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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT BRAAMFONTEIN

CASE NO J4175/02

In the matter between:

CLAYTON MARSLAND Applicant

and

NEW WAY MOTOR & DIESEL

ENGINEERING Respondent

JUDGEMENT

The applicant claims that he was constructively dismissed and that his dismissal was automatically unfair. He relies on sections 186 (e) read with 187 (1) (d) and (f) of the Labour Relations Act 66 of 1995 (the Act).

He alleges that the respondent discriminated against him on an arbitrary ground, this ground being his mental illness, and later because he exercised his rights under the Act to pursue remedies against the respondent for unprocedural conduct and issuing him with a final written warning pursuant to a disciplinary inquiry.

The only witness to give evidence at the trial was the applicant. The respondent did not call any witnesses.

At the close of the applicant's case, the respondent applied for absolution from the instance, on the basis that the applicant had not, at the close of his case, proved on a balance of probabilities that he had terminated the contract of employment. I dismissed this application, and provided the parties with reasons for my decision.

At the conclusion of the trial, in arguing for the dismissal of the applicant's claim, the respondent persisted with its argument that the applicant had not overcome the first hurdle of his claim, namely to prove that he terminated the contract of employment.

It must therefore be firstly decided whether the applicant proved all the necessary elements of constructive dismissal.

In the event that I find that the applicant has proved a constructive dismissal, I will then turn to the question of whether the applicant's dismissal constituted an automatically unfair dismissal as pleaded by the applicant.

A constructive dismissal means, in terms section 186 (e) of the Act, that the employee terminated a contract of employment with or without notice "because the employer made continued employment intolerable for the employee". In other words, it is the employee who brings the relationship (and the contract) to an end, because the employee is left with no option but to do so because of the employer's conduct.

The evidence

It was a common cause fact that the applicant commenced employment with the respondent on 1 February 2001 as the Marketing Manager, and was Head of the respondent's Marketing Department and responsible for the 8 employees employed by the respondent in the Marketing Department.

As the marketing manager, the applicant's task was to raise the respondent's profile, and to increase the exposure of its products locally and in Africa.

The respondent company, which is a family business, rebuilds diesel motors, and supplies diesel generators and power products to different markets, which include the hospitality, manufacturing, IT, health and construction industries.

The respondent company is owned by John Freed ("Freed") who is the Managing Director, Pedro Pinho ("Pinho") is employed as the Financial Director, and Peter Dengler (”Dengler") was the director responsible for the technical side of the business. Two of Freed's sons were employed in the business, Justin and Wayne Freed.

The applicant was responsible for marketing the respondent’s products, raising awareness of its products, focusing on the Company's logos, corporate clothing, and business cards, and generally working on ways to raise the company's profile in the South African and African markets.

Another part of the applicant’s responsibilities was to organise and co-ordinate the respondent's attendance at various exhibitions and business expos to market the company’s products.

The applicant was also responsible for improving the respondent’s relationship with the Department of Trade and Industry (through their trade missions in Africa), who would be able to assist the respondent attend expos elsewhere on the continent.

The applicant was required to attend regular management, sales and production meetings, along with other senior management of the applicant.

The applicant's unchallenged evidence was that except for one incident relating to his leave, from the time he commenced employment in February 2001 up until December 2001, his relationship with the respondent was good, and he believed he played a positive role in the expansion and growth of the company.

In late December 2001, whilst the applicant was on leave, he had a nervous breakdown.

The events surrounding his breakdown was the applicant's wife unexpectedly leaving him after 24 years of marriage, during the family's Christmas holiday in Natal.

Although the applicant has no personal recollection of events , after receiving a letter from his ex wife, he believes that he must have packed his belongings and driven to Johannesburg.

On the 28 December 2001 he was found in his motor car by his sister, who immediately sought medical assistance for him. He was hospitalised until the 27 January 2002. During his stay in hospital he was heavily medicated. The applicant was advised by his doctors that he had had a complete breakdown brought on by anxiety and depression.

On the day that the applicant was supposed to return to work from leave, his sister telephoned Freed and told him that the applicant had had a nervous breakdown and had been hospitalised. Freed inquired whether there was anything he could do for the applicant or for his family, and later Wayne Freed and another employee visited the applicant in hospital.

On leaving hospital, the applicant remained on maintenance medication and required regular visits to his psychiatrist.

The applicant returned to work from sick leave on 1 February 2002. On his return to work, he perceived a distinct change in attitude towards him by the senior management of the respondent.

The applicant testified that at first he was treated with sympathy and understanding, but this changed to being treated, in the applicant’s words, “like I had a contagious disease”.

Freed made crude remarks to him concerning the applicants ex-wife like ”forget about the bitch", "find yourself a slut and get over it", "let us organise that and go and sort this bastard in Cape Town". Whilst the applicant said he found some comments amusing, he was generally appalled and disgusted by the comments.

The applicant testified that soon thereafter, he found himself being excluded from things at work that he had previously been involved in. He was given menial tasks to do. He was told that he needed a break and should go to Durban, and the Eastern Cape and visit customers there.

The applicant testified that in December 2001, prior to his breakdown, he had started working on a pricing structure and development plan for new products.

On his return to work in February, the applicant attempted to continue working on this plan, but was advised by Freed that he should not worry about the plan, it would be taken care of by someone else.

The pricing of new products was a significant aspect of the applicant's job, as he was required to promote these products and to decide where in the market these products would be best suited.

The applicant was excluded from decision-making processes in which he had previously been involved. He testified that on specific instructions from Freed, he was told not to attend the daily sales and production meetings.

When the applicant asked why he was excluded from these meetings, Freed told him that it did not concern him, and it was of no importance to him.

The applicant discovered by chance that he had been excluded from arranging a Company product conference, an area in which he was previously involved.

When he questioned Freed about his exclusion, he was told he did not have to worry about arranging the conference, this had been done by other employees. All he had to do was make sure that representatives from the Farmers Weekly and Landbou Weekblad would attend at certain times.

The applicant testified that he was ostracised by Freed, who no longer discussed problems with him relating to products or customers, whereas before this would have happened quite regularly.

In April 2002, the Freed family, including Freed’s wife, Ruth Freed, put considerable pressure on the applicant to meet their cousin, Jane Couplin. The applicant said he felt uneasy about this pressure because he was still trying to get over what had happened to him, and he was not ready to meet anyone.

After considerable cajoling by the Freed family, the applicant eventually met Jane Couplin for coffee one day over his lunch break. The meeting lasted approximately an hour and a half.

The applicant testified that when he returned to the office the whole Freed family knew about this meeting with Jane Couplin, and everyone was laughing and joking with him about it. He was later charged with misconduct in relation to this meeting because it went beyond his authorised lunch break.

On 19 March, the applicant was involved in an argument with Freed over the pricing of an order. The customer, who was an old friend and customer of the applicant, had not received delivery of goods he had ordered and had called the applicant enquiring about its whereabouts. The only concrete mixer available was in Cape Town, and Freed said to the applicant he was not going to lose money on this contract, and demanded to know from the applicant why he had under-quoted on the contract. The applicant pointed out to Freed that he had priced the contract. Later, the applicant was charged with misconduct for under-quoting on this contract.

