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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 team misconduct and collective responsibility. We look at two new cases: the first, deals with whether a resignation by SMS complies with the legal requirement that a resignation must be in writing. The second deals with whether the CCMA has jurisdiction to hear a case where a single employee has been retrenched.
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Can an employer resign by SMS? Is this a valid resignation?
In the recent case of Mafika v SABC Ltd (LC case no: J 700/08) the applicant was employed by the SABC as its legal adviser in terms of a fixed term contract concluded on 1 August 2006. The contract was to terminate automatically three years later, on 31 July 2009.
On 25 August 2007, the applicant sent a sms to the SABC’s group chief executive indicating that he “quit with immediate effect”. The applicant had second thoughts about this and argued that the sms did not constitute a valid termination of his employment contract because any notice of termination of employment had to be given in writing and because in any event, he withdrew his resignation before it was accepted by the SABC. The proceedings were instituted in terms of the BCEA which requires (in s 37(4)) that ‘notice of termination of a contract of employment must be given in writing, except where it is given by an illiterate employee’.
The applicant claimed his remuneration for the period August 2007 (the time of his alleged resignation) to the end of the agreed fixed term. The SABC contended that it was not liable to the applicant because the sms constituted a valid resignation.
The Labour Court held that the sms constituted a valid resignation and restated the basic principle about resignation: When an employee resigns, s/he 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. The court commented that it was not convinced 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 invalid only because it was not reduced to writing – it seems that this is a requirement that may be waived. But the court said that it did not need to make a finding in this regard because a communication by sms is a communication in writing. This is because 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…”
What do we learn from this case: A communication of resignation by sms is therefore a communication in writing, and may be as valid as any other written communication. One of the lessons from this case is that in the heat of the moment employees should think carefully before pushing the ‘send’ button on their cell phone – it can have a serious impact on their careers!
Does the CCMA have jurisdiction to arbitrate when a single employee is retrenched?
At a CCMA arbitration, the employee alleged that her retrenchment and subsequent dismissal were unfair because the employer had failed to properly consult with her as required by s 189 of the LRA. The CCMA found in favour of the employee and directed the employer to reinstate her.
The employer launched an application in the Labour Court to review and set aside the CCMA award. The review was sought on several grounds, one of which was that the CCMA lacked the requisite jurisdiction to hear a dispute which concerned the retrenchment of a single employee in circumstances where such a single employee alleges that the dismissal is unfair for want of proper compliance by the employer with the consultation requirements set out in s 189.
S 189 requires an employer to consult with its employee/s or their representatives before embarking on a retrenchment program. Failure to comply with s 189 could render a dismissal both substantively as well as procedurally unfair. However s 191(12) provides as follows:
“if an employee is dismissed by reason of the employer’s operational requirements following a consultation procedure in terms of Section 189 that applied to the employee only, the employee may elect to refer the dispute either to arbitration or to the Labour Court”.
In dealing with the review, the Labour Court took the view that the words “following a consultation procedure in terms of s 189” meant a consultation process that conformed with s 189 in all its requirements. That is to say a single employee who disputes his/her dismissal for operational requirements will have the election, as set out in the section, only if the single employee accepts that the consultation procedure in terms of s 189 had been duly complied with. On the Labour Court’s interpretation, a single employee could then only challenge the substantive fairness of a retrenchment dismissal through arbitration in terms of s 191(12) – if the employee wished to challenge the procedural fairness of the retrenchment, the employee would have to refer that dispute to the Labour Court.
The matter was referred on appeal to the Labour Appeal Court. The LAC in Bracks NO and CCMA v Rand Water and another (LAC Case no JA2/08)held that to interpret s 191(12) as the Labour Court did, defeated the very purpose of the section. While s 191(12) does not expressly pronounce upon the jurisdiction of the CCMA, the section provides that when a single employee disputes the fairness of his/her dismissal for operational reasons, and where such a dispute remains unresolved after conciliation, the single employee has a choice either to refer the dispute to the CCMA for arbitration or to the Labour Court for adjudication.
The LAC held that the CCMA does have jurisdiction in terms of s 191(12) to hear disputes about the procedural or substantive fairness of a dismissal for operational requirements involving a single employee. This judgement accords with the previous judgement of Scheme Data Services (Pty) Ltd and Myhill & Others (LC case no JR 1456/06) and provides certainty on this situation.
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