigned, that was my answer previously,







Yes, but the truth has
that unsavoury characteristic to slip out in an unguarded moment.
Her salary was five thousand six hundred and seventy Namibian
Dollars (N$5 670-00) per month? - That is correct, Mr Chair...."







[52] This
was really
'much
ado about nothing'
and
this passage at best demonstrates that Mr Beukes overstepped the
'fair lines of cross-examination'. The so-called admission that
according to Mr Beukes slipped out, was in any event common cause.
It related clearly to the backdated dismissal of the respondent as
effected by the chairperson on 14 August 2008. This was also clearly
understood by Mr Beukes, as this line of questioning shows, and
which elicited a factually correct answer from Mrs Schoombee.











[53] In any event it appeared
that the versions of the respondent and of the appellant in the
court a quo were mutually destructive in the sense that acceptance
of the one version necessarily would have involved the total
rejection of the other version.











[54] Taking
into account however the various factors and circumstances listed in
paragraph [46] above it appears that the probabilities herein are
evenly balanced in the sense that they do not favour the
respondent's case any more than they do the appellant's. In such
circumstances the respondent could only have succeeded in the court
a
quo
if
the court had nevertheless believed her and would have been
satisfied that her evidence was true and that the appellant's
version was false.
7







[55] As it
is impossible to make such a finding on the record it must be
concluded that the respondent has failed to discharge her onus to
prove that she was unlawfully dismissed on the 10
th
of July
2008. The appeal must therefore succeedas the magistrate should not
have granted judgement in favour of respondent as the proper
judgement in such circumstances would have been absolution.











[56] In view of this finding it
becomes unnecessary to deal with all the other grounds of appeal as
raised in the relevant notice of appeal.











[57] In so
far as is necessary I also find that nothing turns on the issue of
the respondent's subsequent dismissal on 14 August 2008,
in
absentia
8
as due and
sufficient notice of such disciplinary hearing
9
was given to
her representative in this regard. The respondent chose to
'nail
her colours to the mast'
of
her representative, and when she acted on Mr Beukes' advice by
ignoring such proceedings, she did do so at her peril.











[58] In the premises the appeal
is upheld and the order of the District Labour Court, made on 28 May
2010, is hereby set aside and substituted for an order for
absolution from the instance.































GEIER, AJ








ON BEHALF OF THE APPELLANT:
Mr. C. van Zyl







INSTRUCTED
BY:
GF
Kopplinger Legal Practitioners






ON BEHALF OF RESPONDENT: IN
PERSON







INSTRUCTED BY:














1Meintjies
v Joe Gross t/a Joe's Beerhouse
2003
NR 221 LC at p233 B-C





22005
NR 413 SC





3At
p 417 E-G




4See
also :
Rabe
& Another v African Granite (Pty) Ltd
NLLP
2004 (4) 273 NLC at 278 -279





545.
(1) For purposes of the provisions of section 46, but subject to the
provisions of subsection (2) -(a) any employee dismissed, whether or
not notice has been given in accordance with any provision of this
Act ..."




6See
for instance :
Mineworkers
Union of Namibia v CSO Valuations (Pty) Ltd
2002
(2) 208 NLC at p 213




7See
for instance :
Sakusheka
& Another v Minister of Home Affairs
2009
(2) NR 524 HC at 540 I -541C - see also
National
Employers General Insurance Co Ltd v Jagers
1984
(4) SA 437 (E) at 440 H-I ;
Stellenbosch
Farmers Winery Group Ltd v Martell et Cie
2003
(1) SA 11 SCA at [14] -[15] ;
Dreyer
NO v AXZS Industries (Pty) Ltd
[2006]
3 All SA 219 (SCA) at 228 c-h.





8The
dismissal of 14 August 2008 was also not specified in the
'Complaint' as being the 'date on which the cause of action' arose




9Oa-Eib
v Swakomund Hotel and Entertainment Centre
NLLP
2002 (2) 88 NLC at p 91