In another incident on 6 March 2002, a problem developed with the same customer around an order for two lighting towers. The respondent had only one lighting tower available. Again an altercation developed over the price of the contract. The applicant testified that Freed verbally abused him by stating “you and your fucking shit, I cannot take this crap of yours all the time”.

Later Freed called the applicant into the boardroom and said that he was sick and tired of the applicant's "bullshit", that the applicant would have to sort himself out and that ”this fucking stops” now. When the applicant said to Freed that he was not prepared to lie to the customer about the delivery date, Freed said "I could not give a fucking shit what you do", ”I could not give a shit about you, Technoserve or your integrity".

The applicant was further excluded from work that was his responsibility. The arranging of the respondent's involvement in the Nampo and Royal Shows was summarily removed from the applicant without explanation.

In early May 2002, the applicant had a relapse. He testified that he had felt very anxious, and his doctor said that tremendous stress had been put on him. The applicant testified that the stress had been caused by a combination of factors pertaining to his work environment. He felt ostracised; he felt that he was being ignored and excluded and he felt, in his words, "to me the writing was on the wall that I'm now history as far as the company is concerned". In a nutshell, he was prevented by the respondent from performing his duties and his job.

His doctor wanted to book him off for two weeks, but the applicant said he was not prepared to stay off work for two weeks, and he returned to work on the 13th of May.

He gave a doctor's note to Pinho, whilst explaining his absence. Pinho said to him "This will not carry on". When Freed inquired why he had been off, the applicant replied that he had had a problem. Freed had responded "Ja well, you must get yourself together".

Later that day, the applicant was handed a notice to attend a disciplinary inquiry. The charges against him were poor work performance, poor timekeeping, misuse of company benefits and breaching company rules and regulations.

The applicant testified that he was shocked by these charges, as no one had ever spoken to him except Freed, who had said to him that he had better start adding value to the company, and that he was sick and tired of the applicant's "fucking bullshit".

Pinho handed the applicant the charges and told the applicant he was suspended. He was instructed to go home and prepare for his hearing.

When the applicant asked why he had been suspended, Pinho responded that if the applicant did not remove himself from the property, company representatives would have him removed.

The applicant was unable to obtain an employee at the respondent to represent him at his disciplinary inquiry. He requested further information concerning the charges, and a copy of the respondent's disciplinary code and procedure, which he had never seen. Later, he asked that the hearing be postponed.

On 14 May, the applicant's psychiatrist, Dr Craig Bracken, of his own accord, sent a letter to the respondent as follows:

"To whom it may concern

re Mr Clayton Marsland

I have seen Mr Marsland since 29/12/2001. He was admitted for severe illness needing inpatient treatment. He remains on maintenance medication and has at times still had difficulty coping.

Yours sincerely

(signature)

Dr Craig Bracken"

In a letter to the applicant on 14 May 2002, he was advised that the hearing would be postponed to 16h00 on 16 May 2002.

The hearing proceeded and the applicant denied that he was guilty on any of the charges. During the enquiry, the applicant advanced reasons why he was not guilty on any of the charges. The applicant was not given access to any documents he requested for the purposes of proving his innocence.

In respect of one of the charges relating to a customer, Acton, Pinho, who was prosecuting for the respondent, kept referring to documents he had in front of him in a file. When the applicant asked to see the documents, Pinho refused. The applicant asked the Chair of the enquiry, whether he could obtain information from his desk to advance his defence. After a wrangle with Pinho, the Chairperson permitted this.

Pinho accompanied the applicant to his work station. When he arrived there, he was shocked by what he found. His filing cabinet was open and his computer and desk had been moved. The contents of the applicant's office had been packed into boxes, which lay on his desk and on the floor. He asked Pinho what was going on. Pinho looked embarrassed and said he did not know.

The applicant testified that he could not understand why the enquiry continued because from the state he found his workstation in his dismissal was a foregone conclusion.

He found the document he was looking for and, when he returned to the enquiry and presented it, the Company representatives looked embarrassed and dropped the issue.

The other charges related to the applicant's meeting with Freed's cousin, Jane Couplin, the Technoserve incident on under-quoting, improper timekeeping on a charge about which the applicant had no idea, misuse of the company benefits: the charge was that the applicant's diesel usage was not justified by the time the applicant spent at the office.

When the applicant asked for more specificity as to the charge, for example his usage in relation to other employees, the respondent would not provide this. The applicant said he travelled extensively on behalf of the respondent, and he complied with the reasonable personal usage of the respondent.

Another charge related to the applicant filling his vehicle with the respondents diesel, and then loaning the vehicle to someone else: The applicant explained how, when the vehicle was returned to him, it was returned with a full tank of fuel.

The applicant was charged with using the company's e-mail system during normal working hours for private matters: The respondent's complaint was that the applicant had e-mailed his daughter who was overseas. When the applicant asked to see the respondent's policy on company e-mail use, it was not provided to him. The applicant said in his defence, that all other employees used the e-mail/internet for personal use and they were not disciplined for this. He had sent an e-mail to his daughter not more than once a month.

The applicant was charged with failure to submit detailed cell phone records despite numerous requests to him to do so. The applicant explained his cell phone billing system and usage, which had been approved by Pinho as reasonable.

The applicant was charged with making a false expense claim. His explanation was that he had paid R150.00 for the respondent's registration at an expo, from money he had obtained from petty cash. The applicant paid R100.00 for the registration, but lost the invoice. He was intending to obtain a copy of the invoice and receipt for the registration when he attended the expo, but the Expo was to take place after the hearing.

The amount was deducted from his salary with his consent, although it was his intention to obtain the invoice and the receipt and return these with any outstanding amount once the expo was underway.

The applicant was found guilty on all charges, except the charge of poor work performance. He was issued with a final written warning.

With regard to the poor work performance charge, it was recommended that the respondent follow a corrective approach as required by the Act. No explanation was given by the Chairperson as to why the applicant was found guilty on the other charges.

The applicant was instructed to resume duty on the 23 May 2002, which he did. His return to work was not pleasant and the impression he got was one of “so, you are still here?", which was also said to him.

On 16 May, the applicant received a telephone call from Ruth Freed, who asked him what kind of drugs he was on, as he must have been on drugs or something. She told the applicant that she had listened to the tapes of the disciplinary hearing, and had heard what the applicant had said so he must not "bullshit" her. The applicant then ended the call. Later that evening the applicant was told by his ex-wife that she had received a telephone call from Freed, who had asked her whether the applicant was abusing drugs, narcotics or other substances like alcohol. The applicant testified that his ex-wife got the impression that Freed was trying to obtain information about the applicant from her .

