Mndzebele v Jomar Investments (Pty) Ltd (161/2004) [2018] SZIC 05 (21 February 2018);

Search Summary: 

Unfair dismissal of employee from work.  Employer fails to prove misconduct on the part of employee.

Company Law. Financial director concludes agreement with employee which varied initial employment contract.   Variation agreement promotes employee from supervisor to manager and improves employee’s salary package.     

                       Employee works as manager for 5 (five) years, thereafter terminated.  Managing director challenges co-director’s authority to promote Applicant and also to improve Applicant’s salary package.

Held:            Company bound by agreement – Financial director exercised actual - alternatively ostensible- authority when he conducted variation agreement with employee.

INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE                                       CASE NO.161/2004

In the matter between:

 

ENOCK MNDZEBELE                                              Applicant

And

JOMAR INVESTMENTS (PTY) LTD                      Respondent

 

Neutral citation:     Enock Mndzebele vs Jomar Investments (Pty) Ltd     (161/2004) [2018] SZIC 05

 

Coram:                       MAZIBUKO J,

(Sitting with A.Nkambule & M.Mtetwa

Nominated Members of the Court)

 

          Last Heard:                12th February 2018

 

          Delivered                  21st February 2018

 

 

Summary:  Labour Law.  Unfair dismissal of employee from work.  Employer fails to prove misconduct on the part of employee.

Company Law. Financial director concludes agreement with employee which varied initial employment contract.   Variation agreement promotes employee from supervisor to manager and improves employee’s salary package.     

                       Employee works as manager for 5 (five) years, thereafter terminated.  Managing director challenges co-director’s authority to promote Applicant and also to improve Applicant’s salary package.

Held:            Company bound by agreement – Financial director exercised actual - alternatively ostensible- authority when he conducted variation agreement with employee.

                    

                                                                        JUDGEMENT

 

  1. The Respondent is Jomar Investments (Pty) Ltd a private limited liability company registered and incorporated in Swaziland, trading as Shamrock Butchery in Manzini town.  The application before Court is accompanied by a ‘Certificate of Unresolved Dispute’ which was filed by the Applicant.

 

  1. The Applicant is Mr Enock Mndzebele who is a former employee of the Respondent.  The Applicant was employed in December 1992 as a block man and sales assistant at the Respondent’s butchery.  When concluding the contract of employment, the Respondent was represented by the then Managing Director Mr George or Jorge Potgieter.  The Applicant was promoted to supervisor in 1996.

 

  1. In March 1998 the Applicant was promoted and transferred to work at Nhlangano town as manager.  The Respondent had a shop in that town.  The Applicant continued to work as manager at the Nhlangano shop until December 2002.
  2. It was a standing procedure at the Nhlangano shop for the Applicant to conduct a stock –take every month end.  There was however no stock-take that was done end of November 2002.  The Applicant had received a prior instruction from Mr Leon Potgieter that the regular stock-take should not be done at the end of November 2002.  Mr Potgieter had directed that the November stock-take would be done in his presence.  The Applicant complied.  Mr Potgieter was the General Manager and also director of the Respondent at that time.  For the sake of brevity, the Court shall refer to Mr Leon Potgieter simply as Mr Potgieter.

 

  1. About the 3rd December 2002 Mr Potgieter arrived at the shop as he had planned and the stock-count began.  The Applicant worked on the weighing scales while Mr Potgieter recorded the readings.  The Applicant stated that Mr Potgieter left the readings to himself and did not reveal them to the Applicant.  Thereafter Mr Potgieter took the readings and left the shop.  The following day Mr Potgieter informed the Applicant that there was a stock shortage to the value of E17, 150. 38 (Seventeen Thousand One Hundred and Fifty Emalangeni Thirty Eight Cents).  Applicant has denied the alleged shortage.  The Applicant added that he was denied a chance to verify the shortage as alleged by Mr Potgieter.  According to the Applicant, he demanded a re-count of stock, but same was denied by Mr Potgieter.

