REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 104 / 2014
In the matter between:
JENNIFER VALERIE IRVING
Applicant
and
AMIC TRADING (PTY) LTD
Respondent
Heard: 8 August 2014
Delivered: 31October 2014
Exception – non compliance with Rule 6 of the Court Rules –
Summary:
principles of exception considered
Practice
and procedure
–
conduct by legal representatives
–
legal
representatives have a duty to court to behave responsibly and in promoting
expeditious litigation
Exception – part of exception upheld – portion statement of claim struck out –
other grounds of exception dismissed
JUDGMENT
SNYMAN, AJ
Introduction
2
[1]
The respondent has raised a number of exceptions to the applicant‘s
statement of claim. To date, no answering statement has been filed despite
the statement of claim having been already filed on 27 February 2014, simply
because of these exceptions having been raised. The exceptions came before
me on 8 August 2014, and it quickly became apparent that it was a situation
that could have been entirely avoided if the legal representatives of both
parties behaved responsibly and kept emotions out of the litigation.I will
address this kind of conduct in this judgment, hopefully to serve as future
direction in the conduct of litigation in the Labour Court by parties‘ legal
representatives.
[2]
The respondent‘s notice of exception to the statement of claim was filed on 17
March 2014, in which the respondent contended that the statement of case
was vague and embarrassing, did not contain sufficient particularity to sustain
a cause of action, and was fatally defective. The applicant was given 15 days
to remove these causes of complaint. The applicant did not seek to amend
the statement of claim. Instead, and in April 2014, the applicant filed a notice
objecting to the respondent‘s exception because this exception was filed out
of time, and simultaneously applied for default judgment. The respondent
opposed the applicant‘s default judgment application. The respondent also
applied for condonation for the late filing of its exception. Then, and on 16
May 2014 the respondent filed a further notice of exception to the effect that a
notice of intention to amend filed on 30 April 2014 by the applicant, was an
irregular step. This was followed up on 23 June 2014, by the respondent then
applying that the applicant‘s notice of intention to amend to be set aside,
despite the fact that there was no notice of intention to amend on the court file
before me.
[3]
When this matter finally ended up being argued, the amendment application
by the applicant had been abandoned, rendering the respondent‘s second
exception of 16 May 2014 to be moot. It would seem that the application for
condonation by the respondent for the late filing of its first exception was no
longer opposed, despite suggestions by the applicant in argument that the
applicant wanted to ‗reinstate‘ such opposition. In the end, and what really
3
remains before me for determination is simply the respondent‘s exception of
17 March 2014, and I will now proceed to decide whether this exception itself
has any merit.
Background facts
[4]
The respondent, as stated, has taken issue with the applicant‘s statement of
case as being an irregular step in the proceedings, in the form of the
exception of 17 March 2014, instead of filing an answering statement. In
order to decide if the statement of case indeed constitutes such an irregular
step, a proper and complete consideration of the whole statement of case, as
it stands, is necessary. In Eagleton and Others v You Asked Services (Pty)
Ltd,1 the Court said that
‗… in deciding the exception, the factual allegations in the statement of claim
must be taken as correct and no extrinsic evidence should be taken into
account except, where applicable, the documents attached to the statement
of claim.‘
[5]
I am compelled to say that the applicant‘s statement of case contains a lot of
irrelevant information and particulars, which do not serve to promote
understanding of the applicant‘s case, but instead creates confusion. It is not
necessary to set out each and every fact that may arise in the proceedings, in
the statement of case, in the kind of detail the applicant shoes to do. It is only
necessary to set out the core factual matrix of the applicant‘s case. In short,
often less is better than more, especially where it comes to pleadings.
[6]
The applicant‘s statement of case, on face value and cursory reading, does
appear to contain contradictions, which I will address hereunder. But, as I
have said, the statement of case must be properly considered, as a whole,
together with the bundle of supporting documents that accompanied it and
was also filed along with it. What actually went wrong in this matter, in my
view, has little to do with the statement of case itself, but rather what became
an altercation between the two attorneys of the parties, and then the
consideration of the statement of case as tainted by this altercation.
1
(2009) 30 ILJ 320 (LC) at para 17.
4
[7]
It all started on 28 February 2014, when the respondent‘s attorneys wrote to
the applicant‘s attorneys, acknowledging receipt of the statement of case on
17 February 2014, but indicating that the attorney dealing with the matter was
involved in a serious motor vehicle accident and was still recovering from his
injuries. An indulgence was sought until 17 March 2014 to file an answering
statement.