The applicant requested a copy of the transcript of the disciplinary inquiry proceedings so that he could set an appeal in motion. A copy of his letter is at page 37 of the trial bundle. The applicant testified that as at the date of the trial he never received a response to this letter .

On 26 May 2002, the applicant wrote to the chairperson of the disciplinary inquiry noting his appeal.

The applicant noted in his letter that despite being told at the hearing on 16 May 2002, that the proceedings would not be recorded, during the evening of the enquiry Ruth Freed had told the applicant that she had listened to the tapes of the hearing, and that she had a full record of the hearing.

The applicant never received a response to this letter.

When the applicant returned to work after the disciplinary inquiry, he found that his workstation and belongings had all been moved and placed on a desk opposite to where Freed sat. Everything was in a shambles, and his filing cabinet was locked.

The applicant tried to establish where the key to his filing cabinet was. Despite asking for the key on a number of occasions the applicant was never given the key to his filing cabinet which remained locked.

The applicant then discovered in a discussion he had with the receptionist, that he was not allowed to receive any sales calls and that all his calls were to be recorded.

When the applicant approached Freed concerning progress on one of the projects he had been involved in together with the Department of Trade and Industry, namely the exhibition in Ghana, Freed's response was to tell the applicant to cancel the project, because it was "a fucking waste of time", he did not want the applicant "to go on holiday" and he did not want to "waste time and money on the applicant".

When the applicant asked Freed what work he was supposed to do, Freed replied that the applicant had better get busy and show Freed how he was going to add value to the company.

The applicant testified that he did not know how he was going to work, because he was prevented from doing the work that he was supposed to perform, he was trying to look busy doing nothing. Whenever he inquired what he should do, he was told to get on with it and get busy. The applicant testified that when he could have done something constructive, he was denied access to the documents and files, which remained locked in his cabinet.

When the applicant received an enquiry from a potential customer he asked Freed about the correct pricing, but was told by Freed that he must not worry about it, and Freed gave the inquiry to another employee.

In desperation, the applicant wrote a letter to Freed as follows: "John, please advise as to how I should proceed regarding my work and as to what the company will allow me to do. I would also like to know as to when I would be allowed access to my cupboard and files.”

On the 27 May 2002, Freed told the applicant that he better have evidence for his appeal as he (Freed) did not want to waste "fucking time and money" on the applicant with his appeal, and he did not want the applicant to "monkey around", so he had better have his facts right.

On the 28 May, the applicant was told by Freed that he was not required to attend the sales and production meeting, ”it was of no relevance to him”, “he was not involved”, ”it had nothing to do with him“, "it did not concern him”, and ”he must not attend the meeting“.

The applicant stated that he felt by excluding him from these meetings, the company was totally shutting him out of what was happening in company, because at these meetings he would have a chance to communicate with other employees, hear what they had to say, hear what their problems are, hear what the blockages were, and what the applicant could do in planning or further development and how it could assist the respondent. He felt that he was totally shut out.

In fact Freed had said to the applicant he was "damn lucky" to be there as it was, and questioned why he was now filing an appeal, why was he again wasting the "fucking time and money" of the company, and why must Freed work seven days a week to support the applicant.

On the 28 May 2002, the applicant was advised in a memo that all his documents were to be countersigned by either Freed , Pinho or Dengler, and the applicant was prohibited from going to the fax machine to remove documents or send faxes.

The applicant said that this new instruction removed a lifeline from him. As he was in marketing and sales, he had to be able to communicate with people via faxes, he had to be able to receive faxes, and by prohibiting him access to the fax machine, the respondent was terminating his ability to function.

On 28 May, the applicant received an invitation to attend on behalf of the respondent, the United Nations John Victor Promotions briefing, which the applicant had been working on. The applicant thought this would be a good business opportunity. However, he was prevented from going to this exhibition by Freed who told him he was not allowed to go and "that was that". Similarly, the applicant was prevented from attending the Electro Mining Africa exhibition, and the Getaway Show exhibition, all of which were the applicant's projects and all of which were cancelled by Freed.

On 19 June, Freed asked the applicant whether he had permission from him to attend his monthly consultation with his psychiatrist, which was to take place on that day at 16h00.

The applicant responded that he had not had the opportunity yet to speak to Pinho (from whom he normally obtained permission ) about his appointment on that day.

Freed then swore at the applicant, saying he was talking "fucking bullshit" and that he was a "cunt head", a "fucking liar", and a "fucking cunt". He instructed the applicant to follow him to the boardroom, which the applicant did. He told the applicant that he "despised" him, he "hated" him, and that if he ever saw the applicant talking on his cell phone again in his premises he would "smash it" and he would "smash" the applicant's "fucking cunt" of a face.

Freed then called Pinho to the boardroom. Freed told Pinho to "sort this fucking cunt head out" and he asked Pinho if "this fucking bastard" (the applicant) had spoken to him about his doctor's appointment on that day, and Pinho advised him that he had.

Freed also referred to the appeal, calling the applicant "a fucking bastard", "a cunt head" and "a piece of shit". Pinho said to the applicant that he was wasting the respondent's time, and that he was of no use to the respondent, he "was of no value, and added nothing to the company".

He was then told that a new person would hear the appeal, and that the applicant better be ready. Freed then said the applicant thought he was "too fucking clever" and he said he would "sort the applicant out". He told the applicant that he was hiding behind a "fucking kaffir law" and that he was "no good to anyone". Freed said the applicant was just wasting his time and why should he support a "fuckhead like the applicant".

The applicant was told that he would have to apply for leave for the doctor's appointment, yet other employees were given time off for doctors' appointments, without having to apply for leave.

The applicant applied for leave, but it was refused because the respondent said not enough time was given for the request. The applicant therefore had to cancel his appointment with his psychiatrist on that day.

The applicant testified about numerous other instances of gross verbal abuse at this time.

After the 19 June, the applicant testified that he not only felt violated by what had happened to him, but that he felt that Freed may assault him.

In explaining why he did not leave the respondent at this point, the applicant testified that he simply could not afford to leave the respondent's employ financially, he needed the job. He had just been through a terrible divorce, he had a medical problem, and he needed the income and the medical aid. He thought he would try to work through the problems at work.

On 20 June 2002, when the applicant arrived at work, Freed instructed him to go to the boardroom. Once in the boardroom, Freed told the applicant to produce to him what new evidence he had for his appeal. The applicant responded that he was not ready yet for his appeal, but that the evidence would be ready in time for the appeal.

Freed again verbally abused the applicant, accusing him of wasting the company's time. He also told the applicant that the marketing in the company had gone, it was over.

Freed said he knew what the applicant's game was, he knew he had legal advice, he knew what he was playing at, he told the applicant he was stronger than the applicant, and that he would get the applicant. He said he was not interested in the applicant's personal life, and what had happened to the applicant was all because the applicant was "full of bullshit".

When the applicant went back to his workstation, he found a very strange e-mail on his computer. It was from a competitor of the respondent, which appeared to have been sent via his e-mail address, but returned to it because it could not be delivered.