 

  1. On the 4th December 2002 Mr Potgieter arrived early at Nhlangano before the shop opened for business.  Mr Potgieter ordered that the Applicant should not open the shop that day.  He further ordered that the junior officers should not commence their daily duties.  Instead, Mr Potgieter ordered the Applicant to open the safe and take out all the money therein and bring it to him in the office.  According to the Applicant, in the process of carrying out that instruction he was further ordered, by Mr Potgieter, to collect all his (Applicant’s) personal belongings that were in the shop.  The Applicant left the money in Mr Potgieter’s possession and control as he went out of the office to collect his personal belongs.  As soon as he had finished collecting his personal belongings the Applicant reported to Mr Potgieter for further instruction.  At that time Mr Potgieter had gone ahead to count the money (that the Applicant had presented) and had finished doing so.  Mr Potgieter informed the Applicant that he had discovered a cash-shortage of E173.00 (One Hundred and Seventy Three Emalangeni) from the till money.  Mr Potgieter mentioned also that he had further discovered a shortage of E225.00 (Two Hundred and Twenty Five Emalangeni) from the cash- float.  According to Mr Potgieter the shop was supposed to have a cash float of E500.00 (Five Hundred Emalangeni).  Mr Potgieter concluded that the Applicant was responsible for the cash shortage both as manager and the person who kept the keys to the safe.

 

  1. The Applicant refuted Mr Potgieter’s allegation regarding the alleged cash – shortage.  The Applicant demanded a re-count of the cash but Mr Potgieter refused that proposal and stated that he had already counted the money.  The Applicant denied Mr Potgieter’s assertion and stated that he had counted the same till-cash the previous day together with the cashier (named Jabu Nkambule) and there was a shortage of E3-00 (Three Emalangeni) only.  The Applicant offered to make the till recordings from the previous day’s sales available to Mr Potgieter for verification.  Mr Potgieter declined that offer and informed the Applicant not to worry himself about that detail.
  2. Thereafter Mr Potgieter produced a letter dated 3rd December 2002 in terms of which he suspended the Applicant from work.  The letter is marked exhibit R1 and it reads thus:
    1.  

                       To:  Enock Mndzebele

                        Re: Stock Taking September, October & November: 2002.

                         With reference to the above, I wish to confirm my telephonic conversation with you during stock balancing of September and October 2002.  The short fall during September E4 757.22 and October E5 434.33 were not acceptable for the company.  And now in November 2002 you repeat a shortage of E17 150.38.  The former mentioned situation leave us with no alternative as to suspend you from your duties.  After the necessary investigation we will notify you of the date of your hearing or any further steps.

                         Thanking you for your co-operation.

 

                         _______________                                ________________

                         L. Potgieter                                          Enock Mndzebele

                         Director                                                 Employee

                        

  1. In terms of exhibit R1 the Applicant was suspended pending finalisation of investigation.  The Applicant did not hear from the Respondent for a lengthy period of time.  Consequently the Applicant sought legal assistance.  Through his attorneys (Mahlalela and Associates) the Applicant wrote the Respondent a letter dated 9th January 2003.  In that letter the Applicant challenged the basis and duration of the suspension.  The Applicant’s letter is marked exhibit R2.  The Respondent replied exhibit R2 by writing R3.  Exhibit R3 is dated 17th January 2003 and is written by the Respondent’s attorneys (PR Dunseith).  In exhibit R3 the Respondent conceded that the Applicant was suspended without pay on the 14th December 2002.  The Applicant was then invited to a disciplinary hearing which was scheduled for the 28th January 2003.

 

  1. The Applicant also received exhibit R4 dated 17th January 2003.  Exhibit R4 contained disciplinary charges.  The Applicant was charged with the following offences.

“1.    That you are guilty of dishonesty and/or negligence and/or poor management and work performance regarding stock shortages as follows:

         E4, 757.22 in September 2002

         E5, 434.33 in October 2002

         E17, 150. 38 in November 2002

2.      That you are guilty of dishonesty in respect of a shortage of till cash of E173.15 and a shortage of change cash of E225.00 discovered on 4th December 2002.

3.      That you are guilty of dishonesty and/or abuse of trust in that you sublet your company accommodation to subtenants for your own profit.

  • You are entitled to be represented at the disciplinary hearing by another employee only.
  • You must bring any witness who you may wish to call in your defence to the hearing.  If such witness is an employee of the company, you must make a timeous arrangement with me for his/her production.
  • The hearing shall be chaired by the Financial Director, Mr Boshoff.
  • If you do not attend the hearing, it will continue in your absence.
  • The charges against you are serious and may result in your dismissal.  You should accordingly treat this matter with the seriousness it deserves.

