The applicant who had been employed as the national sales manager by the respondent, resigned on 27 November 2012, giving four months’ notice. At the time of his resignation he intended to start his own business as he was dissatisfied with the manner in which he was being treated by the respondent. The applicant eventually decided not to leave the respondent, and he claimed that he had been unfairly dismissed on 2 April 2013 after his resignation was withdrawn by him. The respondent contended that the applicant had resigned voluntarily. The onus was therefore on the applicant to prove that he had been dismissed.
On 2 April 2013, as tape recorded, the applicant came into the respondent’s office and they discussed whether he would sign the contract of employment and shareholding agreement or not:
“So what must I do? Because there are other options for me so I’m going to take them. That’s why I never closed my other options at all cos I knew you’d basically come up with this and I knew I couldn’t trust you... as far as we’re both concerned I’m not employed by Rawlplug anymore... I’m out of here... if we can’t sort out my employment contract today cos then I’m not going to sit in this office and do another day’s work for you. You need to ensure you pay me out whatever... and I’ll get Lilian to sign my provident fund refund, OK?... nice doing business with you... your stuff I’ll drop it off.”
The commissioner noted that the applicant had categorically stated that he would no longer work for the respondent unless the agreements were finalised. It is therefore clear that the applicant knew that no agreement had been reached as at end March.
According to the commissioner, the cardinal difference, which the applicant seemed unable to comprehend, was that the parties were not, this time around, negotiating a change to an existing contract of employment which had not been terminated, but they were in fact negotiating new contracts in the light of his resignation – a unilateral termination of the contract on notice by the applicant himself. As he stated, his staying on was subject to and conditional upon agreement being reached. It never was. The applicant was therefore, in the circumstances, never dismissed.