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[2009] ZALAC 32
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Jansen Van Vuuren v South African Airways (Pty) Ltd and Another (CA 13/07) [2009] ZALAC 32 (5 June 2009)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held at Johannesburg
Case no: CA 13/07
In the matter between
Gideon Jacobus Jansen Van Vuuren
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Appellant
and
South African Airways (PTY)LTD
...................................................
First
Respondent
Airline Pilots’ Association-South African
....................................
Second
Respondent
________________________________________________________________________
JUDGMENT
________________________________________________________________________
Jappie JA
Introduction
[1] This is an appeal with the leave of this Court
against the whole of the judgement of the Labour Court upholding an
exception
by the first respondent to the appellant’s amended
statement of claim.
[2] The appellant, Gideon Jacobus Jansen Van Vuuren is
an airline pilot. On 5 August 2005, whilst in the employ of the first
respondent,
South African Airways (Pty) Ltd, he reached the age of 60
years. On 1 September 2005 he stopped flying duty as he had reached
his
age of retirement.
[3] On 19 August 2005, the first respondent and the
second respondent, the Airline Pilots’ Association of South
Africa, concluded
a collective agreement (the agreement) extending
the retirement age of persons such as a the appellant from 60 to 63
years. The
agreement was signed on 11 November 2005. Thereafter the
appellant resumed his duties as a pilot. On 9 December 2005 he
attended
a pilot’s refresher course. This was followed by
flying simulator reactivation checks on 10 and 11 December. On 12
December
2005 the appellant operated his first flight since turning
60 years old. He thereafter continued in the employ of the first
respondent
his terms of employment being governed by the agreement.
The Pleadings
[4] On 4 July 2006 the appellant brought proceedings in
the Labour Court at Cape Town in which proceedings he sought relief
in terms
of the Employment Equity Act, Act
55
of 1998 (EEA).
In his amended statement of case the appellant sets out the following
relevant averments;
“
7 Applicants claim is one of unfair
discrimination, founded on section 6 (1) of the EEA, and one of
unfair labour practice in the
form of unfair act or omission relating
to the provision of his accumulated leave benefit.
8. Applicant is employed by SAA as an airline pilot with the rank and
title of senior captain. He currently serves as a short range
pilot.
He is currently over the age of 60.
9. Applicant contends that the SAA has unfairly discriminated against
him as an employee on the ground of his age by introducing
new terms
and conditions of employment which are unfairly discriminating to him
and fellow pilots over the age of 60.
10. On 19 August 2005 SAA and the union concluded in principle
agreement extending employees retirement ages from 60 to 63.
11. Applicant turned 60 years of age on 5 August 2005.
12. The agreement was signed on 11 November 2005, by which time
applicant had turned 60.
13. Applicant was withdrawn from flying duty as from 1 September
2005, his then retirement age. He was instructed to remain at
home
pending recall to fling duty by SAA. He accordingly remained in SAA’s
service after turning 60 and never left the service.
14. Applicant was re-deployed, after the final agreement had been
signed by SAA on 9 December to attend a SEPPT Refresher course
followed by flight Simulator Refresher Checks on 10 & 11 December
2005, and operated his flight on 12 December 2005.
15. Applicant was remunerated at his salary by SAA for the period 1
September 2005 to 9 November 2005 in the form of leave pay
which was
deducted from applicant’s accumulated leave entitlement.
Applicant was forced to use up his accumulated leave for
the period
of 1 September 2005.
16. Applicant contends that this was unfair act or omission relating
to the provision of his accumulated leave benefit. This dispute
was
referred to the CCMA for arbitration. Respondent were invited to
agree this Honourable Court hearing this dispute together
with the
unfair discrimination claim referred to herein after. First
Respondent has consented to this and Second Respondent has
not
opposed.”
[5] In paragraphs 8 to 19 of the statement of case, the
appellant summarises the relevant terms of the agreement as it
applied to
his claim. In paragraph 20 to 59 of the statement of case
he sets out certain facts and contentions in support of his claim
that
the first respondent, as against him, had contravened section
6(1) of the EEA by having committed an act/s of unfair discrimination
on the basis of his age. He further alleged that the first respondent
had committed an unfair labour practice in having utilised
a portion
of his leave pay to remunerate him for the period 1 September 2005 to
12 December 2005; a period he termed “enforced
leave”.