Yours faithfully

 

  •  
  •  

 

  1. The disciplinary hearing proceeded as scheduled.  The chairman was Mr Boschoff.  The initiator was Mr Potgieter.  Also in attendance was Mr Pierre Potgieter.  All 3 (three) gentlemen were directors of the Respondent.  When the Applicant arrived at the hearing he found all 3(three) directors in attendance in the room where the disciplinary hearing was scheduled to proceed.

 

  1. The Applicant pleaded ‘Not Guilty’ to all 3 (three) charges.  Nevertheless the Applicant was found guilty in all the 3 (three) charges and was summarily dismissed.  The minutes of the disciplinary hearing were handed in as exhibit R5.  Exhibit R5 reads as follows:

“Disciplinary Hearing

Enock Mndzebele 28th January 2003

  1. Mr. Boshoff chairman of the J. Potgieter Family Trust and Financial Director greet and welcome all who attended the meeting.

Mr Boshoff

Mr L. Potgieter

Mr P. Potgieter

Enock Mndzebele

Mr Boshoff explain to the meeting what it is all about and read the charges against Mr Mndzebele.He then ask Mr Mndzebele to plead on charge No.1 and ask him what he has to say.Mr Mndzebele said that he is not sure what to say about the shortages in September, October and November.Mr Mndzebele said he had a problem with deliveries in 2001.Mr Boshoff said 2001 is not one of the charges against him.He confirm that the truck was sealed and not opened when they offload the meat.He said on 29-11-2002 the delivery was short he then phoned.Mr Potgieter showed the meeting the credit note of 29-11-2002.Also on 17-10-2002 wrong price charge Mr Potgieter showed credit note.

  1. Mr Mndzebele said that Mr L. Potgieter and Mr P Potgieter took the money that is why it was short on both cash takings and change float.
  2. Mr Mndzebele confess that he gave the two people permission to stay in the house although he knew that he hasn’t got the power to do so.  Mr Boshoff said that the person confirmed that he pay rent but refuses to mentioned amounts.  After Mr Boshoff read the minutes of the meeting, he asked Mr Mndzebele if he agrees to the contents, he confirm.  

Mr Boshoff ask Mr Mndzebele to leave the meeting for a few moments.Mr Boshoff called him back and told Mr Mndzebele that his explanation is not acceptable and he is dismissed.

  •  
  •  

 

  1. The Applicant explained that he had been told by Mr Potgieter in December 2002 that there had been stock-losses incurred at the Nhlangano shop in September and October 2002.  The Applicant had been shown a worksheet with calculations and arithmetical figures that had been compiled by Mr Potgieter (annexures R14) which the latter had presented to the Applicant to support an allegation of stock-loss.  Based on the calculations in the said worksheet the Applicant accepted that there could be stock-loss incurred in September 2002 as alleged by Mr Potgieter.  The Applicant added that he accepted the figures as presented by Mr Potgieter in his worksheet and confirmed that the figures showed a stock- shortage.

 

  1. The Applicant has challenged the reason as well as the procedure that led to his dismissal.  According to the Applicant he was surprised to learn that he had been charged with stock loss for September and October 2002 since he had discussed with Mr Potgieter reasons for a possible stock loss for the said period.

 

  1. Firstly, the Applicant stated that he had been informed by Mr Potgieter that the Applicant had a surplus stock in August 2002.  When Mr Potgieter reported to the Applicant that there was a stock-shortage in September 2002, Mr Potgieter mentioned also that the surplus that occurred in August 2002 would offset the loss that was incurred in September 2002.  The Applicant’s evidence reads as follows under cross - examination:
    •  
    •  
    •  
    •  
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             (Underlining added)

(Record page 107)

 

  1. According to Mr Potgieter there were instances where stock-surplus was noted at the Nhlangano shop.  Mr Potgieter stated as follows under cross examination:

“I can’t remember which smaller shortages he was signing for my lord.  They would get these smaller shortages when they were taking stock on their own and you can get a small shortage if the stock is not taken in a proper way.  So what happens then is that the next month I go there personally because I can’t be there every month and when the stock is over then it covers that little shortage”

                  (Underlining added)

                   (Record page 308)

  1. Mr Potgieter did not deny that there was surplus stock in August 2002.  Mr Potgieter was asked that question and his answer was that he could not remember.  The evidence reads thus.
    •  
    •  

(Underlining added)

(Record page 337)

  1. Since Mr Potgieter could not recall whether or not there was surplus stock in August 2002, he was given a chance to consult his records.  Exhibit R14 could not assist Mr Potgieter in answering this pertinent question.  Exhibit R14 is a summary prepared by Mr Potgieter to assist him to prove his case in Court.  Exhibit R14 did not contain the stock summary that would have shown how the surplus or shortage occurred.  Mr Potgieter testified that the source documents were either destroyed or misplaced.
      •  
      •  
      •  
      •  
      •  
      •  

                          (Underlining added)

(Record pages 336 – 337)

  1.  
  2.  
  3.  
  4.  
  5.  

