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[2012] ZAKZDHC 86
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Ntsalla v Matatiele Local Municipality (D225/11) [2012] ZAKZDHC 86 (27 September 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Case no:
D225/11
In the matter between:
THABISO NTSALLA
........................................................................................
Applicant
and
MATATIELE LOCAL MUNICIPALITY
.........................................................
Respondent
Heard: 02 August 2012
Delivered: 27 September 2012
Summary: Exception to a plea –
res judicata
raised to a claim for damages following
arbitration – same cause of action arbitrated is relied on in
the statement of claim
– exception upheld.
_____________________________________________________________________
JUDGMENT
CELE J
Introduction
[1] These proceedings entail a
consideration of three points raised
in limine
by the
respondent to a pleaded case of the applicant. The applicant opposed
each of the grounds on which her claim is sought to
be dismissed in
the event any of the exceptions is granted.
Factual Background
[2] The applicant
commenced her employment with the respondent in the position of a
Strategic Manager
for a period of five years from 1 June 2007
in the business of the council and she reported to
the Mayor.
[3] On 8 December
2008, the applicant went on leave. Whilst she was on leave and on 18
December 2008, the Council of the respondent
convened a meeting where
it resolved to change the applicant’s designation from
Strategic Manager to Manager still in the
office of the Mayor. When
she returned from her leave she was appraised of the change to her
position.
[4] She took the
position that this resolution was taken unilaterally and without
consulting her about the reasons thereof and the
adverse effects of
such amendment to her employment conditions, in other words, that the
audi alteram partem
rule
was not met. She considered the respondent to have breached her
contract of employment by reason of the said unilateral change
to the
terms and conditions of her employment and on 20 April 2009 she
issued the respondent with a letter of her resignation,
saying that
she had been constructively dismissed by the respondent. The
respondent accepted her resignation but disputed constructive
dismissal, stating that the applicant knew about the change of her
position and even typed the organogram in which the change was
reflected.
[5] She referred a dispute of unfair
constructive dismissal to the Commission for Conciliation, Mediation
and Arbitration, the CCMA,
for conciliation and later for arbitration
in June 2009. The arbitration hearing commenced on 12 May 2010 and
was decided by default
in her favour on 18 May 2010 by the CCMA’s
Commissioner, Mr Jabulani Ngwane. She was awarded an amount of six
months’
salary compensation in the total of R341 000, 00. The
respondent unsuccessfully sought rescission of the default award but
elected
not to seek a review of the ruling. Instead, it paid the
applicant the sum of R341, 000,00 due in terms of the award.
[6] Notwithstanding her success in the
CCMA, the applicant filed a statement of claim with the Registrar of
this Court on 12 May
2011 under rule 6 of the rules of this Court.
She is claiming the full damages she says she has suffered as a
result of the unlawful
breach of her contract, being what she would
have earned up to the expiry of her contract of employment, less the
amount already
paid in terms of the CCMA award. The applicant
describes the alleged breach,
inter alia,
in the following
terms:
‘
3.6
When she was on leave, on 18 December 2008 the Council of the
Respondent convened a meeting where it resolved to change the
Applicant’s designation from Strategic Manager to Manager in
the office of the Mayor. This resolution was taken unilaterally
and
without consulting the Applicant about the reasons thereof and the
adverse effects of such amendment to her employment conditions.
.......
3.9
The applicant tried on numerous occasions to reverse the unilateral
change to terms and conditions of employment but to no avail.
3.10
The applicant then considered the Respondent to have breached her
contract of employment by reason of the said unilateral change
to the
terms and conditions of her employment and she resigned.
......
3.12
It is apparent from the applicant’s notice of resignation that
same was not a voluntary resignation but was as a result
of
circumstances beyond her control, namely, the unilateral change to
the terms and conditions of her employment.
...............
4
The respondent’s unilateral change to the terms and conditions
of the applicant’s employment amounted to an unlawful
breach of
her employment contract.’
The issue
[7] The three points raised by the
respondent
in limine
in regard to the applicant’s claim
are that:
The matter is
res judicata
in
that the claim before this Court is one which has already been
determined before the CCMA by way of the applicant’s
constructive dismissal dispute and consequent award.
Alternatively, the complaint relates
to an alleged unilateral change to terms and conditions of
employment which constitutes a
demotion and should accordingly have
been dealt with by the CCMA as an alternative to the constructive
dismissal claim.
Further
alternatively and only in the event that the applicant succeeds in
proving that she has a valid contractual claim, her
claim is limited
to thirty days’ notice in terms of clause 4.3 of the
applicant’s employment contract.