[8]
The response from the applicant‘s attorneys was not a consent to the
indulgence. Rather, the approach adopted was an opportunistic one, being
that the applicant would not oppose the respondent‘s application for the late
filing of its answering statement, provided the respondent reciprocated with
indulgences in three other matters the applicant‘s attorneys had against the
respondent. On 4 March 2014, the respondent‘s attorneys agreed to the
demand of the applicant‘s attorneys in this regard. But clearly, in my view, this
founded resentment.On 14 March 2014, the respondent‘s attorneys requested
the applicant‘s attorneys to clarify whether the statement of case related to an
alleged automatic unfair dismissal or a resignation constituting an alleged
automatic unfair constructive dismissal.The answer from the applicant‘s
attorneys was that both claims would be pursued in the alternative, which
statement in my view actually contradicted what was really the case made out
in the statement of case, and was simply the applicant‘s attorneys being
obstructive.
[9]
The
respondent‘s
attorneys
reciprocated
with
their
own
piece
of
obstructiveness. Despite saying that an answering statement would be filed
by 17 March 2014, the respondent‘s attorneys instead did not file an
answering statement, but an exception. At its core, the complaint of the
respondent is based on alleged mutually contradictory causes of action of
dismissal and constructive dismissal, and that of alleged discrimination, an
automatic unfair dismissal related to a transfer, and a dismissal for operational
requirements. From this point on, it all went rapidly downhill.
[10]
In the next bout of tit for tat, the applicant‘s attorneys in documents served on
the respondent at the end of March 2014, firstly stated that they had only
consented to an answering statement being filed by 17 March 2014 and not
5
an exception, and because what was filed was an exception, the respondent‘s
attorneys had to apply for condonation and in effect provide proof of the
attorney being injured as aforesaid. Also, and despite knowing the matter
was opposed, the applicant‘s attorneys, instead of simply engaging the
respondent‘s attorneys in the exception, applied for default judgment. The
application for default judgment, which included the objection to the exception
itself, went further than just dealing with the issues. It was contended by the
applicant that the respondent was deliberately not addressing the case itself,
and was prolonging and procrastinating the proceedings. This process filed
by the applicant, needless to say, sparked a response from the respondent‘s
attorneys on 17 April 2014, which included saying that the application for
default judgment was premeditated and justified a punitive costs order and
complaining about the statements made concerning its intentions.The
respondent also applied for condonation for the late filing of its exception.
[11]
From the pleadings, it appears that the applicant‘s attorneys must have made
application on 30 April 2014 for the amendment of the statement of case,
even though I could find no trace of this application on the Court file. I say
this, because what was indeed in the Court (and I have referred to this above)
is a further exception by the respondent brought on 16 May 2014, this time to
the proposed amendment referred to.But in the end, and so I was told in
Court, this amendment of the statement of case by the applicant was never
pursued, as the applicant decided to oppose the original exception.
[12]
The final chapter in this sorry saga then unfolded in Court when this matter
was argued, where both parties presented emotive and personal arguments
about one another, with contentions of vexatious and frivolous behaviour by
either party against one another, and reciprocal requests for punitive costs.
As I will now address, this is simply not how litigation must be conducted.
The issue of the exception
[13]
As stated above, all that actually remained for determination is the exception
of 17 March 2014. This being the case, I refer to De Klerk v Cape Union Mart
6
International (Pty) Ltd2 where the Court said:
‗An exception is a legal objection intended to address a defect inherent in the
other party's pleadings. Two categories of exceptions are generally
recognized in this regard, namely – 19.1 where the pleading is vague and
embarrassing; and 19.2 where the pleading lacks averments which are
necessary to sustain an action or defence. ‘
[14]
Also in dealing with an exception, the Court in Eagleton3 quoted with approval
the following passage in Erasmus Superior Court Practice:
‗An exception is a legal objection to the opponent's pleading. It complains of a
defect inherent in the pleading; admitting for the moment that all the
allegations in a summons or plea are true, it asserts that even with such
admission the pleading does not disclose either a cause of action or a
defence, as the case may be. It follows that where an exception is taken, the
Court must look at the pleading excepted to as it stands: no facts outside
those stated in the pleading can be brought into issue and no reference may
be made to any other document…
The object of an exception is to dispose of the case or a portion thereof in an
expeditious manner, or to protect a party against an embarrassment which is
so serious as to merit the costs even of an exception…
An exception that a pleading is vague or embarrassing will not be allowed
unless the excipient will be seriously prejudiced if the offending allegations
were not expunged. The effect of this is that the exception can be taken only if
the vagueness relates to the cause of action. ….
The test applicable in deciding exceptions based on vagueness and
embarrassment arising out of a lack of particularity can be summed up as
follows:
(a)
In each case the Court is obliged first of all to consider whether
the pleading does lack particularity to an extent amounting to
vagueness. Where a statement is vague it is either
meaningless or capable of more than one meaning.
2
3
(2012) 33 ILJ 2887 (LC) at para 19.
Id at para 14.
7
(b)
If there is vagueness in this sense, the Court is then obliged to
undertake a quantitative analysis of such embarrassment as
the excipient can show is caused to him or her by the
vagueness complained of.
