About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 5
|
|
Rapoo v Rustenburg Local Municipality (JA5/18) [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC) (20 February 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA5/18
In the matter between
OTHUSITSE HABAKKUK
RAPOO Appellant
and
RUSTENBURG LOCAL
MUNICIPALITY
Respondent
Heard:
03 September 2019
Delivered:
20 February 2020
Summary: Principle
that an appeal lies against a court order and not the reasons for
judgment restated. Lower court’s
reasons for judgment
indicating that the employee is compensated was for an automatically
unfair dismissal in terms of section
187(1)(f) of the LRA –
however clear from court order that compensation awarded in terms of
section 50(2)(a) of EEA for unfair
discrimination in terms of section
6 of the EEA. Court’s error not entitling appellant to 24
months’ compensation in
terms of section 194(3) of the LRA as
he was not dismissed but resigned.
Practice and procedure
– principle that applicant must state in his statement of case
the nature and quantum of damages sought
restated –
impermissible for an employee to file a document extraneous to his
statement of claim in which he seeks to particularise
his damages -
such document does not constitute proof of damages. Not
competent for the appeal court to consider an application
to adduce
new evidence in a claim for damages that was not properly before the
court below.
Coram: Waglay JP,
Murphy and Kathree-Setiloane AJJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This is an application for reinstatement of an appeal which lies
against paragraph
5
[1]
of the
order of the Labour Court (Mamasebo AJ) awarding the appellant
compensation and damages as a result of being unfairly
discriminated against, in terms of section 6 of the Employment Equity
Act,
[2]
by the Rustenburg Local
Municipality (“Municipality”).
Explanation for the
delay
[2]
The appeal lapsed as a result of the appellant’s failure to
lodge the record
of appeal within the prescribed time limits. It was
filed 13 days out of time. The appellant makes application for
condonation
for the late filing of the record and reinstatement of
the appeal. The Municipality does not oppose the application.
[3]
The order for leave to appeal was granted by the Labour Court on 19
December 2017.
It turned out that the parties were of the mistaken
view that the calculation of the
dies
for the filing of the
appeal record in this Court included the court recess days in
December and that the appellant had until the
end of April 2018 to
file the record. Based on this misunderstanding the parties
agreed to have the appeal record filed by
Monday 9 April 2018. Thus,
pursuant to the agreement, the appellant filed the record on 9 April
2018. However, by that stage the
appeal had already lapsed.
[4]
I accept the appellant’s explanation for the delay as he was
unrepresented at
the time and filed the record on the date agreed
upon with the Municipality. However, to succeed in its reinstatement
application,
the appellant must, in addition to a reasonable
explanation for the delay, also demonstrate that he has a reasonable
prospect of
success in the appeal.
Prospects of success
in the appeal
[5]
The appellant was employed by the Municipality on 1 November 2004 in
its Local Development
Unit. He reported directly to the Unit Manager,
Ms Kathleen Matshidiso (“Ms Matshidiso”). During 2007,
the Unit was
restructured into a Directorate: Local Economic
Development. The appellant was reappointed into the new structure as
Coordinator:
Enterprise Support. He was responsible for Small, Micro
and Medium Enterprise Development & Support (“SMME
Enterprise
Development”). Ms Matshidiso was reappointed as Unit
Manager: SMME Enterprise Development and the appellant continued to
report to her.
[6]
The appellant had been diagnosed as suffering from a mental illness.
The Municipality
was informed of this in November 2011. During
October/November 2011, the appellant was hospitalised in a
psychiatric hospital in
Randburg. The Municipality placed the
appellant on seven weeks of incapacity leave to enable him to receive
further psychiatric
treatment from 6 June 2012 to 31 July 2012.
[7]
In 2012, two separate medical reports prepared by the appellant’s
psychiatrist,
Dr L Mashayamombe (“Dr Mashayamombe”), were
presented to the Municipality recommending that he be removed from
his
stressful working conditions and be accommodated in a unit where
he would not report to his supervisor, Ms Matshidiso, as there
was a
history of conflict between the two of them. The first report was
presented to the Municipality on 12 June 2012 and the second
on 7
September 2012.
[8]
The appellant testified in the Labour Court that he had been
victimised by Ms Mashidiso
and that he had lodged a number of
grievances against her to no avail. One of his grievances was that he
would come to work each
day but was not given work to do. Another was
that when he was allocated work, it was beneath him and did not fall
within his area
of responsibility.
[9]
The Municipality failed to accommodate the appellant as recommended
by Dr Mashayamombe.
