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[2015] ZALAC 34
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ARB Electrical Wholesalers (Pty) Ltd v Hibbert (DA3/13) [2015] ZALAC 34; [2015] 11 BLLR 1081 (LAC); (2015) 36 ILJ 2989 (LAC) (21 August 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN DURBAN
Reportable
Case
no: DA3/13
In the matter between:
ARB ELECTRICAL
WHOLESALERS (PTY) LTD
Appellant
and
HIBBERT
N.D
Respondent
Judgment
delivered on: 21 August 2015
Summary
:
Claim
for automatically unfair dismissal under the LRA and for unfair
discrimination based on age under the EEA – employer
retiring
employee prior to him reaching the age of 65 – employer
contending that employee agreeing to retire at age 64 and
in any
event it has discretionary power to dismiss employees who have passed
the normal retirement age of 60 – employee not
consenting to
retire - termination of employee’s services automatically
unfair – employee entitled to compensation
for both the
automatically unfair dismissal and unfair discrimination claims and
to bring both claims in one action .
Meaning
of compensation – compensation and damages distinguished –
compensation a
solatium
- monetary relief for the humiliation employee suffered -
compensation payment for the impairment of employee’s dignity -
Proof
of loss not necessary in a claim for compensation under the LRA
- damages payment for the loss suffered as the result of a wrongful
act under the EEA–
Quantum
of compensation
under
the LRA and the EEA - court not allowed to award separate
compensation for each claim – court considering what is just
and equitable compensation for the humiliation suffered by employee
taking into account relevant factors – statutory limitation
of
compensation under the LRA and no limitation under the EEA –
Labour Court awarding 12 months compensation for both claims
–
compensation just and equitable – appeal court not interfering
with quantum of compensation – Appeal dismissed
with costs -
Cross- appeal –
employee claiming damages under the EEA – employee not proving
any loss– cross-appeal dismissed
with costs – Labour
Court’s judgment upheld.
Coram:
Waglay JP, Ndlovu and Coppin JJA
JUDGMENT
WAGLAY JP
[1]
This
is an Appeal and a Cross-Appeal against the judgment of the Labour
Court (Lagrange J) in terms of which it found the dismissal
of the
Respondent by the Appellant based on his age to constitute an
automatically unfair dismissal in terms of section 187 of
the Labour
Relations Act 66 of 1995 (“the LRA”). The Labour Court
also found the dismissal to be an act of unfair discrimination
in
terms of section 6 of the Employment Equity Act 55 of 1998 (“the
EEA”).
[2]
The
Labour Court ordered the Appellant to pay the Respondent the sum of
R420 000.00 in compensation which was equal to the remuneration
the
Respondent would have earned over a 12 month period for the
automatically unfair dismissal but dismissed Respondent’s
claim
for damages under the EEA.
[3]
To
briefly sketch the background. The Respondent was employed by the
Appellant initially for a period of 12 years from 1984 to 1996.
From
September 1996 to February 1999, the Respondent rendered services to
the Appellant through a Labour Broker. From 1 March 2002,
the
Respondent re-commenced employment with the Appellant. A month after
the Respondent commenced employment with the Appellant,
he attained
the age of 56.
[4]
At
the time of his initial employment with the Appellant, Respondent was
also a shareholder of the Appellant. It was at this time
that the
Appellant concluded an agreement with a pension fund company in terms
of which its employees could belong to a pension
fund. As the pension
fund was newly established, the then existing employees had an
election to join the fund. All new employees
would however be
compelled to be members of the pension fund. The Respondent at that
time refused to join the fund.
[5]
In
terms of the said pension fund, the retirement age for all of the
Appellant’s employees was set at age 60. When Respondent
commenced employment with the Appellant after his lengthy absence and
having turned 56, he did not join the Appellant’s provident
fund. His statement of claim gives as a reason for not joining the
fund:
‘…
because
at that stage applicant
[respondent]
turned
56 (fifty six) years of age and the period of his membership to such
a fund would have been too short to build up a reserve’
.
[1]
[6]
On
20 March 2008, the Respondent, notwithstanding the fact that he was
not a member of the pension fund, received a memorandum from
the
Appellant in which it was indicated that the Appellant was moving its
employees to a new pension fund managed by Alexander
Forbes and that
no changes would result in the terms and conditions that were
applicable to the employees. In terms of this new
pension fund, the
retirement age for all employees remained at 60 but the Appellant was
entitled to elect employees to continue
past that age but not beyond
the age of 65.
