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[2013] ZAKZDHC 47
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Sewsunker v Durban University of Technology (3897/12) [2013] ZAKZDHC 47 (16 September 2013)
IN THE KWA-ZULU NATAL
HIGH COURT, DURBAN
(
REPUBLIC OF SOUTH
AFRICA)
CASE NO: 3897/12
In the matter between:
PRITHYLALL SEWSUNKER
.............................................................................
Applicant
and
DURBAN UNIVERSITY OF
TECHNOLOGY
.................................................
Respondent
JUDGMENT
VAN ZÿL, J.
:-
This is an application
to review and set aside the decision of the respondent to deny the
applicant “post retirement medical
aid benefits” in
terms of the provisions of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA). It is common
cause that the applicant had been
in the employ of the respondent and that his services were
terminated after a disciplinary
hearing found him guilty of
misconduct. As a result the dispute was referred to mediation and
ultimately for arbitration by the
Commission for Conciliation,
Mediation and Arbitration (the CCMA) on 6 December 2010.
Following negotiations
at this forum, a settlement agreement was concluded which was
reduced to writing and signed by or on behalf
of the parties. It is
the terms of this agreement which underlies the present dispute.
The relevant portions of
the agreement, thus concluded, read as follows:-
“
5.
WITHDRAWAL
OF DISPUTE
The applicant voluntarily withdraws
the referral and abandons the dispute against the respondent in
settlement of his/her case at
the CCMA with the full knowledge that
he/she will not be able to proceed with this dispute at a later
stage. Each side will pay
its own legal costs.
6.
OTHER
(a) The respondent agrees that the
applicant is entitled to early retirement in terms of the rules of
the Pension, and this right
is not effected by the outcome of the
disciplinary hearing.
(b) The applicant reserves, his right
to make representation to the Chair of Council in respect of this
right to post-retirement
Medical Aid.”
During his term of
employment with the respondent the applicant contributed as a member
thereof to a pension fund, namely the
National Tertiary Retirement
Fund (the fund). The normal retirement age in terms of the scheme
varies between 60 and 65 years,
depending upon the terms of the
relevant service agreements as at the commencement date.
Rule 7.1 of the rules of
the fund provides that, should a member leave service whilst not
entitled to benefits under any other
rule, then such member becomes
entitled, in the form of a lump sum cash payment, to an amount equal
to his or her member’s
share, provided that the fund is not
then in deficit. However, should a member at the time have attained
the age of 55 years
or more, then rule 7.1(b) provides that such
member “shall be granted his or her Member’s Share”,
as defined
in rule 2.2(1).
Rule 4.2 provides that
should a member retire from service after having attained the age of
55 years (as was the case with the
present applicant), but before
normal retirement age, then such member “… shall
receive a pension vesting on the
following day and secured by his or
her member’s share…”. A pension is defined as an
annual benefit amount
payable for the lifetime of the beneficiary.
The word “retire”,
as used in rule 4 in the context of normal retirement, early age
retirement and early ill-health
retirement, is not defined in the
rules. In relation to rule 7, dealing with cash withdrawal of
benefits, the expression “leave
service” is used, while
in rule 3.2 in relation to withdrawal from membership of the fund
there is a provision that membership
will cease upon “termination”
of his or her service. The only apparent reference to “dismissal”
from
service appears in rule 7.1(c) in the context of the
abolishment of the member’s post, or a general reduction of
staff
and the member would then become entitled to payment of his or
her “member’s share”. In the context of the rules
of the pension fund there is therefore no particular significance to
the use of the different expressions in relation to the
termination
of the service of a member of the fund.
In the light of the
above it is apparent that, in the case of a member of the pension
fund who is over the age of 55 years (as
was the case with the
applicant) at the time he or she ceased to be employed, the basis
for such termination is of no consequence.
Differently put, the
actual reason for the termination of the employment relationship or
the employee leaving the service of
the employer is irrelevant to
the benefits accruing to such a member from the fund, once such
member leaves service or ceases
to be employed. The position is no
different where the termination of the employment relationship
results from dismissal for
misconduct.
