Solidarity obo Wehncke v Surf4Cars (Pty) Ltd (JA63/11) [2014] ZALAC 6 (20 February 2014)

Principle:

A dismissal is automatically unfair when the dismissal is effected for the purposes of compelling the employee to agree to the employer's demand and such dismissal is temporary, pending the acceptance of the changes to the terms and conditions of employment. Only conditional dismissals can fall under section 187 (1) (c). That distinguishes them from the broader category of dismissals where the employer - irreversibly - has terminated the employment contract.

Facts:

The employee's appeal was primarily against the LC's view that the dismissal was not automatically unfair, as the employee had failed to prove that the purpose of his dismissal was to compel him to amend the terms of his employment. The other basis of the appeal was that the LC had failed to consider his alternative claim for unfair dismissal under section 188(1) of the LRA (ie being procedurally and substantively unfair).

The employee was employed as a Data Capturer/Photographer in terms of a verbal agreement in October 2007. Part of his duties included marketing the employer's brand, which involved travelling to see clients. For that purpose he was provided with a company vehicle branded with its logo. According to the employee, the employer did not impose any restrictions on the use of the vehicle when it was made available to him, or require that he pay any excess if the vehicle was involved in a collision.

In March 2008 the employer required the employee to sign a written employment contract. One of the terms of the contract required the employee to undertake that he would be responsible for any excess payable if the vehicle was involved in a collision. The employee refused to accept this, saying it was "too vague". After attempts to resolve this impasse failed, the employer gave him an ultimatum to sign the contract or else face dismissal. He still refused to sign the contract. The employer then gave him written notice terminating his services on one month's notice in June 2008.

The employee referred the dismissal dispute to the Labour Court alleging automatically unfair dismissal, alternatively that the dismissal was procedurally and substantively unfair. Although the employer did not defend the case, the Labour Court found on the facts presented that the dismissal was not automatically unfair. The Court did not however deal with the alternative argument of unfair dismissal. The matter was then referred on appeal to the LAC.

The LAC agreed with the LC that the employee had not proved that the dismissal was automatically unfair, having failed to prove that the purpose of his dismissal was to compel him to amend the terms of his employment. There was no evidence that the dismissal was conditional, and that he would have been reinstated if he agreed to the disputed terms and signed the contract.

The LAC referred to the Fry Metals SCA judgement that distinguished between a dismissal that is 'final' under section 186, and a 'conditional dismissal' as contemplated in section 187(1)(c) dealing with automatically unfair dismissals. The LAC confirmed the approach that only conditional dismissals can constitute an automatically unfair dismissal under section 187(1)(c). In the words of the SCA in Fry's Metals at para 56 "it is this that distinguishes them from the broader category of dismissals where the employer - irreversibly - has terminated the employment contract".

But the LAC did find that the LC had erred in not addressing the employee's alternative claim of unfair dismissal. The LC however did not have jurisdiction to deal with this dispute, as it should have referred as a standard unfair dismissal dispute to arbitration. For this reason, the LAC referred that matter back to the CCMA for arbitration.

Extract from the judgment:

Zondi AJA

[18]   ........... The SCA held that a dismissal would be automatically unfair when such dismissal is effected for the purposes of compelling the employee to agree to the employer's demand and such dismissal is temporary, pending the acceptance of the changes to the terms and conditions of employment.

[19]   In the Fry's Metals case supra Zondo JP observed that there is a difference between a dismissal as defined in section 186 (a) and a dismissal as contemplated by section 187 (1) (c) and that these two categories do not overlap.................

[20]   This approach makes it clear that only conditional dismissals can fall under section 187 (1) (c) and in the words of the SCA in Fry's Metals at para 56 "it is this that distinguishes them from the broader category of dismissals where the employer - irreversibly - has terminated the employment contract".

[21]   Turning to the facts of the instant matter in my view the appellant's contention that his dismissal was automatically unfair should be rejected. The dismissal was not conditional in the sense that it was reversible on acceptance of the respondent's demand to sign the contract incorporating the term to which the appellant had objected and which according to the appellant would have introduced changes to the terms of the verbal contract of employment. The respondent's letter notifying the appellant of termination of his services unambiguously makes it clear that his last day of work was 30 June 2008. That date was final and irreversible........................