[ 6] The relief sought by the appellant is set out in
paragraph 67 of the statement of claim and reads as follows:
“
67.1. An order declaring the differential
remuneration policy of the Respondent to constitute unfair
discrimination prohibited by
section 6
of the
Employment Equity Act
55 of 1998
;
67.2. An order directing the Respondent to remunerate the applicant
at the same notch for short range Senior Captains which he
enjoyed
before age of 60, without any delegation in status or remuneration,
with the same full annual and general pay , with the
same allowance
increases and allowances on the appropriate Senior Captain Scale as
enjoyed by other SAA pilots of the same rank
under the age of 60.
67.3. An order directing the Respondent to make payments to the
applicant of compensation , in such amount as this Honourable Court
may deem reasonable taking into account inter alia his annual loss of
R269, 501.51 in salary;
67.4 Payment of damages in respect of the discrimination in the sum
of R100,000,00;
67.5 Interest on the compensation (that part calculated on loss of
salary) at the prescribed interest rate of 15,5% per annum from
1
st
August to date of payment;
67.6 An order declaring the forced leave taking constitute an unfair
labour practice within the meaning of
section 186(1)
(a) of the LRA.
6 7.7 An order directing the Respondent to reinstate applicant’s
accumulated leave credit for the period of enforced leave.
6 7.8 An order directing the Respondent to pay out to applicant at
full value (including general and annual increases) his accumulated
leave as at August 2005 together with interest at prescribed
interest.
67.9 Cost of Suite
67.10 Further and alternative relief.”
In the Labour Court
[7] On the 28
th
August 2006 the first
respondent delivered a Notice of Exception excepting to the appellant
statement of claim on the grounds that
it lacked averments that are
necessary to sustain the claims against the first respondent. The
essence of the exception to the
relief set out in subparagraphs, 67.1
to 67.5 of the statement of claim are summarised as follows: (a) The
first and second respondents
are bound by the terms of the agreement
both at common law and in terms of section 23 (1) (a) of the Labour
Relations Act 66 of
1995 (the LRA); (b) The agreement records the
terms that regulate the conditions of service of the appellant as
well as all other
pilots; (c) Conduct which is contrary to the terms
of the agreement would constitute a breach of the agreement as well
as breach
of the LRA.
The first respondent’s contention in the Labour
Court was that the relief sought by the appellant is in conflict with
the
terms of the collective agreement. The relief sought would be
tantamount to an order that the first respondent breach both the
terms of agreement and the provisions of the LRA. Therefore the
appellant was not entitled to such relief in the absence of an order
declaring null and void the agreement which the appellant contends to
be discriminatory alternatively, for being in contravention
of the
EEA. Further the first respondent contended that the appellant was
obliged to seek relief against the second respondent,
as the second
respondent is a party to the agreement.
[8] The basis of the second exception goes to the relief
sought in subparagraph 67.8 of the statement of claim. The essence of
this
exception can be summarised as follows: The appellant does not
have an enforceable claim for an unfair labour practice allegedly
committed during the period September to December 2005. The appellant
had reached the age of retirement prior to the conclusion
of the
agreement, his services had been terminated on 30 of August 2005 in
accordance with the provisions of section 187 (2) of
the LRA. Had it
not been for the agreement concluded between the respondents the
appellant would have retired at the age of 60.
As there are no terms
in the agreement which provides that the appellant would be employed
retrospectively, there is no enforceable
claim that arises for the
period September to December 2005.
[9] The exceptions were argued before Nel AJ on the 25
th
of April 2007. The Court
a quo
delivered an ex tempore
judgment upholding both exceptions and ordered the appellant to pay
the first and second respondents’
costs. In upholding the
exception, the Court
a quo
dismissed the argument advanced by
the appellant that it was sufficient to make out a cause of action
for the appellant to bring
his case within the frame-work of the EEA.
The Court
a quo
stated its conclusion as follows:
“
I am not in agreement with Mr Stelzner, who
appeared on behalf of the applicant, that as long as the applicant
party brings him
or herself with in the framework of EEA, and states
a case within that framework, which reflects a cause of action, that
is good
enough”.
The Court
a quo
expressed the view that the statement of claim lacked
sufficient averments to make out a cause of action because the relief
sought
appeared to be in conflict with the agreement. On this issue
the Court
a quo
stated
its reason as follows:
“
the fact of the matter is the court is
satisfied that applicant needs to indicate with sufficient
particularity in his statement
of claim what it is that he is
seeking. I am of the view that in addition what clauses of the
collective agreement struck between
the second and third respondent
are offensive, a case needs to be made out that they are severable
from the agreement.”
[10]
The Court
a
quo
granted the appellant a period of 30 days
in which to rectify the statement of case. The appellant declined to
rectify the statement
of case and sought the leave to appeal against
the whole judgment of the Labour Court.