Dr Mashayamombe testified at the trial that the
appellant’s mental illness (Depressive Mood Disorder) was
perpetuated by
the stress he experienced in his work environment. He
was, however, of the view that the appellant was likely to recover
after
treatment and that his transfer to a different unit was for an
initial period of six months to enable the appellant to recover.
[10]
On 5 November 2015 and after receiving the second report from Dr
Mashayamombe, Mrs Matshadiso
recommended to the Director: Local
Economic Development
inter alia
that the appellant be sent for
an independent medical assessment by a psychiatrist appointed by the
Municipality, and that he be
given an incapacity hearing as he was
unable to execute his duties. In summation, she reiterated that “the
most appropriate
disciplinary measures be taken against [the
appellant] for failure to perform his duties”.
[11]
A year later, the Municipality charged the appellant with gross
dereliction of duty, absence
without leave, gross insubordination and
breach of duty of good faith. The disciplinary hearing was held on 10
March 2014. On 15
December 2015, the appellant was found guilty of
all four counts and the issue of sanction was reserved pending the
outcome of
an incapacity hearing.
[12]
However, the appellant resigned on 3 March 2015 and before an
incapacity hearing could be held.
In the Labour Court
[12]
Having heard the testimony of the appellant and his expert witness,
the Labour Court held:
‘
The
Municipality has been on a collision course with the [appellant] from
8 December 2011. It knew that the applicant had a mental
condition
and, evidently, despite numerous reports from the different medical
specialists, failed to intervene. Instead it chose
to pursue the
disciplinary enquiry route by charging him with misconduct. There is
no doubt that a person found to be suffering
from a mental illness
which is job-related must be treated with sympathy, understanding and
compassion. The disciplinary chairperson’s
findings in respect
of the sanction addressed all relevant aspects including the correct
procedure that the Municipality should
have followed. However, the
Municipality soldiered on and maintained the same stressful
environment for the applicant without any
effort to implement the
recommendations of Dr Mashayamombe and Ms Zwane [Occupational
Therapist)’.
[13]
On the question of whether the appellant was discriminated against in
terms of section 6 of the
EEA, the Labour Court observed:
‘
In
my view, the delay by the Municipality to move the [appellant] from
the stressful environment as recommended by the medical experts
exasperated his condition and left him to his own devices to contend
with a disability contemplated in the EEA. Section 1 of the
EEA
defines people with disability as “people who have a long term
or mental impairment which substantially limits their
prospects of
entry into or advancement in employment.”
…
The appellant has on
several occasions produced medical reports saying that he was unfit.
The municipality clearly had a problem
with his continued absences.
However, the municipality has failed to move him to a different unit
to report under a different manager
for at least six months while he
continued his therapy. Clearly the municipality has failed to comply
with Code of Good Practices
on the Employment of People with
Disabilities under the EEA, the Constitution of the Republic of South
Africa, International and
foreign law as well as best practices.
There is no doubt in my
mind that the Municipality avoided to deal with the [appellant’s]
mental impairment and persistently
ignored his grievances. The
approach adopted by the Municipality in dealing with the
[appellant’s] disability, was it itself,
a discriminatory
practice. I therefore find that the Municipality discriminated
against the [appellant].’
[14]
On the question of whether the discrimination was unfair, the Labour
court stated that the Municipality
should have conducted an
incapacity investigation which it failed to do and it was required to
accommodate the appellant reasonably,
which it also failed to do.
She, accordingly, found the discrimination to be unfair.
[15]
In relation to the appellant’s claims for compensation and
damages under section 50(2)
of the EEA, the Labour Court observed:
‘
The
relief sought by the [appellant] is located in section 50(a), (b) and
(c) as well as costs. The Labour Appeal Court in the SAA
Airways
[(2014) 35 ILJ 2774 (LAC) at 2880 para 79] case distinguished between
damages and compensation and held that sometimes
an award for damages
in respect of the patrimonial loss and compensation for injured
feelings, may, depending on circumstances
and facts of the case be
justified. The order must not only be appropriate but just and
equitable. The [appellant’s] testimony
has not only shown how
the Municipality has totally ignored his plight for reasonable
accommodation for him to recover, but how
he ended up feeling
humiliated in meetings until he stopped attending them. It is clear
that he did not only lose a job he loved
but lost income as well. The
award for damages will account for the financial position that the
applicant would have been in had
he not been unfairly discriminated
against and the compensation would be for the humiliation and hurt
suffered by the applicant
as a result of the unfair discrimination.
The [appellant] has
prepared a Schedule of his Loss accounting for his claim in the total
amount of R1, 984 075.00. Under the head
Violation of Statutory
Rights, a total amount of R1039503.84 is claimed being the equivalent
of a maximum of 20 months’ remuneration.