By contrast, during 1990
the respondent adopted a policy in terms of which it subsidised the
medical aid contributions of its
staff members who retired. Here the
word “retire” is clearly used and understood as retiring
or withdrawing from
service at the conclusion of their working years
in terms of their contracts of service. It is apparent from the
affidavits submitted
on behalf of the respondent that this policy
has consistently applied only to retirees and not to those employees
whose services
are terminated due to dismissal.
Indeed, in this regard
the supporting affidavit of Ms P A Newman, the respondent’s
Manager of Benefits and Compensation
established that over the past
35 years there has not been a single instance of a dismissed
employee being afforded “post-retirement
medical aid benefits”
and that these benefits are reserved only for those former employees
who retired in the ordinary
course consistent with their contracts
of employment. The contents of her affidavit were not disputed by
the applicant in reply,
nor did he dispute the statements to the
same effect in the main answering affidavit deposed to by Professor
N. Gawe on behalf
of the respondent.
For purposes of the
present proceedings the applicant has accepted that dismissal
disqualified a former employee from the benefits
of medical aid fund
subsidisation. The applicant, however, adopted the view that the
effect of the settlement agreement concluded
at the CCMA arbitration
hearing on 6 December 2010 was to convert the dismissal to early
voluntary retirement. As a result he
then became entitled also to
the benefit of the post retirement medical aid subsidy, as reserved
by the respondent for its ordinary
retirees from the service.
In response to
correspondence from the applicant’s then attorneys demanding
recognition of the applicant’s entitlement
to the medical aid
premium subsidy Dr Reddy, in his capacity as the Chairperson of the
respondent’s council and by letter
dated 4 April 2011, set out
the respondent’s understanding of the effect of the settlement
agreement, as follows:-
“
Dear Sir
RE: MR P. SEWSUNKER/MAINTENANCE
DEPARTMENT – STEVE BILO CAMPUS
Your letter dated 28 March 2011
refers. I have reviewed the matter and concluded that your
interpretation of the settlement agreement
at the CCMA is certainly
not the same held by the University.
The University is clear on the matter
that Mr Sewsunker’s entitlement to early retirement in terms of
the rules of the Pension
Fund is not in any way related to the
outcome of his disciplinary hearing. The University has not in the
settlement agreement conceded
to the dismissal of Mr Sewsunker
‘falling away’ as you put it, neither did the University
‘convert’ his
dismissal to early retirement. All the
University officials did was to acknowledge that, as Mr Sewsunker was
over 55 years old
the pension fund rules allowed early retirement. Mr
Sewsunker however in terms of the disciplinary hearing and appeals
outcome
remains dismissed. Hence the ineligibility to receive post
retirement medical aid benefits in terms of the University policy.
Your’s sincerely
Dr J. Reddy
Chairperson of Council”
It therefore becomes
necessary to determine the meaning and effect to be attributed to
the settlement agreement of the parties,
as encapsulated in the
settlement document of which the relevant portions are set out
earlier in this judgment. The different
approaches to and
considerations applicable when interpreting written instruments have
a long and varied history. These were
comprehensively reviewed by
Wallis JA in Natal Joint Municipal Pension Fund vs Endumeni
Municipality
2012 (4) SA 593
(SCA) at para 18
et seq
., to
which counsel for the respondent drew attention in the course of his
argument.
I do not consider that
any useful purpose would be served in trying to restate the eloquent
and wide ranging exposition of Wallis
JA. Suffice it to say that
multiple considerations apply when seeking the correct
interpretation of a written instrument under
consideration. But one
has to start somewhere and the language used in the instrument under
consideration presents a useful point
of departure.
Counsel for the
applicant sought to emphasise the manuscript portions appearing in
paragraphs 6(a) and (b) of the agreement and
submitted on that basis
that –
“
It is
abundantly clear, unequivocal and capable of no other interpretation,
that the terms of the agreement provide that the Applicant
exited the
Respondent’s employ by way of early retirement.
”
(as per paragraph 12(a)
of counsel’s written heads of argument).
