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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on ‘The company director as employee’. We look at two new cases: the first deals with resignation by SMS. The second applies the test to review a CCMA award, in accordance with the landmark Sidumo judgment by the Constitutional Court
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Resignation by SMS
Last year we wrote about Jafta v Ezemvelo KZN Wildlife (2009) 30 ILJ 131 (LC) which decided that a job offer could be accepted by SMS. Now there has been a decision about a resignation by SMS. In Sihlali v SABC Ltd (2010) 31 ILJ 1477 (LC) the applicant was employed by the SABC as its legal adviser in terms of a fixed-term contract on 1 August 2006, which was to terminate automatically three years later on 31 July 2009. After certain allegations concerning Sihlali appeared in the press, he sent an sms to the SABC's group chief executive officer on 25 August 2007 indicating that he 'quit with immediate effect'. At a later stage and after having second thoughts, he challenged the legality of his alleged resignation.
Sihlali relied on s 37(4) (a) of the BCEA, which requires that notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee, and para 9 of the SABC personnel regulations, which similarly refers to notice of termination 'in writing'. The court decided that where there is a resignation in the form of a clear and unequivocal intention by an employee not to continue with the employment contract, it is not invalid only because it was not reduced to writing. The court said this is a requirement that may be waived. But there was no need to make a finding in this regard because a communication by SMS is a communication in writing. Section 12 of the Electronic Communications and Transactions Act 25 of 2002 provides:
'A requirement in law that a document or information must be in writing is met if the document or information is -
- in the form of a data message; and
- accessible in a manner usable for subsequent reference.'
The test for review
The Constitutional Court, in Sidumo v Rustenburg Platinum Mines held that the Labour Court could overturn a CCMA commissioner’s award if the decision reached by the commissioner is one that ‘a reasonable decision-maker could not reach’. In the recent case of Bestel v Astral Operations & others (LAC Case JA 37/08 Date of Judgement: 16 September 2010) the Labour Appeal Court spelt out what this test means in practice.
The employee had been the managing director of the employer’s business known as ‘Meadow Feeds’. In November 2004 he was charged with the offence of dishonesty, in that he had instructed a subordinate to procure a false report that a sample of product tested positive for salmonella. He was found guilty after an internal disciplinary enquiry, and dismissed. He challenged the dismissal at the CCMA, where the arbitrator concluded that the dismissal had been substantively unfair and reinstated the appellant.
The employer applied to the Labour Court to review the award in terms of section 145 of the LRA, and was successful. The court set aside the award and replaced it with an award that had the effect of confirming the employee’s dismissal. The employee then appealed to the LAC. Much of this case turned on the evidence of ‘who said what’ and whether it was ambiguous. The usefulness of this case is that the LAC gave meaning to the Sidumo test of ‘a decision that a reasonable decision-maker could not reach’. The LAC confirmed that a commissioner’s finding, on the facts, will be considered to be unreasonable if the finding is:
- unsupported by any evidence;
- based on speculation by the commissioner;
- entirely disconnected from the evidence;
- supported by evidence that is insufficiently reasonable to justify the decision; or
- made in ignorance of evidence that was not contradicted.
The learning from this judgment relates to the application of the Sidumo review test, which in our view is clumsily worded and not easy to apply. The LAC has now provided practical guidelines that will assist users in deciding when to launch review proceedings.
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