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[2014] ZALAC 75
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Botha v Commission For Conciliation Mediation and Arbitration and Others (PA5/2013) [2014] ZALAC 75; [2015] 4 BLLR 404 (LAC); (2015) 36 ILJ 1463 (LAC) (12 December 2014)
REPUBLIC OF SOUTH
AFRICA
Reportable
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Case no: PA5/2013
In
the matter between:
MELINDA
BOTHA
.................................................................................................................
Appellant
and
THE
COMMISSION FOR CONCILIATION MEDIATION
AND
ARBITRATION
..................................................................................................
First
Respondent
COMMISSIONER
FEIZAL N.O.
…......................................................................
Second
Respondent
NATIONAL
HEALTH LABORATORY
SERVICE
................................................
Third
Respondent
Heard:
26 August 2014
Delivered:
12 December 2014
Summary: Review
of arbitration award- parties entering into a fixed terms training
contract paid by the employer in terms of which
employee will be
placed by the employer into a permanent position after successful
completion of the training and being registered
as a medical
technologist - employee completing board exams and registering as
medical technologist- employee refusing to sign
permanent contract –
employer accepting repudiation of contract and claiming repayment-
employee referring unfair dismissal
dispute to the CCMA -
commissioner finding that employee not dismissed and no repudiation
of contract – award for appellant
to return to work. Labour
Court setting aside award- Appeal - evidence showing that employee
not dismissed- commissioner award
reasonable – labour Court’s
judgment set aside. Appeal dismissed.
Coram:
Waglay JP, Murphy
et
Dlodlo AJJA
JUDGMENT
DLODLO
AJA
Introduction
[1] This is an
appeal with leave of this Court against the judgment of the Labour
Court (Moshoana AJ reported as
Botha v Commission for Conciliation
Mediation and Arbitration and Others
[2013] 8 BLLR 756
(LC))
dismissing with costs the review application brought by the
Appellant. The Second Respondent found that the Appellant was
not
dismissed and that the Appellant should return to work (calling this
an order of reinstatement) and ordering the employer to
pay the
Appellant from the date she so returns.
[2] The Appellant
sought to have the award reviewed by the Labour Court seeking that
the Labour Court substitutes the award with
an order to the effect
that she was unfairly dismissed and granting her the relief of
reinstatement alternatively compensation.
Before dealing with the
issues in this appeal, the background to the dispute should be set
out in order to provide an understanding
of what led to the present
dispute.
Background
[3] The Appellant
was employed as a student technologist in Port Elizabeth branch by
the Third Respondent on a fixed term training
agreement. The
agreement constitutes a fixed term contract for the period 8 October
2008 to 31 May 2010. In terms of the said agreement,
the Appellant
was to be trained while completing the Board Examination and
thereafter to register as a Medical Technologist with
the Health
Profession Council of South Africa. Once registered, the Third
Respondent undertook to appoint the Appellant into a
permanent
position at a place of its (Third Respondent) choice. Reciprocally,
if the Appellant fails to take up the permanent appointment
and serve
the Third Respondent for no less than 18 months she will have to
repay the Third Respondent the costs of the training
in an amount
which was quantified to about R120 000.00.
[4] During March
2010, the Appellant duly completed the requirements for registration
as a Medical Technologist. Pursuant to the
training agreement, the
Third Respondent approached the Appellant to sign the permanent
employment agreement. In terms of the permanent
employment agreement,
the Appellant was placed at Mthatha. The Appellant refused to sign
the agreement without giving any reasons
for such refusal. After
requests from the Third Respondent to provide reasons for such
refusal, the Appellant on 7 March 2010,
addressed a letter to the
former indicating therein that her rights were reserved and that she
was aware that her fixed term contract
would expire on 31 May 2010.
The relevant part of the letter reads as follows:
‘…
Relocation
I refer to your insistence that I
must write a letter. My rights are reserved regarding your
insistence. I am aware of the terms
and conditions of my fixed term
contract expiring on the 31
st
May 2010. My rights are also
reserved in this regard.