The applicant believes that someone had scanned a document and was trying to e-mail it to the competitor from the applicant's e-mail address. However, it could not be delivered to its intended destination. The applicant believes that someone was trying to set him up, and he reported it to a member of respondent's management.

On the 28 June, during lunchtime, the applicant proceeded to eat his lunch at his desk, whilst he worked, as he often did. His colleagues were also eating at their desks. Freed started screaming and swearing at the applicant, asking him what he was doing, telling him that he knew he was not allowed to eat at his desk, and accusing him of being one of those people who “worked to the clock”. Freed did not take issue with any of the other employees who were eating at their desks at the same time.

The applicant testified about further incidents, including the applicant being prevented by Freed from accompanying a colleague to obtain an order from a customer (Ferreiras), when this was his job, being advised by a colleague (Alison) that Freed had told her to keep an eye on the applicant to see if he ate his lunch in the office, preparing a press release on the respondent and submitting it to Freed and others, and later seeing it in the dustbin.

The applicant's telephone was then barred so that he could not make calls.

The applicant consulted attorneys. He referred a dispute to the bargaining council in terms of item 2(1)(c) of part B of schedule 7 of the Act, in respect of the final written warning , and an alleged unfair discrimination dispute.

On 3 July, the applicant sent Freed a memo requesting information on the new John Deere 250, and requesting the keys to his cupboard. The memo was returned with the latter request encircled by Freed and written next to it "BULLSHIT". This memo appears at page 102 of the Bundle. When the applicant tried to photocopy notes from the John Deere pamphlet for a press release, in front of the respondent's auditors and employees, Freed said to the applicant "get away, voetsak, you don't have to photostat that, get away, you are not allowed to photostat".

The applicant's appeal hearing was heard on 28 June 2002 and on the 6 July 2002, the respondent upheld the findings of the disciplinary enquiry.

From 24 June 2002, the respondent unilaterally changed the applicant's position from National Sales And Marketing Manager to Power Product Salesman. The applicant testified that a Power Product Salesman was one of the most junior positions at the respondent.

On 4 July 2002, the applicant was called into the respondent's boardroom by Freed at approximately 11h35. When the applicant arrived there, he found two people already present, who introduced themselves as representatives of the National Employers Forum. The applicant was instructed to sit down. Freed then informed the applicant that he was going to outsource the marketing of the company and that the applicant's position was going to be done away with. One of the National Employer Forum's representatives, Mr Brendon Sayers, then advised that a process of negotiation was about to take place. He was in the process of explaining five points to the applicant when the applicant's cell phone rang. The applicant answered his cell phone and advised the person on the line, a family acquaintance, that he was in a meeting, and he would get back to him. The call lasted a couple of seconds. The applicant then switched his phone off.

Freed was sitting to the left of the applicant, who was sitting at the head of the boardroom table .

Freed stood up in a rage and said to applicant "how many fucking times have I told you do not use your fucking phone here".

The applicant testified that Freed’s face had blown up, his face was contorted, it was blue and patchy, his eyes were bulging, and spit was coming out of his mouth.

The National Employer’s Forum representatives’ eyes were huge. Freed threw his pen across the table. The applicant said to Freed that he was sick and tired of the intimidation and the verbal abuse. Freed got angrier and angrier telling the applicant ”I will do whatever the fuck I want” and he turned around to the National Employer’s Forum representatives and said “How do you control a fucking animal like this?”.

At this point he was leaning right over the applicant and the applicant felt he was going to be assaulted by Freed .

The applicant stated that he had seen Freed assault another employee by punching him in the face and when he was down on the ground by punching him kicking him.

The applicant also testified that Freed carried a firearm at all times, and he stated that Freed was armed at that meeting.

The applicant feared for his physical safety and thought the only thing that he could do was to remove himself from the situation.

He picked up his belongings that he had taken into the boardroom and walked out. He went to his desk, collected some of his personal belongings and walked out.

The applicant never returned to work, despite telephonic requests from Freed and Pinho to return, and later subsequent requests contained in letters written by the respondent's attorney to the applicant's attorney requesting the applicant to return to work.

The applicant testified that he had seriously considered whether he should return to work, but felt that the abuse had become too much for him, he had tried to deal with it, but now he felt it was going to push him over the edge.

The respondent refused to release the applicant's UIF card unless the applicant agreed to record the reason for termination on the card as ‘resignation’, and it required the applicant to physically collect his card from respondent's premises.

The applicant refused, as he claims he had been constructively dismissed, he did not resign and he used an old UIF card to claim benefits. As a result, he was prejudiced in the amount paid to him for his UIF benefits. The applicant lodged a complaint with the Department of Labour concerning the respondent's conduct.

Later, the applicant struggled to obtain payment of his pension fund benefits. The pension fund administrators told the applicant they would only pay him out on authorisation from the respondent, and the respondent had withheld authorisation. The applicant had to threaten legal action before his benefits were paid. Eventually, when he was about to be paid out, some 10 months after he left the respondent’s employ, the applicant received a call from his ex-wife who told him that Freed had phoned her to tip her off that the applicant's pension fund proceeds were about to be released, and that if she wanted to make a claim against the proceeds she should now do so.

Cross-examination of the applicant

During the cross-examination of the applicant the respondent sought to introduce a document into the proceedings which should have formed part of the pre-trial discovery process.

The document was a letter to the applicant from a firm where the applicant worked after he had left the respondent’s employ, Deutz Diesel Power.

The letter requested the applicant to attend a disciplinary enquiry for, inter alia, dishonest conduct. The applicant admitted he received the letter, which is Exhibit C ,but denies receiving the letter which is Exhibit D. The applicant testified that he resigned from Deutz Diesel Power.

The respondent argued that this letter shows that the respondent is “for want of a better word, a con artist”, and that the contents of the letter show "similar fact evidence, that the applicant has a propensity to be dishonest".

The respondent has not laid a proper basis for the relevancy of this evidence on either of the grounds contended for, and accordingly I find it is irrelevant to the issues in dispute in this matter.

During the trial the respondent gave notice that it was going to challenge the applicant's credibility as a witness, because the applicant referred to a document which was contained in the bundle during his evidence to refresh his memory. The respondent however did not pursue this in argument.

The document in question is to be found at pages 200 to 223 of the bundle. Prior to the trial it appears that the parties were engaged in a dispute over this document and that it was sent for a handwriting analysis.

However, by the time the trial commenced there was an agreement that the document at pages 200 to 223 of the bundle is what it purports to be, namely, the handwritten notes of the applicant. The applicant testified that these notes were contemporaneous. Mr Cassim, for the respondent, disputed this, and also said that he was going to refer to the handwriting expert report in the court file at the conclusion of the trial.

The respondent did not challenge the applicant's claim that the notes at pages 200 to 223 were contemporaneous notes, nor did he attack the applicant's credibility on the basis that he had referred to these notes, nor did he refer this court to the hand writing expert’s report.

