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Josob v Namibia Breweries (Pty) Ltd (Case No.: LCA 18/2008)  NALC 2 (2 October 2008)
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CASE NO.: LCA 18/2008
IN THE LABOUR COURT OF NAMIBIA
In the matter between:
JACOBUS JOSOB Appellant
NAMIBIA BREWERIES (PTY) LTD Respondent
CORAM: SILUNGWE, AJ
Heard on: 2008.09.19
 The appellant appeals against a judgment given on November 12, 2007, in the District Labour Court for the district of Windhoek.
 In the Court a quo, the appellant (then complainant) claimed loss of income and any consequential losses for unfair dismissal and breach of contract of employment.
 It its reply, the respondent alleged that the appellant had repudiated his contract of employment by refusing to accept a position in which he had been placed (in terms of the contract) and the respondent accepted such repudiation. The parties will hereafter continue to be referred to as appellant and respondent, respectively.
 After hearing the matter, the court made the following order:
(a) the termination of the complainant’s services by the respondent was unlawful and not in compliance with section 45 or 47 of the Labour Act and is accordingly set aside;
(b) the complainant is not to be reinstated, but should be compensated for loss of income and benefits for a period of twelve months. An amount of N$12 000-00 which he earned as an employee of the Worker’s Advice Centre should be deducted from the aforesaid compensation. This payment should be made on or before 30 November 2007;
(c) interest at a rate of 20% per annum shall be added to any outstanding amount not paid before 30 November 2007.
 The appellant’s appeal, which rests on two grounds, is against the following aspects of the judgment:
(1) The award for loss of income and loss suffered as a consequence of the dismissal.
(2) The order that reinstatement would not be ordered.
These are the two grounds of appeal:
(1) Respondent breached a material express and legally enforceable term of the contract namely to place the appellant after resignation as shopsteward.
(2) Respondent acted in extreme bad faith with regard to ground (1) supra.
 The respondent noted a cross-appeal against the entire judgment of the District Labour Court.
 On May 22, 2008, the Registrar of the Court addressed a letter to the appellant and, inter alia, notified him that his appeal had been set down for hearing on Friday, 19th September, 2008, “at 09h00”. The letter was copied to Engling, Stritter & Partners, the respondent’s legal practitioners of record and the Clerk of the Court of the Windhoek District Labour Court.
 On September 11, 2008, the appellant filed a notice of application in these terms:
“1. Removing respondent’s counter appeal for the roll.
2. Barring respondent to partake in the hearing of the appeal.
3. Costs of this application.
4. Further and/or alternative relief.
TAKE NOTICE FURTHER THAT THE GROUNDS OF THE APPLICATION ARE AS FOLLOWS:
1. The counter-appeal has no revenue stamp.
2. The case number is not 477/06, but DLC 609/05”
 At the appointed time on the hearing day, the appellant, who was to appear in person, was reportedly not present in Court but Mr Dicks, learned counsel for the respondent, was reportedly present. At 09h10, the Court convened as it could no longer wait for the appellant. Mr Dicks then submitted (in the appellant’s absence) that the appeal be dismissed and that the cross-appeal be upheld. While the Court was in the process of preparing a ruling, the appellant (accompanied by, inter alia, Mr Hewat Beukes of the Workers’ Advice Centre who had represented him in the District Labour Court) pitched up, panting heavily; he verbally apologized for his late arrival as he had (allegedly) been at the Registry and in the Motion Court. After telling him that the reason given was unsatisfactory since the appeal had not been placed on the Motion Court Roll, the Court allowed him to argue his appeal.
 In pursuit of his application (in limine), the appellant contended that the respondent’s cross-appeal should be removed from the roll and further that the respondent should be barred from challenging the appeal on the basis of the two grounds aforesaid.
