Lepadima and Progress Guttering (Pty) Ltd (2008) 29 ILJ 199 (CCMA)

Judgment
DREYER, COMMISSIONER:
Details of hearing and representaions

The hearing was held at the Pretoria offices of the CCMA on Monday 4 June 2006. The applicant, Mapere Twist Lepadima, was present. The respondent was represented by Mr Ray Patterson, director, and Mr Louis Pienaar of an employers’ organization.

Issued to be decided

The issued to be decided in terms of the Labour Relations Act is whether the applicant was dismissed and, if so, whether this was fair, and, if not, the appropriate remedy.

Background to the disputes

The applicant installed gutters. He was in service since 13 October 2005 and his services terminated in December 2006.

The applicant’s services were terminated after he informed his employer that he would not be able to work on Saturday mornings during 2007 as he wished to study.

He had no contract of employment and had not been given a copy of the company disciplinary code and procedures.

He earned R279 per week. Survey of evidence and argument Respondent’s case

1 The director, Ray Patterson, stated that it had been the company policy for 15 years that the dates that employees are required to work overtime on Saturdays during a new year are given to them at the end of the previous year. At the time the applicant said he could not work on Saturday mornings as he wanted to study. Mr Patterson stated that he told him that the company can’t make exceptions. He must work those days. It would set a precedent to allow him Saturdays off. He left. He did not return to work when the company started on 8 January but came on Friday 12 January 2007 to collect his pay and asked for his UIF. Mr Patterson said he had been running the company for 18 years – he must work Saturdays. The applicant was one of 35 employees. He was not dismissed. He left of his own accord.

2 The company representative said there was no letter of resignation and no letter of dismissal. The applicant was asked to come back to work and did not. The company did not at any stage say that it would not address the issue of study or working on Saturdays: ‘If he had approached us it would have been

conducively addressed. Should we have had the opportunity he would possibly have been favourably considered.’ He deserted during the period between 8 and 11 January. He should have been back on 8 January. On the 12th he spoke to Mr Patterson who at no stage had dismissed him. He did not resign. He just stayed away. The company did not know his agenda.

3 During the cross-examination of Mr Patterson by his representative, Mr Patterson said the applicant did not come with his course content. He had ‘not declined the development of this man’. The representative stated that being a fair man Mr Patterson had stated the historical company policy and invited the applicant for further deliberations concerning his studies and work on Saturdays. The applicant did not come back on 8 January. He did not contact the company and returned on 12 January demanding monies due to him as well as his UIF. He took the money and deserted. There was no letter of resignation. In terms of the BCEA a resignation must be in writing. He deserted of his own accord. He had not laid a grievance or consulted any other employee. There had been no further attempt to raise any other issue with Mr Patterson. Through his own actions the applicant had destroyed his relationship with the company.

Applicant’s case

1 He wanted to study information systems at Unisa, which would have required him to attend classes every Saturday morning. He was in the process of registering. He told Mr Patterson this at the end of 2006. They could not reach an agreement. Mr Patterson said it was his company and in that company everyone had to work Saturdays – there were no exceptions. He was told that he did not fit into the system. Others were willing to work Saturdays while he was not. He said that if he did not want to work Saturdays he had to leave. Mr Patterson fired him although he did not give him a letter of dismissal. In the end he was unable to enrol at Unisa as he had no income due to his termination.

2 The applicant said he did not resign although Mr Patterson wrote on his UI-19 (UIF form) that he had resigned. This means he was unable to claim unemployment insurance. When the Department of Labour told him this he went back to the company (on 11 January) to query this. He spoke to a Mr Laubscher who told him that they ‘were over with him’. Laubscher refused to allow him to speak to Mr Patterson and told him that he would convey whatever he needed to say to Mr Patterson. The applicant was unhappy and said that he wanted to see Mr Patterson personally. He then left. He returned on 12 January and Mr Patterson saw him. Mr Patterson wanted to know why he was there. He responded that Mr Patterson had told him that he must decide. If he did not want to work Saturdays and Sundays and public holidays he must leave. He then asked that all his benefits be paid to him and that the UI-19 formed be changed. Mr Patterson told him to come back later for the R279 wages still owed him. He received his UI-19, dated 12 February, indicating that his services terminated on 15 December 2006. This was the second form he received and which still stated that he had resigned.