In developing his
argument counsel further submitted that the concept of “
dismissal”
does not appear anywhere in the agreement. Consequently, so the
argument ran, the parties had agreed, by way of the settlement,
that
the earlier dismissal of the applicant would be consensually
substituted or replaced by the termination of the applicant’s
services by means of his early retirement. That being so, the
applicant upon retirement became entitled, in terms of the
respondent’s
long standing policy, to post-retirement medical
aid benefits as a matter of course.
Counsel further
submitted that the respondent impermissibly sought to imply into the
settlement agreement that it “
connotes that the Applicant
was in fact dismissed
”. For such a term to be implied it
was necessary, so counsel submitted, for this to arise from the
language of the contract
itself and the circumstances under which it
was entered into, so that the court be driven to conclude that the
parties intended
that such a stipulation must be implied. In this
regard reliance was placed upon the passage referred to by Diemont
AJ (as he
then was) in Dennis vs Garment Workers’ Union, Cape
Peninsula
1955 (1) SA 232
(CPD) at 238 G-H. However, the learned
Acting Judge at page 238D also observed that “
It is clear
that if a term is to be implied it must be a necessary one –
not merely a reasonable or equitable one.
”
Counsel for the
respondent took a different approach. He submitted that the
settlement agreement should be read and considered
against the
background of the events and considerations leading up to the
meeting at the CCMA on 6 December 2010 when the agreement
was
concluded. In developing his argument counsel drew attention to the
fact that the pension fund of which the applicant was
a contributing
member had as its main object the provision of financial benefits to
its members in terms of its rules, but that
these rules did not deal
with medical aid schemes or any medical aid benefits which might
accrue to members leaving or retiring
from the service of their
employers.
Upon the approach of the
respondent the settlement agreement intended to record the position
as amplified in the rules of the
pension fund, namely that the
applicant in terms thereof was entitled to the benefits of an early
retirement pension despite
the fact that he had been dismissed. In
this regard counsel submitted that the entitlement to post
retirement medical aid benefits
derived from an entirely different
source, namely the employment policy of the respondent as adopted in
terms of its Council
Resolution of 17 May 1990 and in terms of which
post retirement benefits are extended only to staff members who
retire from the
respondent’s service. There is no provision
for such benefits to be extended to staff members who are dismissed
from service.
On behalf of the
respondent counsel submitted that the settlement agreement as a
whole is consistent only with the situation which
prevailed at the
time of its conclusion, namely that the applicant withdrew his
resistance to the dismissal in terms of the findings
of the
disciplinary committee. Accordingly he withdrew the referral to the
CCMA and abandoned his dispute with the respondent,
but on the
agreed basis that each party would then bear his or its own legal
costs thus incurred, as per the introductory portion
of Clause 5 of
the printed part of the settlement agreement. In the result his
dismissal from the service of the respondent remained
unaffected and
in reality became final.
What followed thereafter
was the manuscript Clause 6(a) which, so counsel for the respondent
submitted, did no more than record
the position as understood by the
parties in the course of their preceding negotiations. This was
that, despite the dismissal
of the applicant, his entitlement to
early retirement benefits in terms of the “
rules of the
Pension
” remained unaffected by the outcome of the
disciplinary hearing.
In context the
expression “
rules of the Pension
” could only have
been intended as a reference to the rules of the “
Pension
Fund
”, with the word “
Fund
” being
inadvertently omitted. During the course of argument counsel for
both parties appeared to accept the reference on
that basis,
although they differed upon the meaning to be attributed to Clause
6(a) as a whole.
On the respondent’s
approach the reference to the applicant’s entitlement to early
retirement in this sub-clause related
to and merely recorded his
entitlement to early retirement benefits in terms of the pension
fund rules and such recordal was
quite independent from the
respondent’s employment conditions and policy with regard to
post retirement medical aid benefits.