(Underlining added)

Record page 30)

  1.  

 

  1. According to exhibits R14, R15 and R16 Mr Potgieter stated the opening stock balances as follows:
  2.  

October 57, 768-00

November 70, 065- 21

In the absence of the stock summaries (or records), that which Mr Potgieter has misplaced, the Court as well as the Applicant, is not in a position to verify the opening and closing balances that were presented by Mr Potgieter as his exhibits.The alleged stock balances are not supported by evidence.In short Mr Potgieter is saying the Court must accept the figures that are stated in his exhibits as if they are correct because he (Mr Potgieter) says so.

 

  1. The Applicant challenged the allegation of stock shortage for October and November 2002.  Under cross examination the Applicant stated as follows:
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    •  
    •  
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(Underlining added)

(Record pages 91-92)

  1. The Respondent has not denied the Applicant’s assertion that there was surplus stock in August 2002.  The Respondent failed to take into account the value of the surplus -stock that occurred in August 2002 when it determined that there had been a stock – shortage in September 2002.  The Court accepts the evidence of the Applicant as compared to that of Mr Potgieter as being more probable that the August 2002 stock – surplus should offset the September 2002 stock-shortage.  In the absence of the monetary value of stock - surplus in August 2002 the Court is not in a position to determine whether there was a positive or negative balance after the set off.  Consequently the Court rejects the Respondent’s assertion that the Applicant is guilty of misconduct regarding stock shortage in September 2002.

 

  1. The Applicant also testified that the Nhlangano shop had been burgled 3 (three) times between September and November 2002.  The Applicant’s evidence in chief reads thus on this point.
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    •  
    •  
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(Underlining added)

(Record pages 32-33)

                 

  1. At an early stage in his evidence the Applicant mentioned that the shop he was managing suffered loss of stock as a result of the 3 (three) separate burglaries that took place there.  The Applicant added that he did not know the quantity and therefore the value of the stock that was lost as a result of the burglaries.  The Respondent therefore had sufficient time to investigate this item of defence (against the disciplinary charges) and to instruct its attorney accordingly.                                               
    1.  
    2.  
      •  
      •  
      •  

(Underlining added)

(Record page 246)

  1.  
  2.  

 

  1. Neither party could tell how much stock was lost in each one of the 3 (three) incidents of burglary aforementioned.  The Applicant testified that he was not aware of how much was stolen in the 3 (three) incidents of burglary aforementioned.  When Mr Potgieter calculated the amount of stock that was supposed to be held at the shop in each of the 3(three) months in question, he did not take into consideration the loss of stock as a result of the burglaries.

 

  1. The Applicant has also been found guilty of subletting a company house to a tenant or tenants for his own profit.  The Applicant has denied that he sublet the company house.  According to the Applicant he shared that house with a work-colleague called Mr Sipho Gamedze.  Mr Gamedze was in need of accommodation.  The Applicant allowed Mr Gamedze to stay in the house as a colleague and not as a tenant.
  2. The Respondent failed to bring a witness to support the charge of subletting the company house.  During cross examination Mr Potgieter claimed that the Respondent had witnesses who are still employed in Nhlangano whom he could call to support the charge, but none was called.  Mr Potgieter testified as follows:
    •  

(Underlining added)

(Record page 345)

For reasons unknown to the Court the Respondent failed to call the alleged witnesses.The Respondent has failed to prove this charge as well.

 

  1. The Applicant has challenged the minutes of the hearing (exhibit R5) as being incomplete and factually incorrect.
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    6.  

The Court is not persuaded that the Applicant admitted or confessed (at the hearing), that he did sub-let the company house.The Respondent has failed to prove that charge.There is no evidence therefore that supports the – ‘Guilty’ verdict and the dismissal of the Applicant.