3 He was late back at work in January 2007 due to transport problems. He went back to get his last week’s wage owed since December as the company pays wages one week later than the week worked.

4 He requested compensation for unfair dismissal.

Analysis of evidence and argument

The facts show that the applicant lost his job when he wanted to study on Saturday mornings and his employer would not excuse him from Saturday overtime to enable him to do this. The applicant is a 24 year old man keen to improve his occupational prospects through part-time study. The action of the respondent is in contravention of the overtime provisions in the Basic Conditions of Employment Act 75 of 1997 which determines that overtime may only be worked by agreement and which agreement only lasts for one year.

Section 10 of the BCEA states the following:

‘(1) Subject to this Chapter, an employer may not require or permit an employee to work-

1. (a)  overtime except in accordance with an agreement;
2. (b)  more than ten hours’ overtime a week.

(1A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day.

(2) An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked.

(3) Despite subsection (2), an agreement may provide for an employer to-

(a) pay an employee no less than the employee’s ordinary wage for overtime and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked; or

(b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.

(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.

(b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

(5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

(6) (a) A collective agreement may increase the maximum permitted overtime to 15 hours per week.

(b) A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months.’

The facts contradict the respondent’s argument that the applicant was not dismissed but voluntarily abandoned his employment. In order to study on a part-time basis, continued employment for the applicant with the respondent became intolerable due to the respondent’s policy of enforced overtime work. The evidence shows that the applicant was dismissed in terms of s 186(e) of the Labour Relations Act being the termination of a contract of employment by an employee with or without notice because the employer made continued employment intolerable for him. It was not necessary for the applicant to have resigned formally. Grogan, the foremost current exponent of labour law, says the following on this in Workplace Law (Juta 8 ed, 2005) at 112-13:

‘The fifth form of statutory dismissal is the termination of the contract of employment by the employee with or without notice ”because the employer made continued employment intolerable for the employee’ – in other words, where employees resign or otherwise repudiate their contracts because they are left with no other option but to do so by the employer’s conduct.

Such coerced resignations or departures are commonly known as ”constructive dismissals’. The employees concerned are deemed to have been dismissed even though they have themselves terminated the contract. The employees need not have formally resigned, however; constructive dismissal can be proved even when the employees simply left their employment in circumstances that would otherwise have amounted to abscondment.’

I cannot accept the respondent representative’s argument that the applicant could not have been ‘constructively’ dismissed as he did not resign. The extract from Grogan (quoted above) makes it clear that a resignation is irrelevant. It is also odd that the respondent wrote on his UI-19 form that he had ‘resigned’. This had the unfortunate consequence that the applicant was unable to claim unemployment insurance.

The respondent’s representative also made much of the applicant’s delay in returning to work in January. This is irrelevant. Mr Patterson’s evidence was clear and unambiguous – the applicant was told in December 2006 that if he did not work on Saturdays there was no job for him with the company. It was therefore clear to the applicant that if he intended studying information systems at Unisa there was no longer work for him with this company.

The respondent’s representative’s attempts to make it appear that Mr Patterson would have ‘conducively’ considered a request by the applicant to be allowed to attend classes on Saturdays was unconvincing. Mr Patterson was adamant that the policy in his company concerning Saturday work was unassailable.

In my view to disallow a young employee the opportunity to advance himself by requiring that he work overtime that would prevent him studying, is in contravention of the Basic Conditions of Employment Act and also contrary to public policy concerning skills development.

I find that the applicant was dismissed and that that dismissal was both procedurally and substantively unfair. He is entitled to the compensation he

requested. I consider eight months’ compensation to be fair in the circumstances.

He earned R279 per week or R1 208.07 per month. Award: GAPT1447-07

I find that Mapere Twist Lepadima was dismissed and that his dismissal was both substantively and procedurally unfair in terms of the Labour Relations Act. The respondent company, Progress Guttering (Pty) Ltd, is hereby ordered to pay him compensation of R9 664.56 in full within 14 days of receipt of this award.