By reason thereof it was
then necessary for the applicant, so counsel for the respondent
submitted, to include Clause 6(b) in
the agreement. He thus created
for himself an entitlement, despite accepting his dismissal, for
making representations to the
respondent with a view to securing for
himself, in addition to the early retirement pension benefits in
terms of the pension
fund rules, also continued medical aid benefits
by way of a special concession from the respondent itself. Had he
been entitled
as of right to the post retirement medical aid
benefits, as he would have been had he taken early retirement, then
there would
have been no need to have reserved this right, or indeed
to have to make such representations.
The meanings of a
“
representation
” include,
inter alia
, the
action of “
presenting a fact etc. before another or others;
an account, esp. one intended to convey a particular view and to
influence opinion
or action … a formal and serious statement
of facts, reasons, or arguments, made with the aim of influencing
action, conduct,
etc., … an expostulation.
” and
“
re-present
” that of “
Present again or a
second time
”, whilst the meanings of “
present
”
include to “
Bring or lay before a court, magistrate, etc.,
for consideration or trial
” (The New Shorter Oxford
English Dictionary on Historical Principles, Ed. L. Brown, 1973).
Representations therefore envisage
making submissions for
consideration and possible rejection, as opposed to a claim of right
which permits of no compromise.
Of course, the actual
wording employed in the formulation of Clause 6(b) is problematical
because it refers to the right to make
representations in respect of
the applicant’s “
right”
to post retirement
medical aid benefits. However, it does not appear to me that this
reference was intended to elevate it to
the level of an already
existing right to such benefits. That would conflict with the whole
meaning of the sub-clause which,
in context, is aimed at creating a
right to make representations to the respondent for a concession,
namely for the respondent
to treat the applicant as though he had
taken early retirement. Only if such representations were
successful, would a right to
post retirement medical aid benefits be
created and come into force.
The whole concept and
expression of “
post retirement
” benefits would
appear to me to have given rise to confusion in the dispute between
the parties. It is necessary to appreciate
that there is a clear
distinction between two entirely different concepts. On the one hand
there is retirement in terms of the
rules of the pension fund, where
an employee who is over 55 years of age becomes entitled, upon
ceasing employment with his or
her employer, as of right to
periodical (pension) payments from the fund extending for the
remainder of his or her natural lifetime.
When this entitlement
arises, the employer and the employment conditions are no longer
involved because the condition of being
employed has come to an end.
The right to a pension which supercedes the employment admittedly
owes its origin to the terms of
employment which included membership
of and contributions to the pension fund, but the employee’s
rights against the pension
fund to a pension only matures once the
state of being employed ceases.
On the other hand there
are the employment conditions which governed the employment
relationship as between the employee and the
employer. These may
include terms which continue to prevail even after the employee
formally ceases to be in a state of active
employment with the
employer. Whilst active employment may involve the reciprocal
rendering of services by the employee in return
for emoluments and
benefits provided by the employer, it is common for certain benefits
as provided by the employer to continue
even after the employee
consensually ceases the active rendering of services to the
employer.
It is often said that
the employment contract ceases upon retirement, but in reality that
is not necessarily the case. If there
are ongoing contractual
benefits to be provided by the employer and to which the “retired”
employee remains entitled
after the cessation of his or her duty to
render services to the employer, then the employment contract
endures (in a more limited
form) until such time as there is no
longer any liability to provide such ongoing contractual benefits.
An example of such a
situation is the post retirement medical aid benefits which, in
terms of the 1990 policy decision of the
respondent, are extended to
employees of the respondent who reach the age where they become
contractually entitled to cease active
duty, that is, to “
retire
”
in the sense of ceasing to render services. As against the
respondent (employer) they remain contractually entitled to
continued (post retirement) medical aid benefits for the duration of
their lives. By contrast, as against the pension fund they
then
become contractually (in terms of an entirely different contract)
entitled to claim payment of their pension payments for
the duration
of their lives. But the important point is that the former right is
founded in the continuation of their employment
contacts with the
respondent. This is because the 1990 policy decision to extend such
benefits to “
retired
” employees became part and
parcel of their employment contracts and thereby endure beyond the
time where the affected employees
cease to render active service to
the respondent.
The difficulty with the
situation of the applicant arises from the fact that he was
dismissed. A dismissal, if valid, has the
effect of the termination
of the contract of employment as between the employer and employee.