[2]
[7]
In
May 2008, the Appellant offered the Respondent to move from the
Richards Bay branch to a new branch it opened in Nelspruit. The
offer
was made because the Respondent was not performing optimally in
Richards Bay and the Respondent had indicated that he was
familiar
with Nelspruit having lived and also played rugby there. Appellant
believed that the Respondent’s experience and
familiar
surrounding will benefit it in Nelspruit while at the same time
reinvigorate the Respondent to perform optimally. The
Respondent
accepted the offer subject to an increase in remuneration. The
Respondent commenced work in Nelspruit at an increased
remuneration
and other benefits on 1 August 2008. By November 2008, it became
evident to the Appellant that Respondent’s
transfer was not
only of little benefit but was becoming a hindrance to developing the
Nelspruit branch. The Appellant then informed
the Respondent that he
would be relocated to his old work place in Richards Bay while
retaining his increased remuneration and
benefits.
[8]
Respondent
returned and commenced work at Appellant’s Richards Bay branch
on 1 February 2009. On 18 February 2009, Respondent
was informed by
letter that he would be retired 14 months hence, at the end of April
2010. In that month, Respondent would have
reached the age of 64.
There was no immediate reaction thereto in writing by the Respondent
although the Respondent had verbally
expressed his unhappiness to
Stoley, the Appellant’s director and the bearer of the news.
[9]
On
31 March 2009, the Respondent was involved in a motor vehicle
collision resulting in the Appellant’s vehicle being written
off as the damage to the vehicle was beyond economic repair. The
Appellant sought not to replace the vehicle and wished that
Respondent
use his personal vehicle and claim compensation for its
use.
[10]
On
29 April 2009, the Appellant issued Respondent with another letter
advising him that due to the stressed economic climate, his
retirement age had to be moved forward to July 2009. This was
followed up by further correspondence, meetings and discussions
between the parties resulting in the Appellant writing to the
Respondent indicating that 30 April 2010, the original date of
retirement
contained in its letter of 18 February 2009, would remain
his date of retirement and not the proposed earlier date of July
2009.
The letter also stated that this was agreed to by the
Respondent.
[11]
Respondent
denied agreeing to any retirement age, holding the view that the age
of 65 was the age at which he planned to retire.
[12]
The
Appellant and Respondent then continued with a very unhappy working
relationship until 19 February 2010 when Appellant by letter
to the
Respondent confirmed that his retirement was due at the end of April
2010 but that his last working day was 28 February
2010.
[13]
The
Respondent then referred the matter to the CCMA for conciliation and
thereafter to the Labour Court for adjudication.
[14]
At
the Labour Court, the Respondent tendered evidence to the effect that
he held the belief that the retirement age was 65 and he
had worked
towards retiring at that age. He denied that there was any agreement
that he retires at a date before he attained the
age of 65. He
testified that he was simply issued with a fiat that he was to retire
on 30 April 2010 being the month when he would
have reached the age
of 64.
[15]
The
Appellant on the other hand, tendered evidence and argument to the
effect that the reason the Respondent was not a member of
the
Appellant’s provident fund was because he took up employment
with the Appellant at the age of 56 and the retirement age
at the
Appellant was 60 and, as such, the Respondent, as he himself has
claimed, would not build up any beneficial surplus by the
time he
attained the age of 60. Furthermore, the policy of the fund provided
that the Appellant may at its discretion, retain an
employee’s
services beyond the age of 60 but not beyond the age of 65 at which
age the employee “must be retired”.
The above,
notwithstanding, the Appellant said that it and Respondent had
concluded an agreement that the Respondent would retire
on 30 April
2010, the date he was asked to leave. Appellant’s further
submitted that even if the Court was not satisfied
that an agreement
was concluded as aforesaid, the fact that the Respondent had passed
his 60
th
birthday meant that his continued employment with the Appellant was
at the Appellant’s pleasure and it could discharge the
Respondent at any time because the Respondent had reached his
retirement age. Finally and in order to prove that its action was
not
simply arbitrary, the Appellant led evidence – which was
unchallenged – that since late 2008 and early 2009 there
was
sincere dissatisfaction with Respondent’s ability to perform
his duties and although action against the Respondent was
being
considered, it was decided, having regard to the Respondent’s
history with the Appellant, his relationship with the
senior members
of staff and his age that rather than take action against the
Respondent and cause him some embarrassment at his
advanced age, the
Appellant utilises its discretion in terms of its fund policy and
retires the Respondent.
