Employers are required by the LRA to prove that the reason for dismissal was valid and fair.  Common law and the BCEA requires reasonable notice, in the absence of gross misconduct.  What is to be done, as in this case, when a third party insists on the dismissal of a senior employee?  The UK caters for this problem by including ‘other substantial reason’.  In an earlier unreported case the LAC held in effect that our three LRA categories are not water-tight compartments.  Validity and fairness to both parties is required.  So employers should adopt the statutory joint consensus-seeking approach.  All the relevant facts need to be provided.  After a proper discussion a final decision can be taken.  Employees are then entitled to reasonable notice and severance pay.  Some enlightened employers offer an initial informal ‘without prejudice’ discussion in the hope of reaching consensus and avoiding the formality of the statutory process.

Synergised Engineering Technologies (Pty) Ltd v B (JR205/13) [2016] ZALCJHB 301 (10 August 2016) per Tlhotlhalemaje, J.

Order

[43]     The only concern raised with ruling is that at paragraph 4.21, the Commissioner referred to the letter of 9 June 2012 and concluded that it did not make reference to issues surrounding poor performance or operational requirements, insofar as the Applicant in this case might rely on it in pursuing either ground as a basis for the dismissal. In this judgment, it has been stated that both parties acknowledge this letter as being the basis of a dismissal.

[44]     To the extent that the Commissioner had in one way or the other made these findings and other findings that have a bearing on the merits of the dispute without the full facts having been ventilated, and further it being common cause that the full merits of this case have not been dealt with, it is my view that it would be iniquitous to allow her to conclude those arbitration proceedings.

[45]     In regards to the issue of costs, and having had regard to the requirements of law and fairness as called upon by the provisions of section 162 of the LRA, I am of the view that the First Respondent should not be burdened with costs in circumstances where he was compelled to oppose this application.

To this end, the following ruling is made;

Costs:

  • The application to review and set aside the in limine ruling of the Second Respondent is dismissed.
  • The dispute between the parties is to be re-scheduled for arbitration before a Commissioner other than the Second Respondent.
  • The Applicant is ordered to pay to the First Respondent, the costs of this application.

Further excerpts without footnotes

[1]     This Applicant seeks to review and set aside an in limine ruling issued on 26 December 2012 by the Second Respondent (the Commissioner) under case number GAJB21020-12. In her ruling, the Commissioner upheld an objection raised on behalf of the First Respondent (B) at the commencement of the arbitration proceedings that certain evidence, which the Applicant sought to adduce was irrelevant and inadmissible for the purposes of a determination of the unfair dismissal dispute.  B opposed this application.

. . . . .

[7]     When discussions with B failed, and when he had rejected an alternative position offered to him, the Applicant then decided to terminate his services on 9 July 2012, especially in the light of BHP Billiton’s stance on the matter.  The letter effectively terminating B’s employment reads as follows;

‘Dear JD

Redeployment options offered:

The Synntech business model requires delivering a project management services to the client through qualified and skilled people with the ability to work in a very close relationship with the client.  This relationship, where the client often interacts with the Synntech resources on a daily basis over a long period of time, either enables successful delivery of the service or it hinders the ability of the project manager to deliver the expected outputs.

Over the last few months it became evident that the relationship between you and the client on the HMM Contract has been damaged irreparably due to your dealings and interactions with different parties at the BHP Billiton.  In February of this year Synntech offered you an opportunity to take up a severance package due to this on-going problem or to take up a new position on a fixed term contract basis at the Central Block project at the Wessels Mine, which in our view, would’ve shielded you to an extent from day to day interaction with the client.  You opted for the fixed term contract at the end of March.  This was the second time Synntech had to move you to a different client project environment due to issues with client relations.

Against this background and given the fact that to date the client relationship issues within the Northern Cape have not been resolved, Synntech decided that it was in your and the company’s best interest to redeploy you to a project outside of the BHP Billiton environment.

During the week of 2nd to the 6th of July, JW discussed an opportunity for you to be redeployed to a new project at Exxaro in Pretoria.  This was formalised during your visit to Synntech’s head office yesterday.  Synntech offered you the following;

  1. Retaining your current salary package of R50, 000-00 per month
  2. The day to day use of a company vehicle whilst working on the project (In this regard Synntech bought a brand new Volkswagen Polo for your use)
  3. Two paid flights per month to go home to your family. It must be pointed out that the norm in Synntech is one paid flight for those travelling between the Northern Cape and Gauteng.

You opted not to accept these conditions not even for a short period of time until we or you could find something more suitable.

You therefore left us with no alternative but to give you notice that were are ending the employment contract.  The notice period stated in the contract dated 20 February 2012 is one week.  Synntech will pay you an additional two weeks’ salary with your last working day being the 31st of July 2012.  It will not be required of you to be on site for the next three weeks to allow you some time to look for alternative employment.

Regards

JW

Managing Director’

. . . . .

[10]     Upon further enquiring as to the reason for the dismissal, the Commissioner was informed by Mr. van der Westhuizen on behalf of the Applicant that the dismissal of B was related to incapacity, or in the alternative, a combination of incapacity or operational requirements.  It was however contended that primarily, the dismissal was due to incapacity.  The Commissioner had then afforded the parties to file written submissions in respect of the preliminary point raised.

. . . . .

[12]     In its written submissions, the Applicant contended that the evidence pertaining to Bakker’s employment prior to 1 March 2012 was relevant as it was meant to demonstrate that B performed poorly and that inter alia, his conduct had created a situation where BHP Billiton no longer wanted him to be involved in its projects or be employed on its sites. It was further contended that the Applicant had no option but to remove B considering that its contract with BHP Billiton was coming up for renewal, and that the removal of B from the BHP Billiton sites was directly related to the events which transpired from 2009 to January 2012.  It was also submitted that the letter of 9 July 2012 clearly referred to the history of the matter and relationship with BHP Billiton, and that the Applicant’s case was that the events prior to 1 March 2012 were inextricably linked to the dismissal, and constituted relevant and material evidence which explained its decision as recorded in that letter.

[13]     Submissions made on behalf of the Applicant were further to the effect that it remained its primary case that B’s dismissal related to incapacity, and that whether B was aware of the reasons for his dismissal was a matter which could only be answered at the end of the hearing after all the evidence had been led.

. . . . .

[35]     Having been afforded an opportunity to make written submissions, the Applicant reiterated that the dismissal was related to incapacity, or alternatively, that the dismissal was at the behest of a third party. In these proceedings, Mr van der Westhuizen on behalf of the Applicant relied heavily on the last ground as being the reason for the dismissal.  It is accepted that there may be instances where a dismissal is argued to have occurred at the behest of a third party.

Be that as it may, the duty was upon the Applicant when the Commissioner made initial enquiries, to categorically state that this indeed was the reason for the dismissal, and not to vacillate in that regard.

[36]     The Applicant with its approach to the simple question posed by the Commissioner made the latter’s task of determining what evidence would be relevant even more onerous. To have allowed the Applicant carte blanche in regards to all manner of evidence it sought to lead would have made it untenable to conduct proceedings in an expeditious manner, let alone make it impossible for B to meet the Applicant’s case.  One wonders for instance what would have been the relevance of allegations of infidelity against B, or the issue on non-payment of his bonus to the extent that his dismissal is alleged to have been based on incapacity or retrenchment.