 Mr Dicks countered the appellant’s contention by firstly drawing attention to page 557 of the original record of appeal (record) which bears the appropriate N$50 Revenue stamp; and, secondly, to page 542 of the record (the first page of the judgment of the District Labour Court) which shows the typed Case No. as 477/06 and which had inadvertently been used by the respondent. He added that nothing should turn on that inadvertence.
 The first point raised in limine was unwarranted as the requisite revenue stamp had been affixed to the original record which was (and still is) in the Court’s possession. That point was accordingly dismissed. With regard to the second point in limine, the submission given by Mr Dicks, on behalf of the respondent, was accepted by the Court with the result that that point too was dismissed. Immediately after the Court’s ruling, the appellant asked for a few minutes’ (three to four) break for consultation (to which there was no objection). He was granted a break for five minutes.
 Upon resumption of the hearing (approximately ten minutes later), the appellant told the Court that, under protest, he was no longer going to take any further part in (prosecuting) the appeal because of the racist remarks made against him by Mr Dicks. In amplification, he stated that Mr Dicks had filed racist documents bearing the expression “master and servant” and which he perceived to be a racist remark. I pause here to pint out that there is, at least, a reference to the words “master and servant” in paragraph 74 of the respondent’s heads of argument which is a quotation from Rycroft and Jordaan’s book: “A Guide to South African Labour Court” (1990) at 47-48. He went on the say that, during the proceedings in the District Labour Court, Mr Dicks had made a similar remark by referring to him as a parasite (apparently for having received his monthly salary during the period of four months and ten days that he rendered no services to the respondent). He found (all this) unacceptable in the new Namibia. He then asked for the Court’s ruling on his stance. He was, however, told that no such ruling was necessary as the decision not to further prosecute the appeal was entirely his. It was explained to him that his interpretation of the words complained of as meaning expressions of racism was misconceived and that, for instance, even in such countries as England and the United States of America, the expression of “master and servant”, is used in labour law or labour matters without any connotation of racism.
 Mr Dicks told the Court, in the appellant’s presence, that his understanding was that the appeal was not being proceeded with any further. He nevertheless made it clear that the respondent was going ahead with the cross-appeal.
 At this point, and notwithstanding the Court’s explanation, the appellant stuck to his guns and left the Courtroom. For the purpose of this judgment, however, the parties will continue to be referred to as appellant and respondent, respectively.
 Before considering the respondent’s cross-appeal, it is expedient to give a history of the matter under consideration.
 It is common cause that when the events that gave rise to this case occurred towards the end of 2005, the appellant had been employed by the respondent for approximately twelve years. He held the position of Storeman Grade 5 at the time of his appointment as a Shop Steward in 1999, consequent upon an agreement entered into between the respondent and the Namibia Food and Allied Workers Union (NAFAU) (which was apparently the appellant’s union). However, on July 20, 2005, the appellant, due to personal reasons, resigned his position as full-time Shop Steward with immediate effect and requested the respondent to accept the resignation. It is not in dispute that the applicable clause of the agreement aforesaid is 6.3 which reads:
“6.3 Should a Full-Time Shop Steward relinquish his office … the Company will endeavour to place him in a job that he held prior to his appointment but in the event of that not being possible the Company will place him in a job at the same grade as held prior to his or her appointment as a Full-Time Shop Steward.”
 Thereafter, the respondent endeavoured to place the appellant in an alternative position by encouraging him to apply for vacancies that had occurred as a result of a voluntary retrenchment exercise.
 The appellant’s response was that it was the respondent’s responsibility to place him and that he should not be “burdened” with having to apply for vacant positions.
 At a later stage, the respondent addressed a letter to the appellant in which it said, inter alia:
“The company hereby therefore offers you the following positions:
Operator Point of Sale:
Windhoek Secondary Distribution: Grade 5
Operator Point of Sale:
Hansa Secondary Distribution: Grade 5
Hansa Secondary Distribution: Grade 5
Kindly indicate your acceptance of one of the offers above within 2 working days of this memo so that the process of placement can commence. Should you have any questions, please do not hesitate to contact Mr Lawrence as your current line manager.”