He also claims R207
900.77 for pain and suffering and loss of amenities of life
calculated at 20% of the 24 months’ remuneration;
an amount of
R104 507.44 for special damages and R396 172.40 for future loss of
income.’
[16]
The Labour Court took into account the following factors in
determining fair and equitable compensation:
‘
43.1
The fact that medical certificates and medical reports were submitted
with recommendations to the Municipality but they were
completely
ignored by the employer;
43.2 The employer’s
attitude and failure to accord reasonable accommodation to the
[appellant] which it perceived as giving
him unwarranted special
treatment;
43.3 The humiliation that
the [appellant] endured at the hands of the employer and being
subjected to a disciplinary enquiry instead
of the determination of
his incapacity;
43.4 The [appellant]
suffered further humiliation by being made to perform work that was
not suited and thereafter being kept in
the office without being
allocated any work or instructions.
43.5 the [appellant]
incurred some patrimonial loss in terms of medical costs, legal costs
for his erstwhile attorneys and obtaining
the transcribed record of
the disciplinary enquiry;
43.6 Because of the
humiliation, victimisation and harassment by the employer [the
appellant] had to receive psychiatric treatment
having suffered
severe depression;
4.7 The [appellant’s]
length of service with the Municipality. He enjoyed his work prior to
the hostility and tension between
him and his immediate supervisor.
He struck me as an intelligent employee who was able to grapple with
presenting his case
unrepresented and still remained coherent in his
argument. This can only mean that in a conducive work environment he
can be categorised
as a star performer. He interacted well with
colleagues except Ms Matshidiso. It was unfair that his mental
condition was used
by his employer to his detriment.’
[17]
In relation to the proven damages to be awarded to the [appellant],
the Labour Court allowed
the proven medical expenses paid directly by
the [appellant] in the amount of R11 398.85; legal expenses for David
Cartwright Attorneys
in the sum of R5000.00 and the transcribed
record for the disciplinary inquiry of R25 490.40 totalling R41
881.06.
[18]
On the question of compensation to be awarded to the appellant, the
Labour Court curiously held
that from the appellant’s annual
income of R295 704.00, she regarded the amount of R200 000.00 to be
just and equitable as
compensation for his automatically unfair
dismissal in terms of 187(1)(f) of the Labour Relations Act
(“LRA”).
[3]
[19]
The Labour Court made the following order:
‘
1.
The lack of accommodation, harassment and victimisation of the
[appellant] by the Rustenburg Local Municipality amounts to unfair
discrimination.
2. The Municipality is
directed to take all reasonable steps to prevent the recurrence of
unfair discrimination or similar practice
occurring in the future
against [the appellant] or any other employee.
3. It is declared that
the witness of the applicant, Dr Mashayamombe, was a necessary expert
witness.
4. The Municipality is
directed to pay the reasonable travelling costs/qualifying fees of
applicant’s expert witness, Dr L
Mashayamombe, and for
preparation of the expert summaries for the trial.
5. Within 14 days of this
order the Municipality must pay the [appellant] an amount of R241
881.06 as compensation.
6. The Registrar is
directed to send a copy of this judgment to the Municipal Manager of
Rustenburg Local Municipality.
7. Costs of suit.’
Compensation
[20]
As already alluded to, the appeal lies only against paragraph 5 of
the Labour Court order in
terms of which the Labour Court ordered the
Municipality to pay the appellant the amount of R241 881.00
comprising both compensation
and damages as contemplated section
50(2)(a) and (b) of the EEA. Section 50(2) of the EEA provides:
‘
(2)
if the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make an appropriate order
that
is just and equitable in the circumstances, including –
(a)
Payment of compensation by the employer to
that employee;
(b)
Payment of damages by the employer to that
employee;
(c)
An order directing the employer to take
steps to prevent the same unfair discrimination or a similar practice
occurring in the future
in respect of other employees;
(d)
An order directing an employer, other than
a designated employer, to comply with Chapter III as if it were a
designated employer;
(e)
An order directing the removal of the
employer’s name from the register referred to in section 41;
(f)
The publication of the Court’s
order.’
[21]
In relation to the compensation award of R200 000.00 which the Labour
Court awarded to him, the
appellant contends that the Labour Court
erred by not awarding him maximum compensation of 24 months as
stipulated in section 194(3)
[4]
of the LRA for an automatically unfair dismissal in terms of section
187(1)(
f
)
[5]
of the LRA.