(c)
In each case an ad hoc ruling must be made as to whether the
embarrassment is so serious as to cause prejudice to the
excipient if he or she is compelled to plead the pleading in the
form to which he or she objects. A point may be of the utmost
importance in one case, and the omission thereof may give
rise to vagueness and embarrassment, but the same point
may in another case be only a minor detail.
(d)
The ultimate test as to whether or not the exception should be
upheld is whether the excipient is prejudiced…
The plaintiff cannot, in answering to the exception, rely on the fact that, apart
from the allegations in the summons, the defendant of his or her own
knowledge knows what case he/she is required to meet. …. It must be borne
in mind that the summons is for the information of the court as well as of the
plaintiff.'
[15]
I agree with the above and intend to apply the above principles equally in the
current matter. But added to this, and importantly, in the Labour Court dispute
resolution process as established by the Labour Court Rules4, particular
emphasis is placed on the pre-trial proceedings and resulting pre-trial minute.
These pre-trial proceedings are in effect a compulsory further opportunity
where the facts relied on by the parties can be properly recorded (which
includes a determination of which facts are in dispute and which are common
cause) and the legal issues are determined and specified. As was said in
Harmse v City of Cape Town:5
‗The rules of this court do not require an elaborate exposition of all facts in
their full and complex detail - that ordinarily is the role of evidence, whether
oral or documentary. There is a clear distinction between the role played by
4
Rule 6(4) as read with the Provisions of Clause 10.4 of the Practice Manual, 2013.
(2003) 24 ILJ 1130 (LC) at paras 8 – 10. See also Davidson and Others v Wingprop (Pty) Ltd (2010)
31 ILJ 605 (LC) at para 31.
5
8
evidence and that played by pleadings - the pleadings simply give the
architecture, the detail and the texture of the factual dispute are provided at
the trial. The pretrial conference provides an occasion for the detail or texture
of the factual dispute to begin to take shape. In terms of rule 6(4)(b) the
parties in the pretrial conference must attempt to reach consensus on facts
that are common cause, facts that are in dispute, the issues that the court is
required to decide and the precise relief claimed.
Accordingly the rules of this court anticipate that the relief claimed might not
have been precisely pleaded in the statement of claim filed. The rules of this
court further anticipate that the factual matters at issue will be dealt with more
fully and precisely in the pretrial conference. The rules therefore anticipate
that the parties at the pretrial conference will have dealt in much more detail
not only with the factual matters but also the legal issues.
When an exception is raised against a statement of claim, this court must
consider, having regard to what I have said above, whether the matter
presents a question to be decided which, at this stage, will dispose of the
case in whole or in part. If not, then this court must consider whether there is
any embarrassment that is real and that cannot be met by making
amendments or providing of particulars at the pretrial conference stage.'
I cannot agree more.
[16]
Considering the above, it is my view that before resorting to a step like an
exception and objecting to a pleading, during the course of the conduct of
Labour Court litigation, the litigating parties must properly consider the
pleading and decide whether a pre-trial conference could resolve any
ambiguity or uncertainty. They should at the very least properly engage one
another in this regard. In other words, it is better to get the process going than
to bog it down in preliminary issues which would just serve to delay
proceedings when it may not even be necessary in the first place. The current
matter is a case in point. Whilst I accept that mutually contradictory causes of
action would ordinarily render a pleading excipiable6, it is entirely feasible that
such an issue can be resolved in a pre-trial conference where the underlying
factual foundation remains identical, but it is the legal conclusion that is to be
6
See Eagleton (supra) at para 24.
9
drawn from the facts that differs.
[17]
An example of what would remain excipiable, is where an applicant party
contends that the applicant resigned because of intolerable working
conditions, but on the other hand contends that the applicant was retrenched
by the respondent. Clearly, one cannot resign and be retrenched, and this
should first be remedied by an applicant before a respondent can be expected
to plead. But, and on the other hand, an applicant that was retrenched by the
respondent could contend that the dismissal is an unfair operational
requirements dismissal, but also that the very same dismissal was
automatically unfair because it was a retrenchment in the context of a section
197 transfer. Whilst in this latter example there are mutually contradictory
causes of action, more often than not, the factual matrix would be the same
and the pre-trial can resolve whether the applicant wishes to pursue either the
one or the other cause of action, or both the causes of action in the
alternative7 which would also be competent.
[18]
In short, not all contradictions in pleadings should be immediately be excepted
against. The nature of the contradiction must be properly considered by the
answering party. If the factual matrix remains consistent even where multiple
causes of action are raised, then perhaps resolving such an issue at a pre-trial
would much better serve a process that embraces the concept of expedited
dispute resolution, than pursuing procedural issues like exceptions. Of course,
and if the defects then ultimately simply cannot be resolved at a pre-trial, an
exception can then still be raised, because if the parties cannot resolve it, then
the Court has to.
[19]
I do accept that some defects are such that no pre-trial conference can
remedy the same.