In terms of the 1990 policy of
the respondent, the post retirement
medical aid benefits only accrue to those of its employees who
contractually retire. The
applicant therefore falls short on two
counts, namely he did not contractually retire and in any event,
upon his dismissal the
contractual relationship as between the
applicant and the respondent ceased to be effective. There is thus
no ongoing entitlement,
or corresponding obligation, to extend these
medical aid benefits to him.
This then explains the
battle lines as between the applicant and the respondent. The
respondent contends that the employment relationship
between it and
the applicant ceased with the dismissal of the applicant and that
the preceding employment contract between them
was thereupon
dissolved. Consequently the applicant did not contractually qualify
for continued medical aid benefits and there
remains no contractual
nexus between the parties, nor any obligation upon the respondent to
afford the applicant any further
benefits whatsoever. On the
approach of the respondent, the effect of the settlement agreement
was not to disturb the result
of the disciplinary hearing and the
applicant’s subsequent dismissal. The agreement merely
recorded that the applicant’s
rights to early retirement in
terms of the pension fund rules remained unaffected thereby.
In so doing the
respondent draws a clear distinction between early retirement in
terms of the rules of the pension fund, as opposed
to consensual
early retirement by agreement with the respondent in terms of their
contractual employment relationship. It is
the case of the
respondent that by virtue of the negotiations at and in concluding
the settlement agreement, the parties did
not intend and no
agreement was reached to set aside of the dismissal of the
applicant.
The applicant, by
contrast and in order to qualify for the continued medical aid
benefits, seeks to show a continued contractual
entitlement to
ongoing medical aid benefits and therefore, of necessity, he
contends that the settlement agreement of 6 December
2010 reinstated
his employment status. Inherent in the case for the applicant is a
recognition that unless his employment status
was restored and his
dismissal reversed, he cannot succeed.
If the settlement
agreement is afforded the construction contended for by the
applicant then, in the absence of any express provisions
to that
effect, terms have to be implied that the parties agreed firstly to
reverse the applicant’s dismissal and then
that he be afforded
the privilege of taking early voluntary retirement from the service
of the respondent. Thereby he would then
become entitled as of right
also to post retirement medical aid benefits from the respondent.
These terms would have to be implied
despite the findings of and
recommendations by the disciplinary committee and the respondent’s
decision to dismiss the
applicant.
I must confess to some
difficulty with this notion, not least because to imply such terms
into the settlement agreement would
not appear to me to be
necessary, nor even reasonable or equitable within the contemplation
envisaged by Diemont AJ in Dennis
vs Garment Workers’ Union,
Cape Peninsula (supra) at page 238D.
There is nothing to
suggest that the inevitable or even likely result of the arbitration
before the CCMA would have been the reinstatement
of the applicant
in the employ of the respondent. In fact, upon the respondent’s
version of the negotiations, which must
be accepted in the absence
of a referral to oral evidence which the applicant declined (See:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(AD) at page 634E - 635C), the applicant offered to withdraw the
proceedings. The term of the agreement that each party pay their
own
costs was a concession then extracted from the respondent in the
course of the negotiations which followed. This suggests
that the
respondent was not under any undue pressure to compromise its
position at the arbitration proceedings before the CCMA.
I find the
suggestion that the respondent then voluntarily agreed, by way of
necessary implication, to the reversal of both the
findings of the
disciplinary committee, as well as the subsequent dismissal of the
applicant and to the applicant’s summary
reinstatement in the
employ of the respondent, so as to render the latter liable, out of
its own resources, then to subsidise
the applicant’s medical
aid contributions for the rest of his natural life, unpersuasive in
all the circumstances.
This suggestion implies
a conscious decision by the respondent to agree to a proposition
which would result in the long term subsidisation
of the applicant
by the respondent. If this were not so, then the conclusion of the
settlement agreement would have served no
practical purpose, because
the applicant’s entitlement to his pension benefits stood
unaffected by the fact that he was
dismissed, as opposed to an
agreed early retirement as between the applicant and the respondent.