Evaluation
[8] As correctly
submitted by Ms Reddy for the applicant this Court has jurisdiction
to hear claims for damages arising out of a
breach of contract of
employment. Sections 77 (3) and 77 A (e) of the Basic Conditions of
Employment Act Number 75 of 1997, the
BCEA, confer concurrent
jurisdiction on this Court with the High Court to determine a matter
concerning a contract of employment
and to award damages for a breach
of contract. In this respect, section 195 of the Act
1
provides that:
‘
An
order or award of compensation made in terms of this Chapter is in
addition to, and not a substitute for, any other amount to
which the
employee is entitled in terms of any law, collective agreement or
contract of employment.’
[9] An employee who
seeks relief under the remedies in terms of the Act does not, by
doing so abandon his or her contractual rights
2
.
The respondent does not appear to take issue with this legal right to
claim on contract.
Res
judicata
is
raised against the pleaded facts and legal principles relied on by
the applicant.
[10] The
applicant’s complaint from her pleaded case is that the
respondent failed to consult her before changing her designation
from
Strategic Manager to Manager in the office of the Mayor, and that she
regards this change of designation to be a unilateral
change to her
terms and conditions of employment, which is in her view a breach of
the employment contract entitling her to resign.
The respondent has
correctly contended that there is no express term in the applicant’s
contract of employment which prevents
the respondent from changing
her designation without consulting her, nor is it pleaded that such
express term exists. In order
for the applicant to succeed in her
claim, it is necessary for her to allege and prove that such a term
is implied. The basis for
such a term to be implied would be if it
was implied with reference to labour legislation which imports the
term by operation of
law. That has not been pleaded
3
.
[11] As also
correctly submitted by Mr Menesses for the respondent, it has been
held in
Verhagen
v Abramowitz
4
that:
‘
When
the matter has been referred to an arbitrator for a decision and an
award has been given the situation is materially altered.
Thus in
Strutt
v Chalmers and Another
,
1959 (2) SA 536
(N), it was held that a party to an arbitration is
not entitled to seek a decision of the Court on the very same matters
already
referred to arbitration, and when an award has in fact been
made it has been held that such an award is equivalent to
lis
finita
and as between the parties the matter is
res
judicata
(
Schoeman
v Van Rensburg
,
1942 TPD 175
at p 177).’
[12]
The
arbitrations of the Commission for Conciliation, Mediation and
Arbitration, the CCMA, are compulsory and designed to dispose
of a
dispute finally through an award that is subject to review but not to
appeal on its merits.
5
A
certified award of the CCMA may be enforced as if it were an order of
this Court.
6
In the
circumstances, it is clear that
res
judicata
may
be raised in respect of an arbitration award issued by the CCMA which
by its very design has disposed of the dispute finally.
[13] The cause of action
relied upon by the applicant in her claim is the unilateral change to
her terms and conditions of employment.
The arbitrating commissioner
found in paragraph 8 of his award that:
‘
I
am satisfied on the evidence before me which stands unchallenged,
that: 1) The Respondent’s conduct to pass a resolution
unilaterally changing the applicant’s designation and affected
her responsibilities caused the applicant to tender her resignation
on 20 April 2009.’
[14]
The
pleaded case of the applicant has accordingly been decided in her
favour by the CCMA. She is not entitled to rely on the same
cause of
action in a claim before this Court. The defence of the respondent
will help prevent the repetition of lawsuits and the
possibility of
conflicting decisions on points of law or facts see
Evins
v Shield Insurance Co Ltd
.
7
[15]
Having reflected on the law and fairness of the costs order, the
following order is accordingly issued:
The defence of
res judicata
is
upheld.
The claim of the applicant is
dismissed.
The applicant is to pay costs hereof.
___________
Cele J.
Judge of the Labour Court.
APPEARANCES:
FOR THE APPLICANT: Ms S Reddy
Instructed by A P Shangase Attorneys,
Durban.
FOR THE RESPONDENT: Mr R Menesses
Instructed by Barkers Attorneys,
Durban.
1
The
Labour Relations Act Number 66 of 1995.
2
See
Manana v King Sabata Dalindyebo Municipality
(2011) 32 ILJ
581 (SCA).
3
In
Gcaba v Minister for Safety and
Security and Others
(2010) 31 ILJ 296
(CC) t
he Constitutional Court held that
the question in such cases is whether the court has jurisdiction
over the pleaded claim, and
not whether it has jurisdiction over
some other claim that has not been pleaded but could possibly arise
from the same facts.
4
1960
(4) SA 942
(C) at 950 G-H.
5
It
is for that reason that one may therefore not split a single matter
into discrete parts to arbitrate one while litigating the
other: See
Gibb v Nedcor Ltd
(1998) 19 ILJ 364 (LC).
6
Section
142(1) and (3) of the Labour Relations Act.
7
1980
(2) SA 814
(A) at 835 G.