Then of course an immediate exception would be
competent and proper. As the Court held in De Klerk:8
‗In the current case, the respondent's attorneys provided the applicant with
the opportunity to cure the defects raised in the intended exceptions. Although
the applicant addressed some of those, others remain. It would serve little
7
8
See for example De Klerk (supra) at paras 29 – 31.
De Klerk (supra) at para 22.
10
purpose to try to address those exceptions, which are legal and not factual in
nature, at a pretrial conference before they are dealt with in these
proceedings.‘
But what I am saying is that a litigating party should have proper regard to the
alleged defects to try and establish if the defects are such that it can be
resolved at a pre-trial, and the party should not just simply default immediately
to filing an exception. I align myself with the following sentiments expressed
in Chauke v Machine Tool Market (Pty) Ltd9:
‗…. If the aforesaid essentials are not stated, then the statement of case
would be excipiable. But if they are stated, then the respondent should plead
to those essentials. If in the process of doing so, the respondent legitimately
cannot plead to some of the allegations in the absence of particularity, then
the respondent would be at liberty to state as much in its reply. Further
particularity could then be obtained in the process of preparing for trial
through the pretrial process.‘
[20]
Often exceptions cause more problems that they resolve, especially if both
parties are represented by attorneys. The current matter is once again a case
in point. The fact is that in truth, an exception is an indictment on the legal
representative that prepared the pleading. This is a recipe for escalation of
further conflict in an already adversarial situation. This situation was actually
apparent when this matter was argued before me, where both parties became
somewhat personal and insulting towards one another. What happens is that
cooperation between the parties is shipwrecked and everything becomes
entirely hostile and adversarial in the extreme, with the Court having to often
intervene to resolve problems between the parties. This is entirely destructive
of the primary objective of expeditious dispute resolution under the LRA.
[21]
In Court, I asked Mr Loubser, representing the applicant, to tell me his
understanding of what exactly the applicant‘s case is, and based on this, a
comparison could then be done to see if this case is sustained by the
pleading. Mr Loubser said that in simple terms, the applicant‘s case was one
of automatic unfair dismissal as contemplated by Section 187(1)(g) of the
9
(2013) 34 ILJ 1150 (LC) at para 19.
11
LRA.10 I invited Mr Loubser to then take me through the statement of case to
see if such a cause of action was sustainable on the statement of case, as it
stood.
In conducting this exercise, and in a nutshell, the following was
apparent from the statement of case as to the general factual background in
this matter:11
21.1 From the outset, the statement of case refers to rumours of the
business being sold. Several factual contentions were made in this
regard as part of the background;
21.2 The applicant then contends that the previous owners initially tried to
dispute these rumours, but in the end provided the employees with
notice that there was such a sale transaction;
21.3 On 1 December 2012, the new owners took over and Section 197
applied to this transfer. On 10 December 2012, it was made clear to all
employees by the new owners that no one would lose their jobs, and
employees had no reason for concern;
21.4 However, and since the new owners took over the business, matters
became intolerable. Employees were actually badly treated and there
were a number of unprocedural retrenchments of employees;
21.5 In September 2013, the applicant was told the Johannesburg office
would close and the only office would be in Durban;
21.6 The applicant states that at about the same time, she obtained a
document that passed between senior management of the new owners
explaining how inter alia the applicant could be gotten rid of without
paying her retrenchment pay.This entailed making her an offer of a
position so unacceptable she would never accept it, and once she
rejects this offer, she would be retrenched without severance pay;
21.7 An alternative position was then indeed offered to her, and knowing the
10
Section 187(1)(g) reads: ‗A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5 or, if the reason for the dismissal is- …. a transfer, or a reason
related to a transfer, contemplated in section 197 or 197A ….‘
11
See para 5.1 of the statement of case.
12
intention behind this offer, the applicant then accepted the offer and
accepted the demotion it brought about, so she would not lose her job;
21.8 Having so accepted the offer, the applicant was then very badly treated
in her new position.This unacceptable treatment led to the applicant
emotionally breaking down and informing Sergio Accolla of the
respondent that she would rather resign than work for him. Accolla told
her he accepted her resignation, despite the applicant apologizing for
her conduct and stating she did not want to resign;
21.9 The applicant immediately after the above events indicated in writing
that she had no intention of resigning and did not resign, but the
respondent was adamant that she had resigned and held her to it. The
applicant‘s employment was terminated on this basis.
21.10 When the applicant referred her dispute to the CCMA, she referred a
dismissal dispute, in which she specifically contended that she denied
she resigned but the respondent insisted that she resigned and this had
been accepted. She said in the referral as well that there was no
resignation letter signed by her.
[22]
Based then on the above general factual background, and in terms of the
statement of case, the applicant then proceeds to establish the following
particular factual basis for her claim:12
22.1 The applicant provided further and detailed particulars relating to the
circumstances of the sale of the business referred to under the general
background, and stated that she believed the employees were entitled
to such information which was never disclosed to them;
22.2 The applicant contends that certain of the provisions of section 197
were not complied with in effecting this sale transaction, despite it being
a transaction contemplated by section 197;
22.3 The applicant was unaware of the true date of transfer because of the
12
See para 5.2 of the statement of claim.