Evaluation of the evidence

The only oral evidence before this Court was the testimony of the applicant. As stated above the respondent failed to give any evidence at the trial. The respondent took a huge risk running its case on this basis, particularly when it knew that it faced a claim for an automatically unfair constructive dismissal.

The respondent was legally advised at all times and it knew that the onus would shift to it at various points of the trial. The respondent knew that it was facing a claim for the maximum relief.

In terms of the constructive dismissal claim, once the applicant had proved the constructive dismissal, the respondent knew it would be required to prove that the dismissal was fair.

Once the applicant had established that there was a credible possibility that an automatically unfair dismissal had taken place, the respondent knew that it would then be required to place evidence before the court to prove the contrary.

The respondent did not avail itself of these opportunities to give evidence.

Freed, who attended court every day, was able to give very material evidence as to the true reason for the applicant's dismissal, he deliberately chose not to give evidence or avail himself of the opportunity to rebut the applicant's damning evidence.

The only inference to be drawn from the respondent's failure to give evidence, and in particular Freed's failure to give evidence, is that it would damage the respondent's case.

I have no hesitation in accepting the applicant's evidence. The applicant was a most satisfactory witness, answering difficult questions honestly and candidly. The respondent's cross examination of the applicant did not detract from the probative force of the applicant's evidence.

Has the applicant proved a constructive dismissal?

In order to prove a constructive dismissal the applicant is required to prove the following three the requirements:

• the applicant must have terminated the contract of employment

• the reason for termination of the contract must be that continued employment has become intolerable for the applicant

• it must be the respondent who has made the continued employment intolerable.

(Per Jafta AJA in Solid Doors (Pty) Limited v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC) at paragraph 28.)

The question whether an employee has been constructively dismissed is a jurisdictional fact that must be established objectively. (Per Jafta AJA at paragraph 29)

In its application for absolution from the instance, and at the conclusion of the trial, the respondent argued that the applicant had not established on a balance of probabilities that he had terminated the contract of employment, and accordingly, the applicant's claim must fail.

For this argument, the respondent referred to a number of occasions during the trial where the applicant stated that he did not resign, but that Freed had dismissed him.

The respondent’s defence to the applicant's claim rests almost wholly on this argument. The respondent failed to give any evidence at the trial: it's attitude throughout was that the applicant did not overcome his very first hurdle, and that is to prove that he terminated the contract of employment and that therefore no case had been made out for reply.

The respondent argued that the only evidence before the court is the applicant's evidence and that this evidence comprehensively shows that in fact the applicant did not resign, he was dismissed.

Given the importance of this evidence to the respondent's case it is necessary to examine exactly what the Applicant said in his evidence, and consider this evidence along with all the other evidence and relevant facts, objectively as required by the test set out by Jafta AJA in Solid Doors supra.

The first reference is at Page 174 of the record:

Mr Cassim: And as I understand the question that is put to you and you answered in your evidence-in-chief, I will just read it out so I'm not mistaken, you said: I did not resign. I was forced out of the company. Is that right? On 4 July?

The applicant: That is correct

At page 222

Mr Cassim : Okay and you did not resign by the end of May?

The applicant: No I could not afford to resign

Mr Cassim: In fact according to you, you never resigned?

The applicant: That is correct

Mr Cassim: Now on 4 July when you departed did you have another job?

The applicant: I did not Sir

Mr Cassim: And you have already said in your evidence-in-chief and when I asked you questions that you did not resign?

The applicant: That is correct sir

Mr Cassim: Why did you leave?

The applicant: I was physically threatened, the abuse had got too much, I had got to the stage of where I could not tolerate any more, I felt endangered physically. I couldn't take it, it just became too much. Thereby….

Mr Cassim: And who had inflicted all of this on you? Mr Freed?

The applicant: Mainly.

Mr Cassim: So you're saying that Mr Freed fired you?

The applicant: He dismissed me Sir.

In considering the evidence and whether constructive dismissal has been proved it may be worthwhile to begin by emphasising that constructive dismissal is defined as one of the forms of statutory dismissal. In the other forms of dismissal it is the employer who puts an end to the contract of employment by dismissing the employee.

In a constructive dismissal it is the employee who terminates the employment relationship either by resignation, or otherwise repudiating their contract. When the contract ends in this way it is still called a dismissal.

In fact the Act does not use the words ‘constructive dismissal’, it only uses the word ‘dismissal’: section 186 of the Act states:

"Dismissal" means that –

(e) an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee."

Most importantly, for constructive dismissal, the employee ends the relationship because they are left with no option but to do so by the employer's conduct.

In other words the employee's resignation or departure is coerced, forced, because of the employer's conduct, and such employees are deemed to have been dismissed by the employer even though they have ended the contract of employment.

An analysis of the words chosen by the applicant to describe how he left the respondent (as set out in the above extracts of his evidence) would in my view place the termination of his employment within the ambit of a coerced termination. The applicant's statement that he did not resign, that he was forced out off the company, in my view, meant that he did not voluntarily resign. He did not voluntarily bring the relationship to an end, he was forced to leave the company, he had no option but to leave the company, because of the employer's conduct.

In my view, the applicant is expressing exactly the same sentiment at page 222 of the record, when he states that he did not resign, that he left because the abuse had got too much, that he was physically threatened, that it had got to the stage where he could not tolerate it any more, that he felt physically endangered, that he couldn't take it anymore and that Freed had dismissed him.

What the applicant is saying here is: I was forced to leave as a result of the intolerable conduct of my employer towards me, he constructively dismissed me I did not voluntarily resign or leave my employment.

It is correct, as argued by the respondent, that the only oral evidence before the court was the applicant’s evidence, but there is also documentary evidence in the form of a trial bundle consisting of various documents which according to the pre-trial minute the parties agree are what they purport to be.

In addition, there is the pre-trial minute containing a significant number of agreed facts, and there are the parties pleadings which set out the factual and legal bases for both parties cases.

Mr Cassim urged me to follow the approach adopted by Jafta AJA, in the Solid Doors case in the assessment of the evidence.

I have no difficulty with this. As stated above, Jafta AJA said that the requirements for constructive dismissal must be objectively established.

If regard is had to the following facts, then in my view, the applicant has established that he terminated the contract of employment.

The only oral evidence before this Court is the evidence of the applicant, which, as stated above, I accept without reservation.

The applicant's unchallenged testimony on what transpired on the 4 July 2002 was that after Freed exploded in a rage, verbally abusing him, the applicant told Freed that he was sick and tired of the intimidation and verbal abuse.

After Freed had verbally abused the applicant further, the applicant said he felt physically threatened, he went to his desk, packed up some of his personal belongings and walked out of the respondent's premises and did not return to work for the respondent.

In the weeks after he left the respondent, the applicant received various requests from the respondent to please return to work for the respondent and resume his duties.

One such approach was from Freed himself, another from Pinho, and later, another request was made by the respondent's attorneys in a letter, inter alia, inviting the applicant to return to resume his duties for the respondent.