 The appellant indicated interest in one of the two vacant positions in Swakopmund but only on a temporary basis (and without specifying which one of the two positions) until any of the two positions held by Messrs Ben Coetzee and Stoffel van Wyk became available in December 2005, and on condition that the respondent pays for his accommodation and transport costs. However, the respondent found the appellant’s intimation to accept one of the vacant positions in Swakopmund on a temporary basis unacceptable as the available vacancies were for permanent positions. With regard to the appellant’s demand for the respondent to bear the cost of accommodation and transport, should he relocate to Swakopmund, he was informed that any such relocation could only be done in conformity with the company’s policy but not otherwise. He was further informed that the positions of Messrs Coetzee and van Wyk were unavailable as they were to become redundant.
 Pursuant to the appellant’s demand that he be placed in a position in terms of the agreement, the respondent addressed a memorandum to him on November 8, 2005, which reads in part:
“The company therefore places you in the position of Operator POS in Windhoek effective 9 November 2005. Your cost center will be cc-431. All other employment conditions will remain unchanged. Please report to Riaan Jantjies at 08h00 on said effective date. A development plan will be put in place for you to cover training aspects for this position.
I trust that you will find the placement in line with the agreement and wish you well in this new position. Should you have any queries, please do not hesitate to call on Mr Jantjies as your line manager.”
 On November 9, the appellant responded that his placement was in bad faith, that it was proof of the respondent’s intransigence and a disregard of his rights as an equal negotiator. Besides, the appellant was of the view that the matter be referred to arbitration and threatened to bring an action for damages should the respondent be averse to the arbitration route.
 In its written response of November 11, the respondent stated that arbitration would not be a suitable process for the reason that “internal processes” had not been exhausted and added, inter alia, that it had complied with the terms of the agreement. (Emphasis provided).
 On November 16, the appellant replied indicating, among other things, that the placement was in bad faith and reiterated a referral of the matter to arbitration. He was, however, willing to discuss the matter with the respondent.
 On November 22, the respondent, in response to the appellant’s willingness to discuss the matter, indicated that the meeting was to take place the next day. It is common cause that the meeting could not materialize until November 25. At that meeting, the parties were unable to resolve their dispute. At the end of the meeting, the respondent made it quite clear to the appellant that, in the event of his failure to report for duty on Monday, November 28 at 08h00, that would be construed as a repudiation of his agreement of employment. The appellant acknowledged the respondent’s threat and, although he did not “decline” the position offered, he was going to pursue the arbitration route to bring the matter “to a logical conclusion.”
 In a letter addressed to the appellant on November 28, the respondent concluded:
“On Monday morning 28th November 2005 you informed Mr Lawrence that you will not report as requested because you had to go to the Clerk of the Court. Despite your return during the morning, you still had not reported to Mr R Jantjies by midday as requested and you are hereby informed that the Company accepts your repudiation of the contract with effect form 28 November 2005.”
This therefore confirms that your last working day is 28 November 2005. You are duly requested to return all company property with immediate effect as per the attached exit checklist to Mr Jantjies.”
 It is clear from the foregoing synopsis that it was critical for the trial court to determine whether the appellant had established dismissal and, if so, whether such dismissal was unfair; or whether, in reality, the appellant had, by words or conduct, repudiated his contract of employment, and thus ended the working relationship.
 This brings me to the respondent’s cross-appeal. In its grounds of appeal, the respondent strives to show that dismissal was not proved by the appellant, and alleges that the District Labour Court Chairperson erred in law and/or on the facts in, inter alia, “Directing the respondent to present its case first and to prove that dismissal (which the respondent denied occurred) was fair.”
 Section 46(3) of the Labour Act, Act 6 of 1992, stipulates that -
“When in any proceedings in terms of this section it is proved that an employee was dismissed from his or her employment or that any disciplinary action has been taken against such employee, it shall be presumed that, unless the contrary is proved by the employer concerned, such employee has been dismissed unfairly or that such disciplinary action has been taken unfairly against such employee.”