[11] Nel AJ refused the appellant leave to appeal
against the aforesaid judgment. The appellant petitioned this Court
for leave
to appeal and it is with the leave of this Court that the
appellant now appeals against the whole of the judgment of the Court
a quo.
Appeal
[12] Before us counsel who appeared on behalf of the
appellant submitted that the judgment of the Court
a quo
did
not address the exception as pleaded by the first respondent. He
argued that the approach adopted by the Court
a quo
was to
treat the exception as if it was based on the ground that the
statement of case was vague and embarrassing. Counsel submitted
that
this was not the correct approach for the Court
a quo
to have
adopted.
[13] The first exception taken was that the statement of
case lacked averments which were necessary to sustain a cause of
action.
However, the complaint of the first respondent is that the
relief sought by the appellant impacts upon the terms of the
agreement.
This is apparent from what is set out in paragraph 7 of
the Notice of Exception which read as follows;
“
the applicant request the relief contrary
to the terms of the agreement. The relief sought would be tantamount
to the order that
the first respondent breach both the terms of the
collective agreement and the provisions of the LRA in relation to the
applicant.”
[14] Counsel for the appellant argued that all the
appellant needed to do is to make out a cause of action was for the
statement
of case to set out sufficient averments to bring the
appellant’s case within section 6 of the EEA. Counsel argued
that the
averments made in the statement of case and the relief
claimed by the appellant were consistent with the remedies available
under
the EEA.
[15] Counsel who appeared for the first respondent,
conceded that the statement of claim contained sufficient averments
to state
a case under section 6 (1) of the EEA but complained that it
contained too much additional information. Nevertheless, he argued
that the statement of case contained averments to the effect that the
terms of the agreement were discriminating and therefore,
unless the
appellant made out a case that the discriminating clauses of the
agreement were severable from the main agreement which,
he had failed
to do, the appellant is obliged to seek an order setting aside the
whole agreement which like wise he had failed
to do.
[16] Although the Rules for the Conduct of Proceedings
in the Labour Court do not expressly provide for exceptions,
exceptions are
nevertheless allowed under the rule 11(3). The rule
provides the following:
“
If a situation for which these rules do not
provide arises in proceedings or contemplated proceedings, the court
may adopt any procedure
that it deems appropriate in the
circumstances”.
[17] The procedural step taken by the first respondent
by raising the exceptions to the appellant statement of claim is akin
to
that provided for in rule 23 (1) of the Uniform Rules of Court.
That rule reads as follows:
“
Where pleading is vague and embarrassing or
lack averments which are necessary to sustain an action or defence,
as the case may
be, the opposing party may, within the period allowed
for filling any subsequent pleading, deliver an exception thereto and
may
set it down for hearing in terms of paragraph (f) of subrule 5 of
rule (6):…”.
[18] As the first respondent elected the grounds upon
which he attacks the statement of claim, it is not open to it to
contend that
the exception should be upheld on an entirely different
ground. The ground of the first respondent’s exception is
stated
as follows;
“
Take notice that the first respondent
except to the applicant’s amended statement of claim and the
relief sought therein on
the grounds that it lacks averments that are
necessary to sustain the claims against the first respondent”.
It is on this ground that the statement of claim must be
considered. In deciding the exception the court takes the allegation
of
facts alleged in the statement of claim as true. That is to say,
if evidence proved those allegations, a cause of action alleged
in
the pleading, that particular pleading is not excipiable. A pleading
is excipiable only on the basis that no possible evidence
led on the
pleading can disclose a cause of action. In this regard see
SA
Defence and Aid Fund v Minister of Justice
1967
(1) SA 31
(C ) at 37 H.
[19] In the statement of claim the appellant alleges in
paragraph 6 :
“
Applicant’s claim is one of unfair
discrimination founded on section 6 (1) of the EEA.”
This section of the Act reads as follows:
“
6 Prohibition of unfair discrimination-(1)
No person may unfairly discriminate, directly or indirectly, against
an employee, in
any employment policy or practice, in one or more
grounds including race, gender, sex, pregnancy, marital status,
family responsibility,
ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
beliefs, political opinion,
culture ,language and birth.”