  1.  
  2.  
  3.  
  4.  

           “44.The appropriate sanction for an employee who has been found guilty of misconduct or poor work performance must be distinctly addressed at a disciplinary enquiry and the employee must be given an opportunity to advance evidence and arguments in mitigation.  Failure to do so renders a dismissal procedurally unfair.”

(Underlining added)

(At page 19)

 

  1.  

 

  1.  

 29.1   It was also irregular for Mr Boshoff to be both chairman and witness in the same hearing.  The manner the hearing was conducted as well as the verdict was unfair.

29.2    The Court is not satisfied that the minutes as recorded by Mr Boschoff correctly reflect what was discussed at the hearing.  The minutes had been written by Mr Boschoff who had compromised his neutrality in the matter in a manner that was prejudicial to the Applicant.  The Court cannot therefore rely on the minutes and the verdict that is contained therein.

29.3  The Respondent has failed to produce evidence in Court to prove the charge – that the Applicant had sub-let the company house.

  1. There was a dispute of fact between the Applicant and Mr Potgieter regarding the events of the 4th December 2002.  Mr Potgieter denied that he counted the money (that the Applicant had presented) in the Applicant’s absence.  According to Mr Potgieter he counted and also recorded the money in the presence of both the Applicant and Mr Pierre Potgieter.  Mr Pierre Potgieter was Mr Potgieter’s co-director in the Respondent.  The evidence of the Applicant as well as that of Mr Potgieter is mutually destructive.

 

  1. Mr Pierre Potgieter did not testify in this trial.  The Court is not certain as to which of the 2 (two) versions is correct.  The onus to prove that the Applicant is guilty of the offence he is charged with – is on the Respondent – as employer.  It is the employer that is accusing the employee of misconduct.
    •  

CLASSEN CJ:DICTIONARY OF LEGAL WORDS AND PHRASES, Vol 3, Butterworths, 1976 SBN

409 01892 9 at page 212.

  1. The Respondent has failed to prove that the money was counted in the presence of the Applicant.  Furthermore, the Respondent has failed to prove that there was a shortage in the money that was presented to Mr Potgieter.  The Respondent has failed to discharge the onus that rested on her.  The evidence does not support the charge that the Applicant is guilty of dishonesty in respect of the shortage of cash.  The Respondent’s decision to dismiss the Applicant on this charge was also irregular.

 

  1. The Respondent has failed to prove that the Applicant is guilty of any of the offences with which he was charged.  Section 42 of the Employment Act no 5/1980 (as amended) provides that:
  1. In the presentation of any complaint under this Part the employee shall be required to prove that at the time his service were terminated that he was an employee to whom section 35 applied.
  2. The services of an employee shall not be considered as having been fairly terminated unless the employer proves –

a) that the reason for the termination was one permitted by section 36; and

b) that, taking into account all the circumstances of the case, it was reasonable to terminate the service of the employee.”

  1. The Applicant was employed by oral contract for an indefinite period.  This particular aspect of the Applicant’s contract of employment is not in dispute.  The Applicant was therefore an employee to whom Section 35 applied.  The Applicant’s employment contract was terminated contrary to Section 42 (2)(a) and (b) of the Employment Act.  The Respondent failed to prove misconduct on the part of the Applicant.  The dismissal was accordingly unreasonable and unfair both procedurally and substantively.
  2. According to the Applicant, he had initially been employed as a block man in 1992.  In 1998 the contract of employment was varied and improved by oral agreement with Mr Boschoff – the Financial Director.  The Applicant testified that he was enticed by the benefits that Mr Boschoff had offered if he (Applicant) would agree to go and work at the Nhlangano shop.  The Applicant accepted the offer and relocated to Nhlangano town.  The Applicant occupied the company house from the time he relocated to Nhlangano until the time of dismissal.
    1.  
    2.  

E2, 365-00 (Two Thousand Three Hundred and Sixty Five Emalangeni) per month.

 

  1. Mr Potgieter initially denied that the company house was allocated to the Applicant and his family only.  He further denied the agreement between Mr Boshoff and the Applicant which improved the Applicant’s benefits.  According to Mr Potgieter, the company house was allocated to all the Respondent’s employees who worked at the Nhlangano shop, both male and female.  At that time the Applicant was in charge of 3 (three) female employees plus 1(one) male.