[16]
At
the heart of Appellant’s contention was that the parties had
agreed to 30 April 2010 as the retirement date and, as such,
the
issue of dismissal did not arise. The Labour Court dismissed this
contention, and correctly so, there was simply no evidence
to
substantiate this claim. The agreement was purportedly concluded
between Mr Stoley of the Appellant and the Respondent. Yet
Stoley was
unable to recall this. Respondent denied the agreement. Appellant
then went on to argue that Respondent’s failure
to respond
within a reasonable time to the letter informing him of his date of
retirement was evidence of the agreement. This argument
is also
without merit. The letter stated that the Respondent will be retired
on 30 April 2010, no more no less. The letter does
not say that the
date was agreed upon nor does it solicit any response from the
Respondent. It was, as I said earlier, a fiat issued
by the Appellant
and I see no reason why the Respondent should have reacted to it.
There was no positive duty upon the Respondent
to do so and he was
not called upon to express any view thereon.
[17]
Absent
the agreement, the Respondent had established that he was dismissed
and it was common cause that the reason for his dismissal
was his
age. If Appellant’s argument that the retirement age of all
staff was 60 is acceptable, it must be accepted with
the condition
that even if Appellant’s employees attain the age of 60, it did
not mean that they will be retired at that
age. The Appellant was
entitled in terms of its Fund’s rules to retain its employees
past the age of 60 but not beyond the
age of 65. In my view, this
demonstrates that while in terms of the fund, 60 is the retirement
age, employees could be expected
if they agreed and the Appellant so
desired, to continue in their employ but not beyond the age of 65.
The Appellant argued that
employment between the age of 60 and 65 is
at its pleasure according to the terms of the Fund. Whatever the
validity of that term,
it is not a term to which the Respondent was
bound, as he was not a member of the Fund. The fund is instructive to
establish the
retirement age applicable at the Appellant and having
regard to the rules of the Fund. I am satisfied that the retirement
age at
which the Respondent is to be retired has to be 65 as that is
the age beyond which an employee cannot be retained at the Appellant.
[18]
In
the circumstances, in doing what it did, notifying the Respondent
that he will be retired at the age of 64, the Appellant in
fact
dismissed the Respondent. There was no agreement that the Respondent
would retire at that age. While I have no problems accepting
that the
age prescribed in the Fund’s contract as being the normal
retirement age, I am satisfied that this document prescribes
the age
at which an employee must retire as 65. The added provision that the
employment for the period age 60 to 65 is at the whim
of the employer
is problematic, but it is of no consequence to the Respondent as he
is not bound by the terms of that contract.
What the Fund’s
contract does evince is that the normal retirement age at the
Appellant can be up to the age of 65.
[19]
As
the Respondent was dismissed simply because he attained the age of
64, his dismissal was, as correctly found by the court
a
quo,
an automatically unfair dismissal
as
it is one of the listed grounds in s187(1)(7) of the LRA.
[20]
In
terms of s193(1) of the LRA, the remedy that an employee whose
dismissal is found to be unfair may be entitled to reinstatement
or
re-employment or be paid compensation. Section 193(2) then goes on to
provide that the Labour Court or an arbitrator “must”
order the employer to re-instate or re-employ an employee whose
dismissal was found to be unfair unless certain exceptions set
out in
that sub-section apply or the reason for the unfair dismissal was
only a failure by the employer to follow a fair procedure.
The
primary remedy that of reinstatement or re-employment does not
include any compensation. Reinstatement implies being placed
back in
the employment from the date of dismissal and the employee is
therefore entitled to his full salary from the date of his
dismissal
to the date he recommences employment. With regard to re-employment,
this can be ordered from any date after dismissal
and a different
date ordered at which the employee must commence rendering his/her
services. Payment from the date of reinstatement
and between the
re-employment date and date of commencing employment again is not
compensation but payment of salary for unfair
dismissal. This is akin
to granting specific performance or similar relief in a contractual
dispute.
