MCL Ukhozi Recruitment Services CC v Khan and Others (D269/08) [2009] ZALC 245 (9 February 2009)

D269/08/SV/CD1 3 JUDGMENT

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

CASE NO: D269/08

In the matter between:

MCL UKHOZI RECRUITMENT SERVICES CC APPLICANT

And

FAIZ AHMED KHAN FIRST RESPONDENT

COMMISSION FOR CONCLIATION,

MEDIATION AND ARBITRATION SECOND RESPONDENT

COMMISSIONER LESTER SULLIVAN THIRD RESPONDENT

_____________________________________________________________

JUDGMENT

PILLAY D, J

This is an application to review and set aside the award of the third respondent Commissioner. The issue before the Commissioner was to determine whether the applicant employer dismissed the first respondent employee or whether the employee resigned. The

Commissioner found that the employer had dismissed the employee.

A material consideration was documentary evidence. There was an email before the Commissioner in terms of which the employee had

written to a third party about an area sales manager job. In that email he also stated that he "will be without a job from the end of December". This email was sent on 2 November 2007. The altercation between the employee and Mr Lembede for the employer occurred on 14 December 2007, before the employee went on leave. The employer alleged that they were in a discussion in which the employer was attempting to get a report from the employee about his work, when the employee became agitated and angry and said that he could not work for an employer who did not trust him. The employee walked out of the meeting. Thereafter Mr Lembede found him deleting data off his laptop which belonged to the employer. Subsequently, the employer found the email in which the employee said that he would be without a job from December.

He also found another email from the employee to a third party in which he stated that he, the employee, was the owner of Rock Hustlers Fishing Tackle. This email was sent on 6 August 2007. In this email the employee was ordering goods for his business. The employee admitted that these emails belonged to him and that he was aware of them.

The Commissioner, however, paid no attention whatsoever to these emails. They manifest a clear intention not to be employed after

December. That was material corroboration of the employer’s version that the employee did not intend to remain employed with the employer. In the circumstances the Commissioner ignored material evidence. As such, he misdirected himself.

The application for review is GRANTED.

______________ Pillay D, J Date heard and delivered: 9 February 2009 Edited: 2 April 2009 Appearances: For the Applicant: P.O. Jafta – Jafta Inc For the Respondent: No Appearance (Unopposed)

______________

Pillay D, J

Date heard and delivered: 9 February 2009

Edited: 2 April 2009

Appearances:

For the Applicant: P.O. Jafta – Jafta Inc

For the Respondent: No Appearance (Unopposed)