On a proper construction of the said subsection, it is self-evident that, where an “unfair dismissal is alleged against an employer, but such dismissal is in dispute, as in casu, the onus of proof lies upon the employee to show that the (alleged) dismissal occurred. Once dismissal is proved by the employee (or is either admitted or not disputed by the employer), the employer “shall be“ deemed to have dismissed the employee unfairly, unless the contrary is proved.
 It is not in dispute that, right from the outset of this matter, the appellant’s alleged dismissal was unquestionably a bone of contention between the parties. Whereas the appellant alleged that he had been dismissed and that the dismissal was unfair, the respondent countered that the appellant had repudiated the contract of employment.
 Rather strangely, the District Labour Court Chairperson fell into error by directing the respondent to present its case first. It is probable that the error stemmed from a misinterpretation of subsection (3) of section 46 of the Act. The end result of the error was that the respondent was, according to Mr Dicks’ submission, placed in an “invidious and unenviable position of having to prove” that the appellant’s dismissal (which had been disputed) was fair.
 It is Mr Dicks’ further submission that, when the respondent led evidence, at no stage during cross-examination of the (respondent’s) witnesses by the appellant’s representative (Mr Beukes) was it put to them that the appellant had “accepted his placement in the position of Operator POS” and/or that he had “reported to Mr Jantjies for duty on 28 November 2005”). Mr Dicks argued that, on the appellant’s own version, “he did not report for duty on 28 November 2005”; and that he refused to accept his placement by the respondent, claiming that what had been offered was “a morbid position incompatible” with his “intellectual ability”. It was only during the presentation of his case, Mr Dicks contends, that the appellant “surprisingly and for the first time” indicated (in cross-examination) that he had accepted the position of Operator POS; that he had reported for duty to Mr Jantjies; and that he had thus not repudiated the contract of service with the respondent. It is not in dispute that, when the appellant closed its case, Mr Dicks filed an application (on behalf of the respondent), supported by an affidavit, in which leave was sought to call Mr Riaan Jantjies (who had not previously testified in the matter) to give rebuttal evidence. Following the hearing of the application, which was opposed, the Court a quo dismissed it on the basis that what was sought to be adduced was not new evidence.
 Had the trial court directed the appellant to present its case first, as it ought to have done, and the appellant had adduced the evidence that is now on record, it seems to me that the respondent would most likely (and naturally) have adduced rebuttal evidence (through its witnesses, including Mr Jantjies, in particular) to show that the appellant had failed to prove dismissal and that he had, on the contrary, repudiated the contract of employment.
 It is trite law that repudiation of a contract can be made (either expressly or) by words and conduct provided that such words evince (or such conduct envices) a deliberate and an unequivocal intention no longer to be bound by the contract. The test is whether the party repudiating has acted in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfill his part of the contract. See: Nghindama & Others v Grahamstown Municipality (1194) 11 BLLR 68 (IC) at 74A-E; Ponisammy & Another v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A) at 386H-387C.
 In conclusion, the trial court’s failure to direct the appellant to lead evidence first for the purpose of establishing dismissal (which, in turn, led to a situation whereby the court a quo refused the respondent’s application to adduce rebuttal evidence) was fatal. In the premises, it is unnecessary to deal with any other ground of the respondent’s cross-appeal.
 The following order is made:
1. the appellant’s appeal is dismissed;
2. the District Labour Court’s order is set aside in its entirety;
3. to the extent of paragraphs (1) and (2) above, the respondent’s cross-appeal is allowed;
4. the case is remitted to the court a quo for rehearing before another presiding chairperson.
APPELLANT IN PERSON:
COUNSEL ON BEHALF OF THE RESPONDENT:
Instructed by: Engling, Stritter & Partners