The respondent's attorneys, in both their letters to the applicant record that the respondent is “genuinely willing to continue with the employment relationship“ and invited the applicant to return to work.

Despite these requests, the applicant never returned to the respondent’s employ.

In the pre-trial minutes, the parties agree that it is common cause that the contract of employment terminated on 4 July 2002.

An assessment of the above facts results in only one conclusion in my view: and that is that the applicant ended the contract of employment on the 4 July 2002.

The next requirement for proving a constructive dismissal, is that the employee must show that that reason for termination of the contract must be that continued employment has become intolerable for the employee.

Again this must be objectively established. It follows that the subjective apprehension of an employee is not the final determinant of whether or not the employer's conduct is intolerable. (See SmithKline Beecham (Pty) Limited v CCMA and others 2000 ILJ 988 (LC ).

In Pretoria Society for the Care of the Retarded v Loots, (1997) 18 ILJ 981 (LAC) at 985, the Labour Appeal Court, formulated the test as follows: the inquiry is whether the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. It is not necessary to show that the employer intended any repudiation of the contract; the Court's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. The conduct of the parties is to be looked at as a whole and its cumulative impact assessed.

There was no problem in the parties’ relationship before February 2002.

However from the time that the applicant returned to work in February 2002, after his hospitalisation for his nervous breakdown, the respondent conducted itself towards the applicant in a way that can only be described as calculated to destroy the employment relationship.

The respondent’s destructive conduct manifested itself in a number of ways, all of which in my view was aimed at creating an unbearable working environment for the applicant.

The evidence, shows that the applicant was subjected to ongoing verbal abuse from the respondent , in particular from Freed of the most offensive and degrading nature, often in the presence of other employees. The verbal abuse by Freed of the applicant got progressively worse, to the point where it was so pervasive and severe that it could only be described as a form of harassment of the applicant.

The respondent‘s counsel tried to suggest to the applicant, that swearing was normal in the type of environment in which the respondent conducted business. However this was rejected by the applicant, who perceived the particular verbal abuse that he was subject to as a personal attack on him.

The respondent' s ongoing verbal abuse of the applicant, was conduct which, in my view, was in itself calculated, or likely to destroy the employment relationship with the applicant, and contributed to creating an intolerable working environment for the applicant.

There could be no legitimate purpose served for the verbal abuse of the applicant, indeed none was proffered by the respondent, and it was conduct that the applicant could not be expected to put up with.

From the applicant's return to work in February 2002, the evidence showed that over a period of time the respondent, without justification deliberately created a situation in which the applicant was unable to perform the job he was employed to do.

The evidence was that the respondent, over time, removed the applicant’s key responsibilities and functions, it denied him access to the information that was necessary for the performance of his job, it cancelled projects that he had undertaken, it prevented him from dealing with customers when this was his function, it prevented him from attending daily meetings of the respondent that he had previously attended, it excluded him from the decision-making processes in which he was previously included, it prevented him from having access to the tools of his trade, by not allowing him to send or receive telefaxes, barring his use of the telephone, locking his resources and information in a cupboard and never providing him with the key.

This conduct was, in my view a concerted strategy on behalf of the respondent to render the applicant’s job impossible to perform and to ostracise him from his fellow employees.

I have no difficulty in finding, that this conduct was in itself calculated or likely to destroy the employment relationship and it was conduct that the applicant could not be expected to tolerate.

The inescapable conclusion that has to be drawn from the respondent's conduct towards the applicant, is that the respondent wanted to destroy the employment relationship.

On the 8 May 2002 the applicant had a relapse, brought about, not surprisingly, from the stressful situation he was experiencing at work. He was required to take sick leave and was absent from work.

On his return to work on 13 May, he was suspended from duty and instructed to attend a disciplinary enquiry. From the evidence before this Court, it appears that the respondent instituted the disciplinary proceedings against the applicant not because there was any genuine reason to discipline the applicant, but because the respondent wanted the applicant dismissed.

The respondent was so set on the applicant’s dismissal, that even before the conclusion of the disciplinary enquiry, it had already ensured that the all the applicant’s belongings were packed into boxes in anticipation of his departure.

When the outcome of the proceedings did not result in the dismissal of the applicant, but a final written warning, the evidence suggests that the respondent was extremely unhappy with this outcome, and resulted in intensified efforts on behalf of the respondent to create an intolerable working environment for the applicant.

Given all the evidence before this Court, it is my view that the applicant has proved that his employer, created a working environment, one which, objectively assessed, made continued employment for the applicant intolerable.

The question was asked of the applicant by his own representative, and by the respondent's representative, why he had put up with such an appalling working environment for the period of time that he had.

The applicant’s response was frank: he simply could not afford to leave the respondent’s employ; from a financial point of view he needed the job. His evidence was that he been through a terrible divorce, he had a medical problem, he needed the medical aid, and he needed the income. He earnestly believed that he would try to work through the problems he had at work.

The respondent argued that I should have reference to the decision of the Labour Appeal Court in Albany bakeries Ltd v Van Wyk and Others (2005) 26 ILJ 2142 LAC, on two grounds, firstly that an employee claiming constructive dismissal, cannot leave his employment when it suits him, and secondly that it is desirable that an employee attempts to find a solution falling short of resignation to preserve the working relationship (Per Pillay AJA at para 28). With regards to the latter, the respondent suggested that the applicant should have made use of the procedures available to him under the Act.

In my view there is no evidence to suggest that the applicant opportunistically chose the point at which he left the respondent. The circumstances around his departure were extensively dealt with in the trial, and do not in any way suggest opportunism on the applicant's behalf.

In summary, the applicant left the respondent when he could not take the abusive working environment anymore. He did not have other employment when he left the respondent.

With regards to the second issue arising from the Albany Bakery decision, namely that it is desirable that an employee should attempt to find a solution falling short of resignation to preserve the working relationship, having regard to all the evidence I am not persuaded that on the 4 July 2002 there was any practical or legal solution available to the applicant to preserve the working relationship, for example like the filing of unfair labour practice as suggested by the respondent's counsel. In any event, the applicant had already done this, his evidence was that prior to his dismissal he had filed an unfair labour practice claim with the Bargaining Council. This step if anything , had aggravated the situation.

Accordingly I find that the applicant was constructively dismissed. However that is not the end of the applicant's claim.

The applicant having established that he was constructively dismissed, is also required to establish that his dismissal was automatically unfair, as pleaded.

Has the applicant proved an automatically unfair dismissal?

The applicant's case is that the respondent discriminated against him because of his mental illness (a nervous breakdown which required hospitalisation, and his subsequent ongoing treatment for depression) such discrimination had the effect of making his continued employment intolerable, thereby forcing him to leave the respondent's employ.

It is also the applicant's case that he was discriminated against for exercising his rights in terms of the Act, when he exercised his right to appeal against the unfair procedure of the disciplinary process and the final written warning issued to him.