[20] As the appellant’s claim is expressly based
on a contravention of the aforesaid section of the EEA, all he needs
do is
to plead his case so that it falls within framework of the
section. In
Funds Trust (Pty) Ltd (In Liquidation) v Van Deventer
1997(1) SA 710 at 725 H the Appellate Division approved the following
passage from a judgment by Tebbut J in the court a quo;
“
It is not necessary in a pleading ,even
where the pleader relies on a particular statute or section of a
statute, for him to refer
in terms to it provided that he formulates
his case clearly( see
Ketterringham v
City of Cape Town
1934 AD 80
at 90.)
or, put differently, it is sufficient if the facts are pleaded from
which the conclusion can be drawn that the provisions
of the statute
apply.(sees Price v Price
1946 CPD 59
;Wasmuth v Jacobs 1987(3)SA 629
9(SWA) at 634 I). In my view the plaintiff has pleaded all the
factual allegations as to justify
reliance on 53(b).”
It seems to me that the averments set out in paragraph 8
and 9 of the statement of case are sufficient to bring the provisions
of
section 6 of the EEA into operation. It is plain that the
appellant’s complaint of discrimination against him by the
first
respondent is based on his age. The relevant paragraphs reads
as follows:
“
8. Applicant is employed by SAA as an
airline pilot with the rank and title of senior captain. He currently
serves as a short range
pilot. He is currently over the age of 60.
9. Applicant contends that the SAA has unfairly discriminated against
him as an employee on the ground of his age by introducing
new terms
and conditions of employment which are unfairly discriminating to him
and to fellow pilots over the age of 60…
18. The following are material terms of the agreement:
18.1 A pilot is entitled, at his or her discretion, to retire at any
time between age 50 and 63;
18.2 Pilots reaching the age of 60 must choose whether they wish to
fly SAA on either domestic
or international routes;
18.3 If pilots opt to fly on domestic routes, they are permitted to
operate as captains (pilots in
command of their flights);
18.4 Pilots who opt to fly international, are permitted to operate
only in the position of first
officer on their flights with SFO insignia, which is a subordinate
position to that of the pilot
in command ;
18.5 Pilots over the age of 60 with the rank of captain who elect to
operate as long range first
officers need to undergo an orientation programme ;
18.6 All pilots over the age of 60 are remunerated at a lesser salary
scale, that of SC20,
irrespective of whether they fly internationally or domestically ;
18.7 Pilots over the age of 60 do not receive notch increases;
18.8 Pilots over the age of 57 are not permitted to bid for transfer
to a coastal base;
18.9 A pilot over the age of 60 cannot exercise a displacement bid
for a category at coastal base;
18.10 The agreement is to endue for three years. At the end of the 3
years period; any pilot in
service over the age of 60, reverts to his normal seniority and
notch, on condition that the
international operational limitations (referred to hereinafter ) have
been filled ;
18.11 No back pay is payable;
18.12 Any leave paid out after the age of 60 is to be paid out at
SC20 salary scale.”
Moreover, the relief sought, as set out in paragraph 67
of the statement of claim, falls within the ambit of the EEA. In my
view
the appellant has set out sufficient averments in the statement
of claim for a cause of action under section 6 (1) of the EEA.
[21] Although the statement of claim sets out in great
detail the terms of the agreement concluded between the first and the
second
respondents, these averments serve only to establish the
background of the circumstances which led to the complaint of unfair
discrimination.
The inclusion of these allegations in the statement
of claim must be regarded as no more than
plus petitio.
[22] It may well be that the relief sought by the
appellant is in apparent conflict with the terms of the agreement.
This without
more, is nevertheless insufficient to render the
statement of claim excipiable. It is for a court at trial to
pronounce upon the
relief to which the appellant may be entitled.
This is not a matter that can be decided by way of an exception. In
my view, the
Court
a quo
erred in concluding that the
statement of case lacked averments sufficient to disclose the cause
of action. In my view the first
exception ought to have been
dismissed.
[23] As the Court
a quo
had upheld the second
exception simply on the basis that the first exception had merit and
provided no further reasoning in upholding
the second exception. It
follows that if the first exception stands to be dismissed then the
second exception likewise must be
dismissed. It is therefore,
unnecessary to deal in any detail with the merits of the second
exception.
[24] For the reasons set out above I am of the view that
the appeal must be upheld. In result the following order is made:
1. The appeal is upheld.
2. The first respondent is ordered to pay the appellant
cost of appeal which are to include the cost of the application for
leave
to appeal both in the Labour Court and the petition in this
court.
3. The Order of the Court
a quo
is set aside and
replaced with the following order:
“
(a) The exceptions are
dismissed with costs.”
_____________
Jappie JA
I agree
______________
Zondo JP
I agree
____________
Davis JA
For the appellant : A J
Freund SC
Instructed by : De Klerk
& Van Gend Inc
For the respondent : W.
La Grange
Instructed by : Deneys
Reits Inc
Date of Judgment : 05
June 2009