[Signed]’
[5] Other
correspondence was also forwarded by the Appellant’s attorney
restating that the Appellant was aware that her fixed
term contract
was coming to an end on 31 May 2010. As the Appellant had not signed
the permanent employment agreement by 31 May
2010, the Third
Respondent issued the Appellant with a notice of termination of
employment. The letter indicated that the termination
was an “end
of contract” termination but also stated the reason for
termination to be “repudiation of the contract”.
The
appellant was also requested to return her access card. The Appellant
refused to sign the termination notice and through her
attorneys
acknowledged that her contract expired on 31 May 2010 but denied that
she had repudiated the agreement.
[6] Subsequent to
this letter, the Third Respondent wrote another letter dated 3 June
2010 requesting repayment of R120 000.00
it had paid for the
Appellant’s training on the grounds that she had refused to
accept the permanent employment offer made
to her. In the letter she
was again called upon to honour the terms of the agreement. It said
inter alia: “…
while the company cannot prevent
you from leaving, you are kindly requested to fully honour your
contract of employment.”
[7] The Appellant
nevertheless was of the view that she was dismissed and referred an
unfair dismissal dispute to the First Respondent
for conciliation and
arbitration. The Second Respondent identified two issues for
determination: (i) whether the Appellant was
dismissed by the Third
Respondent and (ii) if so, whether the dismissal was fair. In
arriving at the decision that the Appellant
was not dismissed, the
commissioner reasoned that the notice did not constitute a
termination of service as argued by the Appellant.
He further stated
that:
‘
Nowhere
on the said document does it reflect that the respondent has
terminated her services…Likewise the request by the
[third]
respondent for the [appellant] to hand in her access card, does not
mean that an inference can be drawn that her services
were
terminated. Her fixed term contract came to an end and she had to
commence work in Mthatha. You cannot use the said access
card in
Mthatha. What makes my conclusion on whether or not the applicant was
not dismissed, even stronger, is that the [third
respondent], in its
letter dated 3 June 2010, clearly requests that the applicant had to
fully honour her contract employment.
I do not know for what(sic)
reason, the [appellant] continued to rely upon the Notification
letter, which reliance was clearly
misfounded. At no stage can it be
inferred and/or implied that the [third respondent] had terminated
her contract of employment.
From above, it is my conclusion that the
[appellant] was not dismissed by the [third respondent].’
[8] The arbitrator
correctly found that there was no dismissal but a termination of a
fixed term contract through the effluxion
of the time. The
commissioner then, perhaps unnecessary, went on to deal with the
repudiation of the contract and found that the
Appellant had not
repudiated her contract, as she had no intention to do so, because
she wanted to work for the Third Respondent
but not just in Mthatha.
[9] The
commissioner’s conclusion in ordering the “re-instatement”
of the appellant was therefore influenced by
his finding that there
was no repudiation of the contract of employment. He stated that
“given that the [third respondent]
had not dismissed the
[appellant], and given that the [appellant] has not repudiated her
contract, it is my view that the contract
of employment is still
effective and binding upon the parties.” The Labour Court
upheld the commissioner’s finding.
Discussion
[10] On appeal, the
issue was formulated thus: in terms of the agreement concluded
between the Third Respondent and the Appellant,
the Appellant, having
met the requirement to be permanently appointed in April 2010, she
was automatically appointed on a permanent
basis from that time
alternatively automatically appointed as and from 1 June 2010 but the
letter (“termination notice”)
dismissed her from her
employment, hence she is entitled to a finding that she was dismissed
and the dismissal was unfair. This
argument is based on clause 3 of
the said agreement. It is instructive to note what clauses 1 to 3 of
the agreement record. These
clauses read as follows:
‘
1.
APPOINTMENT OF EMPLOYEE
1.1
With effect from 01 December 2008 until 31
May 2010 the NHLS appoints the employee as Medical Technologist
(Student), Pay Zone TB3
in the Port Elizabeth, Histopathology
Laboratory, Coastal Branch (Cost Centre 21002) reporting to Mrs Jenny
Grewar, Manager, Laboratory.
1.2
Student appointments are for a period of
eighteen (18) months. It is expected during this time that the
employee pass the relevant
Board examination.