In Twigger vs Starweave
(Pty) Limited
1969 (4) SA 369
(N) at page 375B-E Harcourt J, with
whom Leon J concurred, compared donation with waiver and held that
there was a probability
against a conclusion of such an agreement,
unless the parties stood in a special relationship to one another.
At page 375D-E
the Court held that it was “
..extremely
improbable that out of pure liberality an employer would agree to
the novation of a contract of service which substantially
increased
the servant’s remuneration (and the employer’s
obligations) by providing free accommodation for the servant.
”
By parity of reasoning it appears to me improbable that the
respondent, on 6 December 2010 and at the CCMA arbitration
proceedings, would have been agreeable to impliedly make the
concessions now claimed by the applicant.
In my view the
settlement agreement, in all the circumstances and as framed, is
inconsistent with an implied term reinstating
the applicant. Had
that been the intention it would have been a simple matter to have
said so. Instead, in the opening portion
of Clause 5, the applicant
withdraws the referral and abandons the dispute. That, on a plain
reading, leaves the dismissal intact
and unaffected. That impression
is reinforced by the provision in Clause 6(a) that the applicant’s
entitlement to early
retirement benefits (in terms of the rules of
the pension fund) remain unaffected by the outcome of the
disciplinary proceedings.
The intention, nevertheless to make
representations for a concession with regard to post retirement
medical aid benefits (to
be derived from the respondent as opposed
to the pension fund) as contained in Clause 6(b) further reinforces
the notion that
the dismissal stood and there was no implied
reversal thereof.
In Bato Star Fishing
(Pty) Limited vs Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) O’Regan J at page 506I-J remarked in para 25 that the
clear purpose of section 6 of PAJA was to codify the grounds
of
judicial review of administrative action, as defined therein. In the
present matter the applicant seeks in prayer 1 of the
notice of
motion an order in terms of s6(3)(b) of PAJA an order setting aside
respondent’s decision refusing to grant the
medical aid
benefits to the applicant.
The relevant portions of
s6(3) of PAJA read, as follows –
“
(3)
If any person relies on the ground of review referred to in
subsection (2) (g), he or she may in respect of a failure to take
a
decision, where-
(a) (i) an administrator
has a duty to take a decision;
(ii)
there is no law that prescribes a period within which the
administrator is required to take that decision; and
(iii) the administrator
has failed to take that decision, institute proceedings in a court or
tribunal for judicial review of the
failure to take the decision on
the ground that there has been unreasonable delay in taking the
decision; or
(b) (i) an administrator
has a duty to take a decision;
(ii) a law prescribes a
period within which the administrator is required to take that
decision; and
the
administrator has failed to take that decision before the expiration
of that period, institute proceedings in a court or tribunal
for
judicial review of the failure to take the decision within that
period on the ground that the administrator has a duty to
take the
decision notwithstanding the expiration of that period.”; and
the provisions of section
6(2)(g) of PAJA, referred to in section 6(3), read as follows –
“
(2)
A court or tribunal has the power to judicially review an
administrative action if-
(a) ……….
(g) the action concerned
consists of a failure to take a decision;”
It is not clear how the
provisions of PAJA, as relied upon by the applicant and which relate
to the failure to take a decision,
are applicable to the
respondent’s positive decision, namely to refuse to grant
(post retirement) benefits to the applicant.
The nature of the
applicant’s complaint against the respondent is that the
decision, as taken by the latter, appears to
be “misinterpreting
this issue” (as per paragraph 15 of the applicant’s
founding affidavit).
It may have been more
appropriate to have relied upon the provisions of s6(2)(d) which
contemplate the disputed decision being
influenced by an error of
law, or s6(2)(h) on the basis that it was entirely unreasonable. In
Bato Star (supra) in para 45 at
page 513 A-B the Court held that –
“
Section
6(2)(h) should then be understood to require a simple test, namely
than an administrative decision will be reviewable if
, in Lord
Cooke’s words, it is one that a reasonable decision-maker could
not reach.”
At the conclusion of
argument counsel for the applicant submitted an amended draft order
and sought judgment in terms thereof.