13
non compliance with section 197 by the respondent;
22.4 The applicant then proceeds to set out a case that all the
retrenchments of other employees in 2013 was motivated by this
transfer having become effective and the new owners not wanting
these employees. The applicant contends that employees lost their
positions because of the transfer;
22.5 The
applicant
then
states
that
employment
conditions
were
substantially less favourable as a result of the transfer.
[23]
The applicant finally proceeds to set out the legal issues, resulting from the
above facts, in paragraph 6 of her statement of case. It is in this respect that
the respondent then raised its objections and contended that defects exist in
the statement of case. From the notice of exception, these exceptions raised
are, in short:
23.1 As a first ground of exception, the respondent states that in her
statement of case under the background facts, the applicant alleged
that she terminated her employment relationship by resigning.
The
respondent then complains that in paragraph 6.1 of her statement of
case, the applicant was now contending that she was dismissed by the
respondent;
23.2 The second ground of exception raised by the respondent is that the
applicant in terms of paragraphs 6.12 and 6.13 of her statement of case
was alleging she was dismissed pursuant to a retrenchment exercise
flowing from a transfer of a business, despite her having also alleged
that she resigned under intolerable circumstances as set out in
paragraph 6.14 of the statement of case;
23.3 The third ground of exception is that the applicant does not set out how
she was dismissed or how her employment terminated, and she does
not rely on the fact that her resignation would be deemed to be an
automatic unfair dismissal;
14
23.4 The fourth ground of exception is that the applicant alleges she was
discriminated against in terms of the provisions of section 187(1)(f), but
does not provide the prohibited ground of such discrimination.
I will now, seriatim, deal with each of these four individual grounds of
exception. And in so determining, I am mindful of what the Court said in First
National Bank of Southern Africa Ltd v Perry No and Others13 where it was
held as follows:
‗The matter was decided as on exception. This has two relevant
consequences. The excipients have to show that the pleading is excipiable on
every interpretation that can reasonably be attached to it: Theunissen en
Andere v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A) at 500E F. Then the plaintiff, FNB, is confined to the facts alleged in the particulars of
claim ….‘
The first ground of exception
[24]
The respondent‘s first ground of exception is based on what is in my view a
clear misconstruction of what the applicant has actually said in her statement
of case as to the circumstances giving rise to her termination of employment.
In fact, and in my view, this is an excellent example of how this misconception
could easily have been removed in an open and frank discussion between the
parties at a pre-trial conference. In response to simple questions I asked Mr
Loubser for the applicant, which could easily have been asked by the
respondent‘s attorneys in a pre-trial conference, he stated that it was never
the case of the applicant that she resigned.
[25]
The case that the applicant did not resign is in my view readily apparent from
a proper reading of the statement of case. She never said in the statement of
case that she resigned. Certainly, she never submitted a resignation letter or
notice. All the applicant said in her statement of case is that she told Accolla
that she would rather resign than work for him. The case of the applicant is
then that Accolla pounced on this statement and ‗accepted‘ this purported
resignation, despite the applicant saying she did not want to resign and this
13
2001 (3) SA 960 (SCA) at para 6.
15
was never her intention. The applicant then specifically pleaded that if what
she did could be seen as a resignation, she immediately asked to withdraw it,
and Accolla refused. The applicant then confirmed in writing on 19 September
2013 that she had no intention of resigning, but Accolla remained firm in his
initial view. The applicant referred an unfair dismissal dispute to the CCMA,
which remained unresolved, and in which referral which she denied she
resigned. It is clear that the applicant at all times contended that she was
indeed dismissed by the respondent and never resigned. This dismissal was
founded in the conduct of the respondent.
[26]
In fact, and as a matter of law, a dismissal can be established by the conduct
of an employer, without the employee actually being told that the employee is
dismissed in such words. In SA Post Office v Mampeule14 the Court dealt with
the definition of ‗dismissal‘ in Section 186(1)(a) and said:
‗The proper interpretation of 'dismissal' in s 186(1)(a) of the Act is pivotal to a
decision in this matter. The subsection defines 'dismissal' as follows: '. . . an
employer has terminated a contract of employment with or without notice . . .'.
I am in agreement with the court a quo that 'dismissal' means any act by an
employer which results, directly or indirectly, in the termination of an
employment contract.‘
In circumstances comparative to the kind of case raised by the applicant in
casu, the Court concluded:15
‗In the absence of a clear explanation by the SAPO as to why Mampeule was
suspended and why it belatedly used the 'automatic termination' provision in
its articles of association and considering its response as adverted to above,
the inference is overwhelming that SAPO's conduct was designed to avoid its
obligations under the Act. ….‘
As stated, this is the kind of case the applicant seeks to advance in the
statement of case.