[22]
The appellant’s claim in the Labour Court was for unfair
discrimination in terms of section
6(1) and (3) of the EEA and not
for an automatically unfair dismissal in terms of section 187(1)(
f)
of the LRA. Despite concluding that the Municipality unfairly
discriminated against the appellant in terms of section 6 of the
EEA,
the Labour Court awarded the appellant compensation of R200 000.00
for an automatically unfair dismissal. The Labour Court
erred in
doing so, as the appellant was not dismissed but rather resigned on 3
March 2015.
[23]
Notably, the Municipality did not cross-appeal against the Labour
Court’s finding that
the appellant is entitled to compensation
in the amount of R200 000.00 for an automatically unfair dismissal in
terms of section
187(1)(
f
) of the LRA. In the absence of a
cross-appeal, this finding stands.
[24]
The appellant, however, seeks to exploit the Labour Court’s
error by contending that he
is entitled to 24 months’
compensation which is the maximum compensation that the Labour Court
is allowed to award in terms
of section 194(3) of the LRA for an
automatically unfair dismissal. Notwithstanding the error in its
reasons for the order, it
is clear from the Labour Court’s
order that the award of compensation was made in terms of section
50(2) of the EEA for unfair
discrimination in terms section 6
thereof. It is a trite proposition of law that an appeal does not lie
against the reasons for
the judgment and order but rather against the
order itself.
[6]
[25]
An award of compensation by the Labour Court in terms of section
50(2)(
a
)
of the EEA is a discretionary exercise. Therefore, the power of this
Court to interfere, on appeal, with the quantum of compensation
awarded by the Labour Court is circumscribed. It can only be
interfered with on the narrow grounds that the Labour Court exercised
its discretion capriciously or upon the wrong principle, or with
bias, or without reason or that it adopted a wrong approach or
has
misconducted itself on the facts or reached a decision which could
not reasonably have been made by a decision-maker properly
directing
itself to all the relevant facts and principles. In the absence of
one of these grounds, this Court has no power to interfere
with the
amount of compensation awarded by the Labour Court in terms of
section 50(2)(
a
)
of the EEA. It is impermissible for this Court to interfere with the
award of compensation simply because it would come to a different
decision.
[7]
[26]
Unlike section 194(3) of the LRA which places an upper limit on the
amount of compensation that
may be awarded to an employee whose
dismissal is found to be automatically unfair in terms of section
187(1) of the LRA, section
50(2)(
a
) provides no limit on the
amount of compensation that the Labour Court may award to an employee
who has been unfairly discriminated
against by his or her employer.
The Labour Court ordered the Municipality to pay the appellant
compensation on account of unfairly
discriminating against him as
contemplated in section 6 of the EEA. The appellant is therefore
wrong in submitting that he was
dismissed by the Municipality for
reasons contemplated in section 187(1)(
f
) of the LRA and is
entitled to a maximum of 24 months’ remuneration in terms of
section 194(3) of the LRA.
[27]
In the circumstances, the appellant has failed to demonstrate that,
in awarding him compensation
of R200 000.00, in terms of section
50(2)(
a
) of the EEA, the Labour Court had exercised its
discretion capriciously or upon the wrong principle, or with bias or
without reason
or that it adopted the wrong approach.
[28]
Factors to be taken into account in determining the quantum of
compensation to be awarded to
an employee who is unfairly
discriminated against include the nature and seriousness of the
injuria, the circumstances in which
the infringement occurred, the
conduct of the defendant, the extent of the plaintiff’s
humiliation or distress, abuse of
the relationship of the parties,
and the attitude of the defendant after the injury or wrong has taken
place.
[8]
[29]
As is apparent from paragraphs 43.1 to 43.7 of its judgment, the
Labour Court exercised its discretion
judicially by taking into
account all the relevant factors in this matter before awarding the
appellant compensation in the amount
of R200 000.00. In the
circumstances, I consider the quantum of compensation awarded by the
Labour Court to be appropriate as well
as just and equitable. There
is accordingly no basis for this Court to interfere with the
compensation order of the Labour Court.
Damages
[30]
In relation to his damages claim, the appellant contends that the
Labour Court erred in failing
to award him his proven claim for:
(a)
Special and general damages in terms of the
EEA including past and future loss of earnings;
(b)
Contractual damages for amongst others loss
of past or future earnings;
(c)
Constitutional
damages for loss of dignity.
[31]
The appellant sought, in his statement of claim, damages in addition
to compensation for being
unfairly discriminated against by the
Municipality. However, he did not particularise the nature of the
damages nor the estimated
amount claimed in his statement of claim.
Quite unconventionally, sometime after filing his statement of claim
(the document is
undated and does contain a stamp of the Labour
Court), the appellant filed a “Schedule of Loss” claiming
damages (general
and special) in the amount of R1.984 075.00.