[3]
[21]
Where
a dismissed employee does not seek reinstatement or re-employment or
where reinstatement or re-employment is not an appropriate
remedy as
provided for in s193(2) of the LRA, or where only compensatory relief
is sought for a claim of unfair dismissal or an
automatically unfair
dismissal, then compensation sought and ordered in terms of the LRA
is limited in terms of s194. The limit
on compensation for a
dismissal found to be automatically unfair is what the dismissed
employee would have earned over a period
of 24 months. However,
before one sets out how to calculate what the appropriate
compensation is, it is important to consider what
is understood by
compensation under the LRA. As a starting point, compensation under
the LRA must not be confused or
conflated
with
compensation as understood in the laws of contracts or delict. As
pointed out in
Trotman
and Another v Edwick
,
[4]
‘
A
litigant who sues on contract sues to have his bargain or its
equivalent in money or in money and kind. The litigant who sues
on
delict sues to recover the loss which he had sustained because of the
wrongful conduct of another, in other words that the amount
by which
his patrimony had been diminished by such conduct should be restored
to him.’
[5]
[22]
The
compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice, may be awarded is not
aimed at
making good the patrimonial loss that s/he has suffered.
[6]
The concept of loss or patrimonial loss may play a role to evince the
impact of the wrong upon the employee and thus assists towards
the
determination of appropriate compensation, but compensation under the
LRA is a statutory compensation and must not to be confused
with a
claim for damages under the common law, or a claim for breach of
contract or a claim in delict. Hence, there is no need
for an
employee to prove any loss when seeking compensatory relief under the
LRA.
[23]
Compensatory
relief in terms of the LRA is not strictly speaking a payment for the
loss of a job or the unfair labour practice but
in fact a monetary
relief for the injured feeling and humiliation that the employee
suffered at the hands of the employer. Put
differently, it is a
payment for the impairment of the employee’s dignity. This
monetary relief is referred to as a
solatium
[7]
and it constitutes a solace to provide satisfaction to an employee
whose constitutionally protected right to fair labour practice
has
been violated.
[8]
The
solatium
must be seen as a monetary offering or pacifier to satisfy the hurt
feeling of the employee while at the same time penalising
[9]
the employer. It is not however a token amount hence the need for it
to be “just and equitable” and to this end salary
is used
as one of the tools to determine what is “just and equitable”.
[24]
The
determination of the quantum of compensation is limited to what is
“just and equitable".
[10]
The determination of what is “just and equitable”
compensation in terms of the LRA is a difficult horse to ride. There
are conflicting decisions regarding whether compensation should be
analogous to compensation for a breach of contract or for a
delictual
claim. In my view, and as I said earlier, because compensation
awarded constitutes a
solatium
for the humiliation that the employee has suffered at the hands of
the employer and not strictly a payment for a wrongful dismissal,
compensation awarded in unfair dismissal or unfair labour practice
matters is more comparable to a delictual award for non-patrimonial
loss. While a delictual action (ie action
injuriarum
)
for non-patrimonial loss is fashioned as a claim for damages, it is
no more than a claim for a
solatium
because it is not dependent upon patrimonial loss actually suffered
by the claimant. Hence, awards made under a delictual claim
for
non-patimonial loss may serve as a guide in the assessment of just
and equitable compensation under the LRA. In
Minister
of Justice & Constitutional Development v Tshishonga
(Tshishonga),
[11]
this Court in an award of
solatium
referred
to the delictual claim made under the
actio
iniuriarum
for guidance in what would constitute just and equitable compensation
for non-patrimonial loss in the context of an unfair labour
practice.
It stated that since compensation serves to rectify an attack on
one’s dignity, the relevant factors in determining
the quantum
of compensation in these cases included but were not limited to:
‘…
the
nature and seriousness of the iniuria, the circumstances in which the
infringement took place, the behaviour of the defendant
(especially
whether the motive was honourable or malicious), the extent of the
plaintiff's humiliation or distress, the abuse of
the relationship
between the parties, and the attitude of the defendant after the
iniuria had taken place…’
.
[12]
[25]
The
above
dictum
should serve as an appropriate guideline in determining what is just
and equitable compensation that can be awarded under s194(3)
of the
LRA.
[26]
The
next issue is whether the Respondent’s dismissal was also an
act of unfair discrimination as contemplated by s6 of the
EEA and if
so, is the Respondent (i) entitled to claim under both the LRA and
EEA and do so in a single action; and, (ii) entitled
to separate
remedies under both Acts for what is effectively a single wrongful
act by the employer.