[27]
14
15
I have also had occasion to deal with this issue of dismissal by conduct in Trio
(2010) 31 ILJ 2051 (LAC) at para 12.
Id at para 24.
16
Glass t/a The Glass Group v Molapo NO and Others16 and said:
‗In this matter, it is clear that there was no notice of dismissal given to the third
respondent. On the common cause evidence, she was never informed she
was dismissed — both parties in fact agreed in the evidence on record that
Summers specifically told the third respondent on 4 August 2011 that she was
not 'fired'. The concept of the existence of a dismissal however does not just
entail an employee being specifically notified of being dismissed by an
employer. Section 186(1)(a) defines a dismissal as 'an employer has
terminated a contract of employment with or without notice'.
The point is that by definition the existence of a dismissal can be established
by conduct. An objective assessment of the evidence must be made in order
to establish whether the conduct of the employer is such as to establish a
termination of the employment contract, be it with or without notice. ‘
Again, this is what the applicant is contending in her statement of case in
casu.
[28]
Also, and as referred to above, the applicant specifically pleaded that she did
not want to resign and had no intention of resigning. She states that she
conveyed this to the respondent. So therefore, and as set out in the statement
of case, and even if her conduct was seen by the respondent as her resigning,
this does not mean that she could still not be considered to have been
dismissed by the respondent. In this regard, it is the evidence presented at
trial that would establish her true intention and if her case as pleaded has
substance. But the fact remains, it is a proper and competent case to make
out in a statement of case.
As was said in Sihlali v SA Broadcasting
17
Corporation Ltd :
‗A resignation is a unilateral termination of a contract of employment by the
employee. The courts have held that the employee must evince a clear and
unambiguous intention not to go on with the contract of employment, by words
or conduct that would lead a reasonable person to believe that the employee
harboured such an intention ….‘
16
(2013) 34 ILJ 2662 (LC) at paras 35 – 36. See also Setcom (Pty) Ltd v Dos Santos and Others
(2011) 32 ILJ 1434 (LC) at para 27.
17
(2010) 31 ILJ 1477 (LC) at para 11.
17
The Court further held:18
‗A resignation is established by a subjective intention to terminate the
employment relationship, and words or conduct by the employee that
objectively viewed clearly and unambiguously evince that intention. The
courts generally look for unambiguous, unequivocal words that amount to a
resignation - see, for example, Fijen v Council for Scientific & Industrial
Research where the Labour Appeal Court stated that to resign, the employee
had to 'act in such a way as to lead a reasonable person to the conclusion
that he did not intend to fulfil his part of the contract'.
The requirement of a clear and unambiguous intention to terminate the
contract may often be more easily stated than applied. As Mark Freedland
observes, if a worker utters words seeming to indicate an intention to leave
employment, the utterance may be unclear, the product of uncertainty, or a
manifestation of anger rather than an expression of a definite intention to
terminate the employment relationship. When it is claimed that an employee
has decided to terminate his or her employment of his or her own volition, it
may be necessary to scrutinize the genuineness of that volition to determine,
for example, whether the employee's action is the result of an unacceptable
degree of pressure by the employer, or whether the employer has been overeager to treat an impulsive decision as a settled one ….‘
The applicant in casu disputed she resigned. Her case is that the respondent
said she resigned when she did not do so and had no intention of doing so.
Her case is that the respondent despite this still let her go on the basis that
she resigned. If this case is supported by the evidence, then she would have
been dismissed by the respondent. It is a competently pleaded case.
[29]
I conclude with a reference to a similar kind of case especially in the context
of a contention of an automatic unfair dismissal, being the judgment in
Chemical Energy Paper Printing Wood and Allied Workers Union and Another
v Glass and Aluminium 2000 CC19. The Court held as follows:20
‗The courts look for unambiguous, unequivocal words to amount to a
18
Id at para 13.
(2002) 23 ILJ 695 (LAC).
20
Id at paras 34 – 37.
19
18
resignation (Hughes v Gwynedd Area Health A Authority [1978] ICR 161) and
the courts did not find such to be so when the employee was a mental
defective and he uttered the words in the heat of the moment after an
argument (Barclay v City of Glasgow District Council [1983] IRLR 313).
The notion of a resignation in the heat of the moment was also discussed in
Sothern v Franks Charlesly & Co [1981] IRLR 278 and Sovereign House
Security Services Ltd v Savage [1989] IRLR 115 (CA) where resignation was
held not to be effective which was that of 'an immature employee, or of a
decision taken in the heat of the moment, or of an employee being jostled into
the decision by the employers'
In Sothern's case Dame Elizabeth Lane said the following:
'Those were not idle words or words spoken under emotional stress which the
employers knew or ought to have known were D not meant to be taken
seriously. Nor was it a case of employers anxious to be rid of an employee
who seized upon her words and gave them a meaning, which she did not
intend. They were sorry to receive the resignation and said so.'
