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[2021] ZALAC 48
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City of Joburg Property Company (SOC) Limited v Kuhlmann (JA99/20) [2021] ZALAC 48; (2022) 43 ILJ 1077 (LAC) (10 December 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 99/20
In
the matter between:
CITY
OF JOBURG PROPERTY COMPANY
(SOC)
LIMITED Appellant
and
LORRAINE
PULENG
KUHLMANN Respondent
Heard:
25
November 2021
Delivered:
10
December 2021
Coram:
Waglay
JP, Davis JA and Savage AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This
appeal concerns part of the order granted by Lagrange J on 28
February 2020, in particular where he ordered the appellant to
resume
paying the respondent’s salary from the date of the order. With
the leave of the court
a
quo,
the appellant
has approached this court on appeal against this part of the order so
granted.
The factual matrix
[2]
The
respondent was employed by the appellant as a Senior Manager:
Property Management in terms of a contract of employment of 10
May
2012. In July 2018, she took ill and was diagnosed by a psychiatrist
with a major depressive disorder together with hypertension
and
hypothyroidism. Her illness was attributed mainly to chronic
work-related problems.
[3]
She
was declared unfit to work from July 2018 until 16 January 2019 and
was on sick leave until 1 October 2018 when her sick leave
entitlement was depleted. From that date, she was also not entitled
to further annual leave and therefore remained on unpaid leave.
During this period, however, the appellant continued to make
contributions to the respondent’s medical aid and housing
allowance.
[4]
On
15 May 2019, the respondent arrived at her work premises after an
absence of some eleven months. She produced a handwritten report
from
her doctor which declared her fit to work.
[5]
The
appellant was justifiably concerned that this was not an accurate
depiction of her medical condition, given that the health
problems
that she had encountered had been attributed to work pressure. She
was then requested to produce a copy of her full medical
report which
comprehensively detailed her medical condition. A report was produced
but the appellant continued to hold the view
that it did not contain
sufficient particularity on her status and ability to resume. A
comprehensive medical report was not forthcoming
until 28 June
2019.
[6]
Thereafter
on 28 October 2019, the appellant issued a notice in terms of s 189
(3) of the Labour Relations Act 66 of 1995 (LRA)
which sought to
consult with her on the issues so documented in the notice. In short,
the appellant was of the view that the respondent’s
position as
a Senior Manager: Property Management was no longer operationally
required, however a meaningful joint consensus-seeking
process proved
impossible because the appellant continued to suffer from ill-health
and was thus remained on prolonged leave.
[7]
On
19 February 2020, the respondent referred an unfair labour practice
dispute to the South African Local Government Bargaining
Council as a
result of the appellant not paying her salary and terminating her
employment benefits.
[8]
Subsequent
thereto, on 25 February 2020, the respondent launched an urgent
application with the court
a
quo
against the
appellant and Bonitas Medical Aid Scheme in which she sought the
following relief:
‘
1.
That
The [Appellant and Bonitas Medical Aid Scheme] be ordered to:-
1.1
Reinstated
[Respondent’s] medical aid cover with Bonitas Medical Scheme:
1.2
Reinstate
[Respondent’s] salary and all benefits in terms of her contract
of employment;
1.3
Take
back [Respondent] to employment in terms of her contract of
employment.
2.
That
the [Appellant] be interdicted from effecting the unlawful
retrenchment.’
[9]
The
parties agreed to settle this dispute as follows:
‘
1 By
agreement between the parties the first respondent shall pay the
arrears and employer medical
aid contributions to the applicant’s
medical aid from 1 January 2020;
2
The
first respondent will resume paying the applicant’s housing
subsidy in terms of the first respondent’s conditions
of
service with effect from the date of this order.’
[10] The
problem which has given rise to this appeal was that the court
a
quo
, having made the settlement agreement an order of court, went
further than that contained in the settlement agreement and ordered
that the appellant resume paying the respondent’s salary from
the date of the order; that is from 28 February 2020. It is
this part
of the order that has become the subject of an appeal before this
Court.
[11] In
the court
a quo,
it appears that the reason for the part of
the order which is subject to this appeal was in the words of
Lagrange J that ‘no
good reason was advanced why the
(appellant) should not resume paying the (respondent’s) salary
whilst (respondent) remains
in its employment.’
[12] Significantly,
in the founding affidavit in support of her application, the
respondent set out the purpose
of her application, as being to order
the appellant to reinstate all employment benefits such as:
‘
1 Medical
aid scheme held with Second Respondent;
2
Housing
Subsidy
3
All
arrear unpaid salary
;
4
Monthly
salary with effect from October 2018 to date
;
5
Take
me back to my employment.’ (my emphasis)
[13] Manifestly,
the relief sought by the respondent did not extend to ordering the
appellant to resume paying
the respondent a salary from the date of
the order. This was not surprising. This form of relief would have
had the effect of ordering
the appellant to pay future earnings to
the respondent such earnings would have been paid, to the respondent
pursuant to the ongoing
discharge of her obligations in terms of an
employment agreement between the parties.
[14] There
was simply no legal basis for such an order to be granted by the
court
a quo
. To the extent that the respondent might have had
a case, which I might add certainly did not emerge from the papers
provided to
this Court for unpaid remuneration, that relief could
have been sought in terms of
s 77
of the
Basic Conditions of
Employment Act 77 of 1997
.
[15] However,
on the facts of this case, there was no demonstration of a clear
right enjoyed by the respondent
to be paid from the date of the
order, save in terms of services which the respondent might have
provided in respect of future
obligations in terms of a contract of
employment. But this clearly falls outside the relief sought or that
which on these facts
is legally competent. Hence, there was no basis
to include such relief in the order of Lagrange J of 28 February
2020.
[16] For
all these reasons, the appeal is upheld and that part of the order of
8 February 2020 in which the appellant
is required to resume paying
the respondent’s salary from the date of the order is set
aside. There is no order as to costs.
Davis JA
Waglay JP and Savage AJA
concur.
APPEARANCES:
FOR THE
APPELLANT: Mr
kent of Edward Nathan Sonnenbergs Inc
FOR THE
RESPONDENT: Adv
Sadike
Instructed
by Moima Inc