[13]
[27]
There
is also no bar for an employee to claim “compensation”
for an automatically unfair dismissal based on being discriminated
against under the LRA and to claim “compensation” for
being unfairly discriminated under the EEA, and to do so in a
single
action. All evidence led in support of each of the claims will be the
same. In the circumstances, not only is it expedient
to institute one
action but a party who institutes two separate claims could, if it
seeks to lead same evidence in two separate
actions, face a costs
order for not combining the two claims in a single action.
[28]
Turning
to the entitlement to seek remedies in terms of both Acts: the
remedies provided for in terms of the LRA for an automatically
unfair
dismissal is compensation which the court finds to be “just and
equitable” but limited to maximum of what the
claimant would
have earned while in the employ of the employer for a period of 24
months.
[14]
The remedy
provided for under the EEA is also what the court finds to be “just
and equitable” but there is no statutory
limit to the amount of
compensation that the court may order the employer to pay.
[15]
[29]
Where
a dismissed employee seeks reinstatement or re-employment and is
granted that relief, that employee will still be entitled
to
“compensation” for the claim formulated under the EEA
because reinstatement or re-employment is to undo the effects
of an
unfair dismissal and has nothing to do with the discrimination
itself. However, where compensation is the relief sought for
the
unfair dismissal, then the position is entirely different because,
firstly, compensation sought under the two Acts is for a
single
wrongful conduct by the employer and secondly, the meaning ascribed
to compensation under the LRA is, in my view, the same
as would apply
to the concept of compensation under the EEA. There is in fact no
pressing need in the circumstances of the case
to differentiate
between the meanings attached to compensation in the two Acts. In so
far as an employee may have suffered a loss
as a result of being
discriminated, he is also entitled to claim damages under the EEA as
the EEA provides for an employee to claim
both compensation and
damages.
[16]
[30]
Where
claims are made both in terms of the LRA and the EEA and the court is
satisfied that the dismissal was based on unfair discrimination
as
provided for in the LRA and that the employee was unfairly
discriminated in terms of the EEA, the court must ensure that the
employer is not penalised twice for the same wrong.
[17]
In seeking to determine compensation under the LRA and the EEA, the
court must not consider awarding separate amounts as compensation
but
consider what is just and equitable compensation that the employer
should be ordered to pay the employee for the humiliation
he/she
suffered in having his/her dignity impaired. The employee’s
automatically unfair dismissal is so labelled because
it is based on
a violation of his constitutional right (in this case not to be
discriminated on the basis of his age) and his claim
under the EEA is
for exactly the same wrong that of
being
discriminated on the basis of his age
.
[18]
[31]
In
Wallace
v Du Toit
(“Wallace”)
,
[19]
the
Labour Court correctly noted the duplication of compensation where
the act of unfair discrimination under the EEA is the same
act of
discrimination on which the claim of automatically unfair dismissal
under the LRA is based. In this respect, the Labour
Court in
Wallace
made
the following observations:
‘
It seems
to me that where a solatium is claimed or awarded under the ambit of
compensation to compensate for the automatic unfairness
of the
dismissal, which in this situation embodied the unfair
discrimination, and such claim is made in addition to a claim for
damages for unfair discrimination arising out of the same facts then
there is a duplication that works unfairly against a respondent
which
a court must be careful to avoid’
.
[20]
[32]
The
Labour Court erred in
Wallace
in conflating damages with compensation. It should have referred in
the passage quoted above to “a claim for compensation”
and not “a claim for damages”.
[33]
Where
there is a single action with claims under the LRA and the EEA based
on the employee being discriminated against and the court
is
satisfied that there has been an automatically unfair dismissal and
that the employer’s action also constitutes a violation
of the
EEA, it must determine what is a just and equitable amount that the
employer should be ordered to pay as compensation. In
arriving at
this determination, the court should not consider separate
compensation under the LRA and the EEA but what is just
and equitable
for the indignity the employee has suffered. In doing this, it may
take various factors into account
inter
alia
,
as set out in
Tshishonga,
additionally, including but not limited to the position held by the
employee within the employer’s establishment, the remuneration
he earned, how reprehensible and offensive was the employer’s
conduct, how if at all did it affect the employee and what
motivated
the wrongful conduct by the employer to act as it did etc.