The decision of Kroukam v S A Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC ) dealt with the approach to be adopted in determining whether a dismissal is an automatically unfair dismissal. Zondo JP, in articulating one approach for determining whether a dismissal is an automatically unfair dismissal, said that, the court should firstly determine the dominant or principal reason for the dismissal, and if that reason or those reasons fall within the ambit of reasons categorised by the Act as automatically unfair, then the court should find the dismissal to be automatically unfair. (per Zondo JP at 2188 para 102 ).

Zondo JP continues, that even if the reasons are not the principal or dominant reasons for the employee's dismissal the dismissal would still be automatically unfair if such reasons played a significant role in the employer's decision to dismiss.(para 103).

The other approach, adopted by Davis AJA, is that an applicant who alleges an automatically unfair dismissal is required, in order to bring the dispute within the ambit of section 187, to discharge an evidentiary burden, by producing evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place.

Once this has been done, it then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstances envisaged in section 187 as constituting an automatically unfair dismissal. (Per Davis AJA at 2207 para 28)

I did not think that these approaches are inherently divergent, and I am satisfied that if both approaches are to be applied to the facts of this case the outcome would be that the applicant’s dismissal constituted an automatically unfair dismissal.

Therefore the question to be answered is, was, the applicant 's mental health problems and later the excercising of his rights in terms of the Act the dominant or principal reason that caused the respondent to discriminate against him, such discrimination causing an intolerable working environment such that the applicant was forced to terminate the employment contract?

If the applicant's mental health problems and the exercising of his rights under the Act were not the dominant or principal reasons that caused the respondent to discriminate against him, did they play a significant role in causing the respondent to discriminate against the applicant?

My assessment of the material evidence is that prior to the going on leave in December 2001, the applicant did not have any problems at work. This is common cause.

In December 2001 while he was on leave the applicant had a nervous breakdown.

He was away from work on sick leave from 28 December 2001 and returned to work 1 February 2002. The respondent was fully aware that the applicant suffered a nervous breakdown, and that he suffered from depression and anxiety, and that he would require maintenance treatment and medication.

The applicant's return to work from sick leave in February 2002 marked the turning point in his employment relationship with the respondent. From this point onwards, the respondent's attitude and conduct towards the applicant changed. The only thing that had changed between the applicant going on leave in December 2001 and returning to work in 2002 was that the applicant had, in the intervening period suffered a nervous breakdown, and the respondent became aware that the applicant had mental health problems.

All the evidence suggests that there was a deliberate strategy from this point onwards, on the respondent's behalf to exclude the applicant from the work that he had previously been involved in. Without explanation or justification this work was reallocated to other employees. The applicant was given menial tasks to do, he was ostracized by Freed, and other members of senior management, and Freed started to verbally abuse the applicant.

In my view, the conduct of the respondent towards the applicant as set out above, amounted to unfair discrimination against the applicant, on the grounds of his mental illness. The discriminatory conduct did not end there.

In May 2002, the applicant had a relapse due to the stressful working environment, and had to be booked off work. When the applicant returned to work, and explained his absence to the respondent (Pinho) he was told that this will not carry on. Later on the same day the applicant was suspended from employment and summonsed to appear before a disciplinary inquiry on charges of misconduct, which were not genuine. It appears to me that the reason that the applicant was charged with misconduct was to bring about his dismissal.

Much to the respondent' s dismay the disciplinary proceedings did not result in the dismissal of the applicant, even though the respondent had prepared for his dismissal by packing all his belongings into boxes.

The applicant returned to work and pursued an appeal against his final written warning.

The respondent intensified its discriminatory conduct towards the applicant. The discriminatory conduct took the form of subjecting the applicant to gross verbal abuse, often in front of his colleagues or third parties, prohibiting the applicant from gaining access to his work tools, without justification or explanation unilaterally cancelling projects in which the applicant was previously involved, cancelling the respondent's participation in exhibits and expositions which the applicant had arranged, excluding the applicant from meetings, barring the applicant's phone so that he could not make or receive telephone calls or receive telefaxes, thereby preventing him from communicating with clients.

In my view the conduct of the respondent towards the applicant ,as set out above, amounts to unfair discrimination against the applicant, on the grounds of his mental illness. This discrimination against the applicant had the effect of making his working environment intolerable, such that he was forced to leave the respondent's employ.

The respondent's discriminatory conduct towards the applicant was directly related to the fact that the applicant suffered mental health problems.

It is also the applicant's case that the respondent discriminated against him based on him attempting to exercise his rights under the Act, in respect of the final written warning and the unprocedural conduct of the disciplinary inquiry. In my view the evidence suggests that the applicant's use of the remedies provided to employees under the Act exacerbated the respondent's abusive conduct towards the applicant.

However I do not think that the respondent's discriminatory conduct towards the applicant was directly related to the applicant exercising of his rights under the Act.

The applicant claims that his dismissal is automatically unfair because the respondent has discriminated against him on an 'arbitrary ground', the ground being his mental health problems.

The Constitutional Court in Harksen v Lane NO 1997 (11) BCLR 1489 (CC) and [1997] ZACC 12; 1998 (1) SA 300 (CC) at 322, found that “there will be discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them in a comparably serious manner".

I have no doubt that discrimination based on a the fact that a person suffers from a mental health problem, has the potential to impair the fundamental dignity of that person as a human being, or to affect them in a comparably serious manner. Consequently, discrimination based on mental illness must be treated as a prohibited ground of discrimination.

In conclusion I find that the respondent discriminated against the applicant on the grounds of his mental illness, that the effect of the employer’s discrimination against the applicant caused an intolerable working environment for the applicant, resulting in his constructive dismissal.

Accordingly in terms of the Kroukam test, the dominant or principle reason that caused the applicant's dismissal was a reason prohibited by section 187 (1) (f), and if it was not the principle or dominant reason for the applicant's dismissal, then, the reason played a significant role in the applicants dismissal.

Relief

In terms of section 193(1) (c) the Labour Court has the discretion to award compensation to an employee whose dismissal has been found to be unfair. Where the Labour Court finds that a dismissal is automatically unfair the provisions of section 194 (3) become applicable. The applicant seeks 24 months compensation.

Section 194 (3) of the Act provides as follows:

"the compensation awarded to an employee whose dismissal is automatically unfair must be just and equitable in all the circumstances but not more than the equivalent of 24 months remuneration calculated at the employee's rate of remuneration on the date of dismissal ".

In Chemical Engineering Paper Printing Wood and Allied Workers Union and Another v Aluminium 2000 CC (2002) 203 ILJ 695 (LAC),Nicholson JA sets out in considerable detail the considerations that should inform the court's decision to award compensation and the amount of compensation.

Of significance is the reason for the dismissal, and Nicholson JA states at paragraph 48 the following:

" [48] The reasons listed in section 187(1(a)-(f) include dismissals motivated by unfair discrimination against an employee directly or indirectly, on an arbitrary ground, including race, gender, sex, colour, conscience, belief, political opinion, and others, a dismissal of an employee for any one of those reasons strikes at the essence of the values which form the foundations of our new democratic society as enunciated in the Constitution. It is a dismissal that undermines the fundamental values of the labour relations community in our country depends on to regulate its very existence. Accordingly such a dismissal deserves to be dealt with in a manner that gives due weight to the seriousness of the unfairness to which the employee so dismissed has been subjected."