If the second appellant did resign, which is not entirely clear, he did so in the
heat of the moment and as such on the above authorities should not be held
to be effective. That he returned the next day to get his employment back is
indicative that he had made such a decision as a result of the circumstances
under which he was acting at the time. ‘
Again, and in the statement of case in casu, the applicant pleaded precisely
such a case (of dismissal) if her conduct on the day may have been seen to
be a resignation by the respondent.
[30]
All the above being said, one contradiction remains. In paragraph 6.16 of the
statement of case, the applicant specifically says that ‗…. The termination of her
employment constitutes an automatic unfair dismissal as per the definition of the
word ―dismissal‖ defined in section 186(1)(f) of the LRA ‘. Section 186(1)(f) reads:
‗Dismissal means that …. (f) an employee terminated a contract of
employment with or without notice because the new employer, after a transfer
in terms of section 197 or section 197A, provided the employee with
conditions or circumstances at work that are substantially less favourable to
19
the employee than those provided by the old employer.‘ (emphasis added)
It is immediately apparent that this section contemplates termination of
employment by the employee party, and it is the applicant‘s actual case, as I
have set out above, that she did not terminate her own employment but it was
the respondent that terminated her employment. Any reliance on or reference
to this section by the applicant in her statement of case, considering her own
case made out, would simply not be competent. In this regard, the
respondent‘s exception would have merit.
[31]
In summary, a reasonable interpretation of the statement of case certainly is
that the applicant was dismissed as a result of conduct by the respondent.
Whilst I must say that the statement of case is not a model of clarity as one
would hope for when it comes to pleadings drafted by attorneys, I am satisfied
that this case is made out in the statement of case, and is properly supported
by the background facts as set out therein.
As was said in Southernport
Developments (Pty) Ltd v Transnet Ltd21:
'The Court should not look at a pleading ''with a magnifying glass of too high
power'. Kahn v Stuart and others 1942 CPD 386 at 391; Purdon v Muller 1961
(2) SA 211 (A) at 214E-215F. In this latter case it was stated: ''Minor
blemishes in and unradical embarrassments caused by a pleading can and
should be cured by further particulars.' '
In my view, this is precisely the situation in casu. The applicant‘s improper
reference to section 186(1)(f) under circumstances where her case
overwhelmingly actually was that she did not terminate the employment
relationship, would be a minor blemish on an otherwise cogent case, and
could have been easily remedied at a pre-trial. But since this is now before
me, I can remedy this blemish with the least amount of prejudice to any of the
parties by simply striking paragraph 6.16 from the applicant‘s statement of
case.
[32]
Accordingly, the respondent‘s first ground of exception does succeed in part.
I conclude that paragraph 6.16 falls to be struck from the applicant‘s
21
2003 (5) SA 665 (W) at 669.
20
statement of case. The remainder of the respondent‘s exception in this regard
however falls to be dismissed.
The second ground of exception
[33]
There is some correlation between the first and second grounds of exception,
in that the second ground of exception is also based on a contention by the
respondent that the applicant has pleaded that she resigned. As I have
already set out above, that was not her case, and her case was that she was
dismissed by the respondent by way of its conduct towards her.
[34]
It is true that paragraph 6 of the statement of case is poorly constructed. The
legal issues set out are set out in improper sequence and set out in such a
manner so as to make for difficult reading. But once again, I am of the view
that a holistic consideration of the entire paragraph 6 of the statement of case
and not just focusing on individual subparagraphs should reasonably have
made it clear to the respondent what the applicant was on about. And in any
event, nothing prevented the respondent from pleading to both scenarios it
envisaged in its exception, considering the fact that the factual matrix as set
out in paragraph 5 remained the same, and then seeking to resolve these
issues in a pre-trial.
[35]
The applicant‘s cause of action she seeks to establish in paragraph 6 of the
statement of case, in my view, is firmly founded in alleged conduct of the
respondent in contravention of section 197.The applicant bases this
contention on the failure to make disclosures to the employees as required by
section 197, the respondent in fact guaranteeing in the transfer that no one
would lose their jobs when this was never the case, the respondent then
embarking upon sham retrenchments without proper reason, and the
respondent then implementing substantially lesser conditions of employment.
The applicant contends that all of this kind of conduct is contrary to section
197 which is intended to protect the jobs of employees.
[36]
In my view, and what the applicant says in paragraph 6.1 of the statement of
case, seen in the proper context against the above case, is that the
respondent (as new owners) had already decided upon transfer of the
21
business to terminate her employment and then pursued a course of action
designed to justify her dismissal based on retrenchment, and this conduct was
a sham.
The applicant concludes by saying that when she accepted the
alternative position in this ‗sham‘ exercise, the respondent then through
implementing intolerable and unacceptable working conditions, caused her
emotional outburst, which it then seized on to bring about her termination of
employment.