[21]
If the claim is under the LRA only, the court must, if the amount
determined by the court to be just and equitable exceeds the
threshold set in s194(3) of the LRA, reduce the amount of
compensation to bring it within the limitation provided in s194(3).
The amount will not have to be reduced though if, like in this
matter, the claim is brought under both the LRA and the EEA because
there is no limit prescribed to the amount of compensation that can
be awarded under the EEA. The importance of this is that the
employee’s right to claim under both the EEA and the LRA is
recognised and given effect to while at the same time the employer
is
not being penalised twice for the same wrong as a single
determination is made as to what is just and equitable compensation
for the single wrongful conduct.
[34]
Turning
then to what is just an equitable compensation, the Labour Court
determined that compensation should amount to R420 000.00
which is
what the Respondent would have earned over a 12 month period in the
Appellant’s employ. As the Labour Court exercised
a discretion
in determining “just and equitable” compensation, it is
not open to this Court to interfere in the exercise
of that
discretion unless the discretion was not properly exercised. The
factors that play a role in determining fair compensation
are
therefore of relevance.
[35]
In
this matter firstly, the Respondent was asked to leave one year
before he attained his retirement age having worked there on
the last
occasion for nine years. While the Respondent persists that he
expected to retire at age 65, this is difficult to tie-in
with his
averment that he did not want to be a member of the pension fund
because the period of membership from the date he commenced
his
employment (at age 56) to his retirement (at age 65) would be too
short to build any beneficial surplus. Secondly, the Respondent
was
one of the most senior members of the Appellant’s staff and the
Appellant acknowledged this. Additionally, the Appellant
always took
into account that the Respondent was an original shareholder of the
Appellant. It was in fact this acknowledgement
that works both in
favour and against the Appellant. It works in favour of the Appellant
because the Appellant was seeking what
it thought was the most
dignified way in which to end the Respondent’s employment: It
is clear from the evidence that the
Respondent was not meeting the
targets set for him or providing the service expected of him. In
order to address this, the Appellant
first decided that perhaps a
change of environment might reinvigorate the Respondent. To this end
not only did it transfer the
Respondent to Nelspruit but also met the
Respondent’s demand for an increase in remuneration to meet the
higher costs of
living associated with the move.
[36]
When
the Respondent failed to be of any benefit in Nelspruit but became an
obstacle in developing the Nelspruit branch, the Appellant
brought
the Respondent back to Richards Bay and the Respondent retained the
increased salary although costs of living would now
have reduced. On
his return to Richards Bay, Respondent continued to fail to meet the
required standard of performance and the
Appellant was faced with a
choice of counselling the Respondent. Because of Respondent’s
age and seniority, the Appellant
believed that the Respondent might
find taking that route infra dig. The Appellant’s frustration
with the Respondent also
became evident when it decided not to
replace the car damaged by the Respondent and it sought for the
Respondent to use his own
vehicle and claim the costs of use thereof.
[37]
In
the circumstances, Appellant was genuinely of the view that the early
retirement was a more dignified way of ending the Respondent’s
employment than taking corrective action against the Respondent who
was not only more senior to most of the staff and directors
in
Appellant’s employ but was one of the founding shareholders of
the Appellant. In taking this route, the Appellant erred
because our
Labour laws are very clear: the employer must deal with what is the
real issue between it and its staff and not, no
matter how honourable
the intention may be, use another untrue reason to end the employment
relationship.
[38]
Appellant’s
conduct offensive as it was to the Respondent was not intended to be
that. It did cause the Respondent in his
advanced age to feel
distressed and humiliated and that is why I say that although the
Appellant believed that he was being benevolent,
its action had the
opposite effect on the Respondent. Taking all of the above into
account and the fact that what the Respondent
sought was to continue
for a further 12 months to attain what he believed to be his
retirement age, I am of the view that the award
of 12 months’
salary as compensation amounting to a substantial sum of R420 000.00
is not unreasonable, though I might have
been a little less generous.
This amount thus constitutes the total compensation that the
Respondent is awarded both in terms of
the LRA and EEA for the
discrimination he suffered at the hands of the employer, the
Appellant.
[39]
Turning
then to the Respondent’s claim for damages under s50(2)(b) of
the EEA. In this respect, the Labour Court was of the
view that it
was not prepared to allow the Respondent any damages in addition to
compensation. The Respondent sought for the Labour
Court to postpone
the matter to allow it to lead evidence in respect of the damages,
this was refused and I see no reason to interfere
with that decision.