 

  1. Mr Potgieter testified further that in March 1998 he addressed the employees at the Nhlangano shop and informed them that they will have to share the company house.  He stated that both Mr Boschoff and the Applicant were present at that meeting.  The Court has difficulty with that statement.
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(Record page 255)

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  2.  

 

  1. The Applicant stated that he was further enticed (to accept Mr Boschoff’s offer) by the right to enjoy unrestricted use of the company motor vehicle.  The Applicant testified that he was allowed by Mr Boschoff, the use of the company motor vehicle during and after working hours.  During weekends and sometimes during mid –week, the Applicant drove home in Manzini town in the said motor vehicle and was not reprimanded for so doing.  In several instances the Applicant gave a lift to his work – colleagues who also wanted to visit to their homes in Manzini town.  Mr Potgieter did not deny that allegation but stated that the Applicant was not entitled to use the company motor vehicle other than in the course of work.

 

  1. As aforementioned, Mr Boshoff did not testify at the trial.  Mr Potgieter was not present in the meeting wherein the variation agreement was concluded.  Mr Potgieter cannot deny the terms of the variation agreement since it was concluded orally and in his absence.  The Applicant’s evidence on the terms of the variation agreement remains uncontroverted.

 

  1. As an alternative, Mr Potgieter argued that Mr Boschoff had no authority to negotiate and conclude a variation of the Applicant’s contract of employment.  Consequently, Mr Potgieter and the Respondent do not recognize the Applicant’s claim to housing and motor vehicle benefits since these benefits are a product of an agreement which they deem irregular – in that Mr Boschoff’s exercise of authority was in conflict with the Respondent’s internal policies.  Mr Potgieter’s testimony reads as follows:
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(Underlining added)

(Record page 257)

  1. Mr Potgieter has failed to disclose before Court the extent of Mr Boschoff’s authority to bind the Respondent, especially when dealing with the Applicant’s contract of employment.  In the absence of such evidence it cannot be said that the variation of the Applicant’s employment contract was beyond Mr Boschoff’s authority as Financial Director.

 

  1. Even if the Respondent had provided proof that the variation of the contract of employment was beyond Mr Boschoff’s authority, (which is not the case), the Respondent would still be bound by that variation on the basis of company law principles including the Turquand rule.  Authorities provide as follows:
    1.  

HAHLO HR: SOUTH AFRICAN COMPANY LAW THROUGH THE CASES, 4th ed, Juta, 1984 ISBN

0 7021 14324 page 445.

  1.  

CILLIERS HS AND BENADE ML:COMPANY LAW, 4th ed, Butterworths, 1982 ISBN 0 409 01935 6 page 124.

  1. The Applicant is not a director in the Respondent but an employee.  The Applicant had no means of knowing the extent of the mandate of each of the directors in the Respondent.  As a reasonable man the Applicant was entitled to conclude that, Mr Boschoff as Financial Director, had the authority to represent the Respondent in the variation agreement.  The benefits that Mr Boschoff offered the Applicant- are of a financial nature as they improved the salary structure of the Applicant and are consistent with Mr Boschoff’s position as Financial Director.  The Applicant was an innocent third party in the variation agreement.  Mr Boschoff exercised his actual, alternatively - ostensible authority when he concluded the variation agreement.  The variation agreement is binding on the Respondent by virtue of Mr Boschoff’s exercise of authority either actual or ostensible.  The variation agreement is also binding on the Respondent based on the provision of the Turquand rule.

 

  1. The consequences of the variation agreement were obvious to the other directors of the Respondent as early as March 2002.  The Applicant relocated to Nhlangano town and took up a managerial position there.  Mr Potgieter became aware in March 2002 that the Applicant’s contract of employment had been varied.  Mr Potgieter did not question or challenge the terms of the variation agreement nor the authority of Mr Boschoff to conclude that agreement.  Mr Potgieter’s conduct meant that he was content with both Mr Boschoff’s exercise of authority to conclude the variation agreement and the terms thereof.  Therefore the Respondent as well as Mr Potgieter cannot at this late hour deny the authority of Mr Boschoff to conclude the variation agreement or the terms thereof.