[37]
I am thus of the view that the applicant has established a proper cause of
action in her statement of case founded on an automatic unfair dismissal,
being a dismissal related to a transfer as contemplated by section 197. This
the noly case made out. The respondent‘s second ground of exception thus
falls to be dismissed.
Third and fourth grounds of exception
[38]
There is simply no merit in the respondent‘s third and fourth grounds of
exception.
[39]
Dealing firstly with the fourth ground, the applicant has never brought or relied
on a case of dismissal based on discrimination. The respondent, clearly, is
confusing section 187(1)(f), being the automatic unfair dismissal based on
discrimination, with section 186(1)(f), being a defined basis of dismissal when
it comes to section 197 transfers. Section 186(1)(f) has nothing to do with
discrimination, but is actually associated with section 187(1)(g) and a transfer.
The applicant referred in the statement of case to section 186(1)(f) and not
section 187(1)(f). The applicant has thus brought no discrimination case, and
there is no basis for this ground of exception. I have already said that the
reference to section 186(1)(f) falls to be struck out in any event.
[40]
This then only leaves the third ground of exception. It has to a large extent
already been dealt with above. In my view, and in summary in this regard, the
applicant has never contended resignation as the basis for her termination of
employment, but has contended that it is the conduct of the respondent that
caused the termination of her employment. This conduct has been set out
above, and I will not repeat it. Suffice it to say, this ground of exception must
22
fail as well.
Conclusion
[41]
In the circumstances, I am of the view that save for the one instance of
paragraph 6.16 of the statement of case that falls to be struck out, none of the
other exceptions raised by the respondent have substance. The respondent
could and should have answered the statement of case, even with paragraph
6.16 in it. The contradictions and ambiguities that may have existed were not
of such a kind that stood in the way of the filing of an answering statement, if
a proper and focused consideration of the statement of case was simply
conducted. There could have been no prejudice to the respondent if it simply
answered the statement of case as it stood.
[42]
In any event, any possible instances of contradictions or ambiguity could be
readily resolved at the pre-trial conference, considering the content of the
statement of case as it stands, the cause of action actually set out therein,
and the nature of the exceptions raised.
[43]
Therefore, and save for the striking out of paragraph 6.16 of the statement of
case, the respondent‘s exceptions raised thus all fall to be dismissed.
Costs
[44]
This then only leaves the issue of costs. As I have touched on above, it is my
view that what caused the progress of this matter to go astray was the attitude
of the two parties‘ legal representatives towards one another.
Each took
offence to the others‘ conduct, and this completely tainted both of their actions
in the conduct of the litigation. This was glaringly apparent when the matter
was actually argued before me. The applicant should never have used the
initial requested indulgence in this matter to extract indulgences in other
matters, from the respondent. The respondent should never have retaliated
with an exception when it said it would answer on the merits. The applicant
should have never have retailed in turn with a default judgment application
and in essence going back on its initial indulgence afforded, especially
knowing the matter was opposed. And finally, the respondent should never
23
have taken issue with the proposed amendment in the manner that it did. As
said, all of this set this matter on the current path, resulting in intervention by
this court being required when it really should not have been needed in the
first place.
[45]
Whilst it is true that the legal representatives of the parties must vigorously
serve the interests of their clients, they owe a duty to the court to ensure the
proper administration of justice and in particular in the context of employment
law disputes, an expeditious resolution of the dispute with the minimum of
unnecessary formalities. When the dispute becomes personal to the legal
representatives themselves, they inevitably take their eye off the ball and start
to play the man. This in turn demotes the actual dispute between the litigants
to one of secondary importance and will inevitably delay its conclusion. This
kind of conduct must be discouraged. I may also mention that the applicant
filed a 17 page practice note and a 34 page heads of argument which
contained a substantial amount of entirely irrelevant and emotive statements,
which I find unacceptable.
[46]
I intend to mark my displeasure at the conduct of the legal representatives of
the parties in the conduct of this matter, by making no order as to costs,
despite the punitive costs orders each asked for against the other. Perhaps
the fact that each party must pay their own legal representative for what was a
completely wasteful exercise would motivate the parties into focusing on the
real issues and dispute at hand.
Order
[47]
In the premises, I make the following order:
1.
Paragraph 6.16 of the applicant‘s statement of case is struck out.
2.
Save for the striking out of paragraph 6.16 of the statement of case, the
respondent‘s exceptions are dismissed.
3.
The respondent is directed to serve and file an answering statement to
the applicant‘s statement of case within 10(ten) days of date of handing
24
down of this judgment.
4.
There is no order as to costs.
____________________
Snyman, AJ
Acting Judge of the Labour Court
APPEARANCES:
For the Applicants:
Advocate P Loubser
Instructed by:
Bezuidenhout Attorneys
For the Respondent:
Advocate W P Bekker
Instructed by:
Nothnagel Attorneys