The draft presupposes the
setting aside of the respondent’s decision to deny the
applicant the disputed benefits, but seeks
to avoid the issue being
referred back to the respondent for consideration afresh. Instead
the draft contemplates an order directing
the respondent to grant
the applicant the disputed benefits. In Sidumo and Another v
Rustenberg Platinum Mines Ltd and Others
2008 (4) SA 24
(CC) at page
57E-F in para 98 Navsa AJ pointed out that PAJA provides only in
exceptional cases for the court to substitute its
own decision or to
correct a defect resulting from an administrative action. In my view
this is not such a case, but for the
reasons appearing below it is
unnecessary to finally decide this issue.
It is important to bear
in mind the distinction between an appeal and a review. The real
question on review is not whether the
record of proceedings reveal
factors which would justify the outcome contended for by the
applicant, but rather whether the decision
maker in all the
circumstances of the matter can be said not to have properly
exercised the powers entrusted to him. (Sidumo
(supra) at page 44 B)
In the present matter
the respondent considered the settlement agreement in context and
arrived at an interpretation thereof on
the basis that the
applicant’s dismissal stood, that the applicant was not by
virtue of the agreement reinstated in his
employment, consequently
that he was not as of right entitled to the benefits requested and
that no good grounds existed to award
him benefits by way of
exception.
In all the circumstances
the question is therefore not necessarily whether the respondent was
correct in its interpretation of
the settlement agreement, but
rather whether it has been shown that a reasonable decision maker in
the position of the respondent
could not have come to such
conclusion. (Sidumo (supra) at page 61 E-F in para 119). In my view
the question must inevitably
be answered in favour of the respondent
and the review therefore cannot succeed.
But there is another
approach to the review which requires consideration. The proceedings
before me were argued by counsel for
both sides on the basis that
the disputed decision was an administrative act reviewable by this
court. As already indicated,
I have come to the conclusion and for
the reasons given that the review cannot succeed. But even if I were
wrong in this regard,
then in any event it appears to me that the
dispute does not qualify as administrative act reviewable in terms
of PAJA.
The source of the power
to refuse the applicant post termination medical aid benefits
derived from the terms of the original employment
contract between
the parties and which included the respondent’s policy
regarding post retirement benefits and the limitations
associated
therewith. This was recognised by the subsequent settlement
agreement before the CCMA. The nature of the power is
therefore
contractual and does not constitute reviewable administrative action
in terms of PAJA, as was held in Chirwa vs Transnet
Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at page 415 D-G in para 142.
But even if the
respondent’s refusal of benefits were correctly classifiable
as administrative action, then not all administrative
acts are
reviewable in terms of the provisions of PAJA. There is a clear
distinction between the areas of jurisdiction arising
from the
Labour Relations Act 66 of 1995 (the LRA) and those of PAJA. This
was discussed in some detail Sidumo (supra) at pages
56D to 58F in
paragraphs 94 to 104. There the Constitutional Court concluded that
PAJA did not apply to arbitration awards in
terms of the LRA. In
Kriel v Legal Aid Board and Others
2010 (2) SA 282
(SCA) at page
288B-C in para 18 the Supreme Court of Appeal confirmed that a
dismissal from employment was not an administrative
action which can
be reviewed in terms of PAJA.
By parity of reasoning
the refusal to extend post retirement benefits to the applicant is
arguably an unfair labour practice within
the contemplation of
section 186(2)(a) of the LRA which defines an unfair labour
practice,
inter alia
, as an act or omission involving the
provision of benefits to an employee. This may be reviewable under
s158(1)(g) of the LRA
(Kriel (supra) at para 21).
In either event it
follows that the present review proceedings cannot succeed. In the
result the application is dismissed, with
costs.
____________________
VAN ZÿL, J.
Appearances:
For the Applicant: Adv R.
D. S. Sichel
Instructed by Weber
Attorneys, Durban.
For the Respondents: Adv
R. Pillemer
Instructed by A. P.
Shangase & Associates, Durban.
Matter argued: 2
September 2013
Judgment: 16 September
2013