[9]
Thereafter on 19 July 2016, he filed an “Amended Schedule of
Loss” in which he sought damages in the amount of R13
921
687.20.
[10]
He also filed a
witness statement in which he claims to have extended the scope of
his claim to include breach of contract and
contractual and
constitutional damages.
[32]
An employee must set out the heads of damages and the amounts claimed
in his statement of claim
so as to enable the employer to reasonably
assess the quantum thereof and reply to the claim. It is
impermissible for an employee
to file a document extraneous to his
statement of claim in which he seeks to particularise his damages. It
bears noting that any
such document will not constitute proof of
damages.
[33]
Nor for that matter, is it permissible for an employee to extend the
scope of his claim by filing
a document such as a “schedule of
loss” and/or “witness statement”. A statement of
claim may only be amended
with consent of the employer or with leave
of the court.
[34]
In the circumstances, the appellant’s claim for damages, as
particularised in his “Schedule
of Loss” and “Amended
Schedule of Loss” were not properly before the Labour Court and
should not have been considered
by it in assessing the appellant’s
claim for damages.
[35]
The Labour Court accordingly erred in awarding special damages to the
appellant in the amount
of R41 881.06. However, since there is no
cross-appeal against this award, the award stands.
[36]
In view of the fact that the appellant’s damages claim for
special and general damages,
as particularised in his “Amended
Schedule of Loss”, was not properly before the Labour Court, it
is not competent
for this Court to entertain his grounds of appeal in
relation to his claim for damages. Nor is it competent for this Court
to entertain
his claim for breach of contract, contractual damages
arising therefrom and constitutional damages as the appellant has not
made
out a case for such relief in his statement of claim.
[37]
The appellants seek in his heads of argument to appeal the costs
order of the Labour Court. Since the
appeal is limited to paragraph 5
of the Labour Court’s order, there is no appeal against its
costs order.
[38]
On 19 March 2019, the appellant filed an application to adduce new
evidence in this Court in
an effort to prove his claim for future
loss of earnings as set out in his “Amended Schedule of Loss”.
Since that application
is premised on a damages claim which was not
properly before the Labour Court, it is not competent for this Court
to entertain
it.
[39]
For all these reasons, the appellant has failed to demonstrate that
he has any prospects of success
in the appeal. Accordingly, his
application for condonation and reinstatement of the appeal must
fail.
Costs
[40]
I consider this to be a matter where no costs order should be made.
Order
[41]
In the result, I make the following order:
1.
The application for condonation and
reinstatement of the appeal is dismissed.
2.
The appeal is struck from the roll.
3.
The application to adduce new evidence is
struck from the roll.
_____________________________
Kathree-Setiloane
AJA
Waglay JP and Murphy AJA
concur.
APPEARANCES:
FOR THE APPELLANT
:
Mr OH Rapoo
FOR THE
RESPONDENT
:
Mr T Mosikili
Instructed
by Majang Attorneys
[1]
Paragraph
5 of the order reads “Within 14 days of the order the
Municipality must pay the [appellant] R241 881.06 compensation”.
[2]
55
of 1998.
[3]
[3]
66
of 1995.
[4]
Section
194(3) of the LRA provides:
“
The
compensation awarded to an employee whose dismissal is automatically
unfair must be just and equitable in all the circumstances,
but not
more than the equivalent of 24 months’ remuneration calculated
at the employees’ rate of remuneration on
the date of
dismissal.
[5]
Section
187(1)(f) provides:
“
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 5 or, if the reason
for the
dismissal is –
…
(f) that the employer
unfairly discriminated against an employee, directly or indirectly,
on any arbitrary ground, including,
but limited to race, gender, sex
ethnic origin, colour, sexual orientation, age, disability,
religion, conscience, belief, political
opinion, culture, language,
marital status or family responsibility.
…”
[6]
Western
Johannesburg Rent Board and another v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A) at 355.
[7]
Kemp
t/a Centralmed v Rawlins
(2009) 30 ILJ (LAC) paras 21 and 55.
[8]
Minister
of Justice and Constitutional Development and Another v Tshishonga
(2009)
30 ILJ 1799 (LAC) para 18;
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
(2015) 36 ILJ 2989 (LAC) para 24.
[9]
This
was broken down into general damages for pain and suffering and loss
of amenities in the amount of R207 900.77, special damages
in the
amount of R104 507.44 and future loss of income in the amount of
R396 172.40.
[10]
This
was broken down into damages for violation of statutory rights in
the amount of R2 079 007.68, special and general damages
in the
amount of R560 529.09 and future loss in the amount of R11 282 150.
40.