1.3
On completion of the requirements for
registration as a Medical Technologist with the HPCSA (including
passing the Board Exam) the
employee shall automatically be appointed
in a permanent position on condition that the employee continues to
work for the NHLS
as a Medical Technologist for a further period of
eighteen (18) months following permanent appointment. The employer
reserves the
right to the placement of the employee. For the purposes
of this agreement student medical technologist training is deemed to
be
worth R125 570.00 irrespective of the time spent in training,
the sum of which shall be worked off over a full eighteen month
period (18 months). Should the employee complete the first full
twelve months of this period, the employee’s indebtedness
to
the NHLS shall be reduced to 25% of the full amount owing. Should the
employee not complete the eighteen (18 month post-registration
working requirement, the employee shall pay back to the NHLS the
amount owing in a single lump sum prior to registration. The employer
may at its discretion cancel the indebtedness of the employee, at any
time.’
[11] It is
self-evident that the agreement is a fixed term contract of
employment employing the Appellant as a student medical technologist
for the period ending 31 May 2010. At the end of that period, if the
Appellant failed to qualify as a medical technologist, the
contract
would terminate with no further obligations between the parties. On
the other hand, if the Appellant qualified, then at
the end of the
contract period, the employer was obliged to offer her a position (as
a qualified medical technologist) for not
less than 18 months at a
place of its choice and the Appellant was obliged to render her
services as a qualified medical technologist
for a period of not less
than 18 months at the place required by the Third Respondent. If the
Third Respondent failed to offer
the Appellant such a position, he
would not be entitled to claim the money expended in training the
Appellant. If the Appellant
refused the employment offered by the
Third Respondent, she would be liable to repay the liquidated amount
set out in the agreement.
[12] When the
employer offered the Appellant a permanent position in Mthatha, it
was complying with its side of the bargain. The
Appellant refused
this offer without providing any reasons for such refusal. A request
for reasons, as mentioned was met with disdainful
response that “my
rights are reserved”. What could the employer do in such
circumstances? It did not have to tell the
Appellant that her student
contract came to an end on 31 May 2010. The Appellant and her lawyer
were aware of that. Her claim that
since the agreement speaks of
automatic employment on qualifying she had in fact attained permanent
status prior to 31 May 2010
flies in the face of what was clearly
understood by all parties and more importantly in the context of the
agreement is clear:
only once the Appellant qualified as a qualified
medical technologist would the question of appointment arise, this
would take
effect after her fixed terms contract came to an end, and
this appointment was subject to the Third Respondent “placing”
her.
[13] Once the
Appellant refused to accept the offer no contract of employment came
into existence hence there can be no dismissal.
The Appellant now
seeks to argue that once she refused to accept the offer, it was
incumbent on the employer to hold an enquiry
to establish the reason
for such refusal and address the concerns that the Appellant may have
had. How is the employer to do this?
The employer knows of no reasons
why the Appellant rejected its offer. It asked for reasons which the
Appellant refused to give
and only for the first time during
arbitration proceedings did it come to light that it was because she
did not want to leave Port
Elizabeth due to her fiancé’s
work commitments. An employer cannot deal with an issue that is not
brought to its attention.
Accordingly, I see no reason why the
employer had to hold an enquiry which in any event the Appellant by
her refusal to disclose
her issue to the employer, had no intention
for the employer to deal with.
[14] In the result,
the finding by the commissioner, that the Appellant was not
dismissed, was in fact correct. There is also no
reason for the order
of reinstatement (which is a meaningless adjunct).
Order
[15] In the result I
make the following order:
(a)
The Appeal is
dismissed;
(b)
The Labour Court’s
judgment is reviewed and replaced with the following order:
“
The
review application is dismissed with costs.”
______________
Dlodlo
AJA
I agree
______________
Waglay JP
I agree
_______________
Murphy
AJA
APPEARANCES:
FOR
THE APPELLANT: Adv F Le Roux
Instructed by Theo
Potgieter of Potgieter Attorneys
FOR
THE THIRD RESPONDENT: Adv R Ram
Instructed
by T H Kamdar of Cliffe Dekker Hofmeyr Inc