The Respondent failed to make out a case to be granted such an
indulgence even if the Appellant did not object
to it. Furthermore,
the Respondent failed to indicate what the loss was that it had
suffered in respect of which he intended to
lead evidence. The
Respondent, in the alternative sought payment in the sum of R134
254.00 this being the amount he said that he
would lose as a result
of cashing in his retirement policy a year before it was due.
[40]
The
Respondent failed to prove that it actually suffered the loss of R
134 254.00. All that he produced were letters indicating
that that
would be the amount he would lose if he cashes his policies a year
before time. In the absence of proving that he in
fact suffered that
loss, he is not entitled to be granted that amount as damages. The
court
a
quo,
in
my view in those circumstances, correctly dismissed the claim for
damages brought under the EEA.
[41]
In
the circumstances, I make the following order:
(i)
The
appeal is dismissed with costs, and
(ii)
The
cross-appeal is dismissed with costs.
____________
Waglay
JP
I
agree
____________
Ndlovu
JA
I agree
_____________
Coppin
JA
APPEARANCES:
FOR THE APPELLANT:
Adv O A Moosa SC
Instructed
by Cox Yeats Attorneys
FOR THE RESPONDENT:
Adv M M
Poseman
Instructed
by Riaan Kruger Attorneys
[1]
Record vol 1 page
4,
third part of
paragraph 11.
[2]
In paragraph 10 of the judgment of
the court
a quo,
it is recorded that the fund made provision for retirement at age
64. The documents in the record do not say that. These documents
provide for the final retirement age of 65.
[3]
See
Equity
Aviation Services (Pty) Ltd v CCMA and Others
[2008] 12 BLLR 1129 (CC).
[4]
1951 (1) SA 443
(A).
[5]
At 449 B-C.
[6]
An employee who
has been subjected to an unfair labour practice or unfairly
dismissed and who has immediately found other better
employment
suffers no loss but may still be entitled to compensation under the
LRA.
[7]
This was first
raised in
Johnson
and Johnson (Pty) Ltd v CWIU
(1999)
20 ILJ 89 (LAC) with regard to procedurally unfair dismissals.
[8]
The LRA and the EEA in matter such as
this give effect to the fair labour practice right entrenched in the
Constitution of the
Republic of South Africa Act 108 of 1996.
[9]
We do not need to enter into the
debate on whether or not
solatium
contains a penal element suffice to say that the monetary prejudice
the employee suffers must equate to some form of a punitive
element
but not a penalty in the context of criminal and criminal procedural
laws. Compare S Vettori “The Role of Human
Dignity in the
Assessment of Fair Compensation for Unfair Dismissals”
PER/PELJ 2012 (15)4 102/231-123/231 when he says
“
The
cap on compensation for automatically unfair dismissal is double
that of “ordinary dismissal”, namely 24 months’
salary as opposed to 12 months’ salary. Perhaps this could be
construed as an intention on the part of the legislature
to
introduce a punitive element in the amount of compensation awarded
for automatically unfair dismissals since these reasons
for
dismissal seem to be morally reprehensible and repulsive to our
sense of justice.”
At 109/231.
[10]
The LRA provides that the amount of
compensation ordered must be “just and equitable”.
[11]
[
2009]
9 BLLR 862
(LAC) and the cases cited therein.
[12]
At
para
18.
[13]
In respect of the
first part, I am of the view that the court
a
quo
correctly concluded that the respondent’s dismissal was also
an unfair act of discrimination based on his age and as contemplated
in s6 of the EEA.
[14]
S
194(3).
[15]
S
50(2)
(see footnote below).
[16]
Section
50(2) of the EEA provides that:
“
If
the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any 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;…
[17]
See also
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997
(7) BCLR 851
(CC) where the court held that a party is not entitled
to claim twice in respect of a single wrongful act by a respondent.
[18]
Compare
SA
Airways (Pty) Ltd v Jansen Van Vuuren and Another
(2014)
35 ILJ 2774 (LAC) paras 48-62 for a detailed discussion of the issue
of unfair discrimination on the basis of age .
[19]
[2006] 8 BLLR 757 (LC).
[20]
At 764 C-D; para 20.
[21]
See also
SA
Airways (supra)
paras
82-84.