 

  1. The promotion of the Applicant from supervisor to manager and the inclusion of the housing and motor vehicle benefits into the Applicant’s salary structure are terms in the variation agreement.  Mr Potgieter recognized the Applicant as manager at the Nhlangano shop – duly appointed as such by Mr Boschoff.  It is not open to Mr Potgieter to pick and choose which term in the variation agreement should he recognise and which - should he reject.  It is either the variation agreement was lawful as a complete unit or it was not. Having accepted the Applicant as lawfully appointed manager it is fair and logical for the Respondent to accept the other term in the agreement.  The Respondent is estopped from denying the authority of its director (Mr Boschoff) in concluding the variation agreement.  The Respondent is further estopped from challenging the terms of the said agreement.

 

  1. In the course of cross examination Mr Potgieter admitted that it was possible that Mr Boschoff and the Applicant may have concluded the variation agreement but he (Mr Potgieter) had no knowledge of that fact.  In that case. Mr Potgieter could not deny that fact.  The evidence reads thus:
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(Underlining added)

(Record page 265)

        

  1. The Court is satisfied that the company house was part of the Applicant’s benefits as an employee of the Respondent.  At the time of dismissal the housing benefit was calculated at E2, 365-00 (Two Thousand Three Hundred and Sixty Five Emalangeni) per month – which was equivalent to the monthly rent payable for the house. 

 

  1. The issue of the company motor vehicle stands on a different footing.  The Applicant was allowed partial access to the motor vehicle for his personal use.  The main purpose of acquiring the motor vehicle was to run the Respondent’s errands at the Nhlangano shop.  The Applicant had access to the motor vehicle for personal use only after the Respondent’s business had been attended to.  With the evidence that has been presented, the Court is unable to calculate in economic terms the extent of the Applicant’s right to private use of the motor vehicle.  A fortiori, the Court has not been told the economic value of the use of the motor vehicle for any given time period – whether for private or business use.
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  1. The Applicant has further claimed payment in lieu of leave outstanding for the years 2000 and 2001.  Mr Potgieter denied that the Applicant was owed leave for the period aforementioned.  Mr Potgieter stated that the Applicant was paid in the lieu of leave in the sum of E3, 260-00 (Three Thousand Two Hundred and Sixty Emalangeni).   Mr Potgieter produced a cheque payable in the said amount which he presented as proof of payment for the 42 (Forty Two) leave days claimed by the Applicant.  The cheque is dated 12th July 2001 and is marked exhibit R8.  The cheque is drawn by the Respondent in favour of the Applicant.  It appears (from the date stamp) that the cheque was presented for payment at Standard Bank on the 14th July 2001.

 

  1. The Applicant has not denied receipt of payment in the said cheque.  The Applicant has not denied Mr Potgieter’s evidence that the payment was in lieu of leave for the years 2000 and 2001.  The economic value of the 42 (Forty Two) leave days which were then outstanding has not been challenged either.  The Court is satisfied that the Applicant was paid in lieu of leave for the years 2000 and 2001 in terms of the cheque (exhibit R8).
  2. Mr Potgieter conceded that the Applicant was owed leave for the year 2002 – which was equivalent to 21 (Twenty one) days pay.  Mr Potgieter stated as follows in his examination in chief.
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(Underlining added)

(Record page 243)

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  2.  

(Underlining added)

(Record page 244)

  1. The evidence supports Mr Potgieter’s contention that the Applicant is owed leave pay for the year 2002 only.  The Applicant has indicated in his Amended Particulars of Claim that he worked 26 (twenty six) days per month on average.  This allegation was not denied.
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  1. The Applicant was dismissed without notice.  In terms of Section 33(2) of the Employment Act the Applicant is entitled of payment of 1 (one) month’s salary in lieu of notice in the sum of E4, 765-00 (Four Thousand Seven Hundred and Sixty Five Emalangeni).
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  2. Wherefore the Court grants judgment in favour of the Applicant with payment as follows:

54.1      Compensation for unfair dismissal         E38, 120-00

54.2      Notice pay                                                  E4, 765-00

54.3      Additional Notice                                        E5, 717-88

54.4      Severance allowance                                   E14, 294-70

54.5      Leave pay                                                    E3, 335-43

54.6      Total                                                            E66, 233-01

 

Members agreed

 

__________________________

D.MAZIBUKO

INDUSTRIAL COURT - JUDGE

 

 

Applicant’s Attorney              Mr.V Z. Dlamini

                                                Of V.Z. Dlamini Attorneys

 

Respondent’s Attorney           Mr A. Lukhele

                                                Of P.R. Dunseith Attorneys