[49] In considering whether or not to award compensation in such a case the court must consider that not to award any compensation at all where reinstatement is also not ordered may give rise to the perception that dismissal for such a reason is being condoned. This may encourage other employers to do the same. It must also take into account the fact that such a dismissal is viewed as the most egregious under the Act. Accordingly there must be a punitive element in the consideration of compensation."

Nicholson JA then deals with the considerations that should be taken into account once the court decides to award compensation.

Having regard to the considerations listed by Nicholson JA in paragraph 50 of the judgment, I am satisfied that, having considered all the evidence in this case, the reason for the applicant's dismissal, the appalling way in which the respondent treated the applicant, which did not cease at the time of his dismissal but including the respondent's vindictiveness towards the applicant after his dismissal with regards to his UIF card, his pension fund payment, and the return of his personal belongings which were only returned to him on the first day of the trial, this is a case where it is appropriate that the respondent be ordered to pay the maximum compensation of 24 months.

The respondent had every opportunity to lead evidence before the court on every aspect of the applicant's evidence, including the issue of compensation, and it elected not to lead such evidence.

I am also mindful of the fact, to the extent that it is relevant, that the applicant had a few odd jobs, including the contract with Deutz which paid him a very limited amount of remuneration, and that he was not able to obtain permanent employment.

Notwithstanding the above, in my view the merits of the applicant's case warrant payment of the maximum compensation of payable in terms of section 194 (3).

Overtime and Leave Claims

Finally there is the applicant's claim for payment for overtime worked during 2001 and 2002 and accrued leave .

The respondent conceded the applicant's leave claim in the amount of R 18,720.00.

The respondent disputed the applicant's overtime claim, but did not lead any evidence in rebuttal of the applicant's evidence relating to this claim.

The applicant's evidence is that during the months of March, May, June, July, August, September, November 2001 and March 2002 he worked 265.5 hours overtime for the respondent, and in terms of his contract of employment he is due R 77,658.75. The applicant completed a schedule which forms part of the bundle at pages 225-228, which sets out the dates times and places where the overtime was worked.

The applicant confirmed in his evidence that he worked these hours overtime, and that at the end of 2001 he had submitted a claim to Pinho asking him to pay the applicant the amount due for overtime at that stage.

I accept the applicant's evidence.

The applicant's overtime claim is governed by his contract of employment. It was common cause between the parties that the applicant's claim was not regulated by the overtime provisions contained in the Basic Conditions of Employment Act no 75 of 1997, because of the level of his earnings.

The relevant clauses of the applicant's contract provides as follows:

"5.6 Overtime is payable by 1.5 of normal wages

12 Hours of Work

12.1 The employee's ordinary hours of work shall be 9(nine ) hours per day and shall be from 07: 30 to17:00 Mondays to Fridays.

12.2 Overtime

Overtime is a condition of employment and you are expected to work the statutorily prescribed maximum overtime, currently three hours per day and 10 hours per week, provided that: --

• the employer notifies the employee during the preceding day that he/she is required to work overtime: and

• nothing in this agreement shall limit the employer's right and your obligation to work emergency overtime on short notice

• overtime payment, will be made in terms of the applicable conditions of employment at a rate of 1 1/2 times ordinary wage, on the normal pay day."

The respondent argued that I should not accept the overtime claim because in some instances the applicant claims to have worked up to 13 hours overtime on a day. Firstly argued the respondent this is highly improbable, and secondly it illegal and therefore not a valid claim.

The days on which the applicant worked up to 13 hours overtime were on Saturdays and Sundays, and it was the applicant's evidence that on these days he was involved in representing the respondent at exhibitions both locally, nationally or in Africa.

With regards to the argument that the applicant cannot claim overtime where the overtime worked is illegal, because the hours worked are in excess of the maximum amount permitted by the Basic Conditions of Employment Act, the respondent's counsel did not refer me to any case in particular, his submission was that there were a whole host of cases supporting this proposition.

In Food and Allied Workers Union v Ceres Fruit Juices (Pty) Ltd,(1996) 17 ILJ 1063 (C) the High Court had to consider inter alia whether overtime worked in contravention of section 8 (1) of the previous 1983 Basic Conditions of Employment Act was a nullity and therefore unenforceable.

The court noted that there was no statutory provision to this effect, and that the statute confined the sanction to a criminal one, aimed at sanctioning employers. It held that it would be ridiculous that employees should not be entitled to payment for work done in accordance with the unlawful system, and that the legislature did not intend to visit any agreement to work excessive overtime with a nullity.In my view, this reasoning must hold good under the new Basic Conditions of Employment Act.

The respondent's final challenge to the claim was based on a submission that the applicant was not entitled to work overtime because he was not instructed to work overtime. For this the respondent relies on the overtime provision read with the proviso which states that

Overtime is a condition of employment and you are expected to work the statutorily prescribed a maximum overtime, currently three hours per day and 10 hours per the week, provided that: --

• the employer notifies the employee during the preceding day that he/she is required to work overtime:

The respondent submits these contractual terms are clear: the employee can only claim overtime if he was required during the preceding day to work overtime.

My interpretation of this clause is that it is a clause for the benefit of an employee, the clause requires the employer to give the employee one day's notice that they will be required to work overtime, presumably so that the employee can make the necessary travel and domestic arrangements.

If the employer does not give the employee one day's notice, then in terms of the contractual provisions, the employer cannot require the employee to work the overtime .

The next proviso gives the employer the right to require employees to work overtime at shorter notice, in an emergency.

Therefore I reject the respondent's submission that the employee can only claim overtime if he was required during the preceding day to work overtime.

In any event, it was the applicant's evidence that he was required by his employer to work the overtime that he worked.

The respondent had every opportunity to rebut the applicant's evidence in this regard, but it elected not to do so.

Accordingly I find that the applicant has proved his overtime claim.

Finally, on the issue of costs there is no reason why the respondent should not pay the applicant's costs in this matter.

Accordingly I make the following order:

1. It is declared that the dismissal of the applicant was automatically unfair in terms of section 187 (1) (f) of the Labour Relations Act to 66 of 1995.

2. The respondent is ordered to pay the applicant 24 months remuneration calculated at the applicant's rate of remuneration on the date of dismissal.

3. The respondent is to pay the applicant the amount of R18 720.00 in leave pay

4. The respondent is to pay the applicant the amount of R77 658.75 for overtime pay

5. The respondent is to pay the applicant's costs of this action

Stein AJ

Date of judgment: 28 June 2008

Appearances:

For the Applicant: Adv. B. Patterson

Instructed by: Deneys Reitz atts.

For the Respondent: Adv. N.A. Cassim SC

Instructed by: Snyman Van der Heever Heyns atts.

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