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[2016] ZALAC 16
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Zapop (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CA21/2014) [2016] ZALAC 16; (2016) 37 ILJ 1882 (LAC); [2016] 9 BLLR 910 (LAC) (12 May 2016)
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA 21/2014
In the Matter between:
ZAPOP (PTY) LTD
Appellant
and
COMMISION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER F W
MARITZ N.O.
Second Respondent
CHRISTINE VALERIE
CUNNINGHAM
Third Respondent
Heard:
15 March 2015
Delivered:
12 May 2016
Summary: Appeal
against an order of the Labour Court refusing to review arbitrator’s
decision to hold dismissal unfair and
award 4 months compensation and
commission earned prior to dismissal and cross appeal against Labour
Court’s order to refer
certain issues about computation of
commission back to arbitration.
Interpretation of
sections 35(4) and 74(2) of the BCEA considered
On the facts as
regards the unfair dismissal dispute, held that arbitrator’s
award not unreasonable – employee dismissed
for disclosure of
confidential information to an alleged competitor and for
disparagement of her two managers in a private email
communication –
arbitrator concluding employee guilty of the alleged misconduct - in
absence of a cross appeal against the
decision of the labour court
accepting (i)the correctness of the conclusion that confidential
information had indeed been disclosed
to a person who was indeed a
competitor and (ii) the correctness of the conclusion that
disparagement of an employer in a private
communication not intended
for publication could constitute misconduct, the appeal had to be
considered on that footing, despite
reservations about such findings
–
The misconduct had
occurred years before and the arbitrator held that the disclosures to
the particular competitor, did not expose
the employer to any risk
because the alleged competitor was a sales agent who exited the
business immediately thereafter
and the specific prejudice
relied on, ie that an unfavourable employment contract with a person
recruited from the competitor/agent
was caused by the disclosure, was
unproven; these factors, and other related considerations, weighed
with the arbitrator in assessing
that dismissal was inappropriate
because it was disproportionate to the gravity of the misconduct - in
the absence of a prayer
for reinstatement, the unfairness warranted
compensation in a sum equivalent to four months remuneration –
on appeal it was
held that such a conclusion satisfied the
Sidumo
test
The employee also
claimed a substantial amount in commission earned before the date of
dismissal but which became payable at a time
after date of dismissal
- dispute of fact about whether her entitlement to payment of such
commission was forfeited upon dismissal
resolved in favour of a
preserved entitlement
The finding by the
arbitrator and the Labour Court that the CCMA had jurisdiction to
entertain commission claims as part of remuneration
as contemplated
by Section 74 (2) of the BCEA upheld
The Arbitrator had
awarded the sum agreed between the parties as being the sum of
compensation due – Labour Court holding
that section 35(4) of
the BCEA capped the sum awarded to the amount equivalent to the last
13 weeks of employment and the only
competent order had to be
calculated in terms of that formula, whereupon the issue of
computation was referred back to the CCMA
– cross appeal
against such interpretation upheld – no cap exists and an award
of an agreed sum is appropriate and
in accordance with the BCEA
Costs award -
respondent an individual litigant who had been obliged to
defend an award obtained - costs of labour court review
proceedings
and of appeal granted to respondent
Davis, Musi
et
Sutherland JJJA
JUDGMENT
SUTHERLAND JA
Introduction
[1]
This matter involves an
appeal and cross-appeal against an order of the Labour Court which,
in a review of an arbitrator’s
award, upheld it in part and set
it aside in part, and then remitted certain issues to be heard
afresh. There are several disparate
issues.
[2]
The first main question
that went to arbitration was the unfair dismissal dispute. About that
there are two controversies.
2.1.
The
first controversy is whether the third respondent, Christine
Cunningham, was guilty of conduct deserving of dismissal. The
arbitrator held that she had misconducted herself, but that dismissal
was inappropriate. The Labour Court upheld that finding as
reasonable
on the
Sidumo
[1]
test.
The appellant employer, Zapop, appeals against that part of the order
and the consequent order of compensation, equivalent
to four months
remuneration, awarded to Cunningham, in terms of section 194(4) of
the Labour Relations Act 66 of 1995 (LRA).
[2]
2.2.
The second controversy
ventilated in the review application relates to the accusations that
the arbitrator committed certain gross
irregularities; first, by
disallowing Zapop a full and proper hearing by refusing to admit
evidence of post-dismissal conduct
by Cunningham, and secondly, not
paying attention during the hearing.
[3]
The second main
question relates to the awards of certain money claims. In this
regard, four distinct controversies arose.
3.1.
The first issue is
whether the CCMA had jurisdictional competence to adjudicate about a
commission claim,
per
se
, a question
involving the interpretation of section 74(2) of the Basic Conditions
of Employment Act 75 of 1997 (BCEA). The arbitrator
held that he did
have the competence and that decision was upheld by the Labour Court.
Zapop appeals against that decision.
3.2.
The second issue is
whether, on the facts, having regard to the terms of Cunningham’s
employment agreement, which were in
dispute; had there been proof of
an entitlement to payment of commission due and payable after
termination of service? The arbitrator
held that Cunningham was
entitled to claim commission due and payable even after her
dismissal. Zapop appeals against that finding.
3.3.
The third issue was
whether the award for the payment of commission had been computed in
a manner consistent with section 35(4)
of the BCEA. The arbitrator
had made an award for the payment of the commission, supposedly
payable, in a sum as agreed between
the parties, but the Labour Court
held that the competent computation could only be in terms of what
section 35(4) required, and
held that the quantum had to be limited
to an amount equivalent to a 13 week period. The Labour Court
thereupon remitted that issue.
Cunningham cross-appeals against the
Labour Court’s decision about the proper interpretation of
section 35(4) of the BCEA
(which interpretation would have meant a
lower sum of commission would have been competent to award than what
was claimed by Cunningham
and awarded to her by the arbitrator) and
against the order of remittal.
3.4.
The fourth issue
concerns the computation of remuneration owed in respect of
Cunningham’s period of suspension pending her
disciplinary
enquiry and in respect of accrued leave pay. The arbitrator awarded
agreed sums. The Labour Court held that the computation
was uncertain
and were perhaps not in accordance with section 35(4) of the BCEA,
and remitted the issues. Cunningham cross-appeals
against that order.
[4]
The third main question
is Cunningham’s appeal against the Labour Court’s
decision not to award her costs and a prayer
for costs of the appeal.
[5]
The material hard facts
relevant to the unfair dismissal dispute are common cause. The only
seriously disputed issue of fact is
one related to the money claims,
which was about the terms of Cunningham’s agreement of
employment as regards entitlement
to be paid commission sums that
fell due for payment after termination of service, and even that
turns on an assessment of almost
entirely common cause facts. As
such, credibility of the witnesses is a peripheral matter. A lot of
opinions and grievances were
ventilated, at undue length, but the
indulgence of witnesses’ craving for catharsis is seldom of
little help to a court in
deciding matters, and this case is a
further illustration of that truism.
[6]
These disparate issues
are addressed in turn.
The Unfair Dismissal
Question
(a)
The
reasonableness of the arbitrator’s finding
[7]
The rationale for
justifying the dismissal of Cunningham was that she had wrongfully
disclosed Zapop’s confidential information
to a competitor,
that this disclosure prejudiced Zapop in bargaining over the terms of
an employment agreement with Shaelene Dewar,
and that Cunningham had
breached her duty to respect the directors, Riaan Labuschagne and
Cindy Nel.
[8]
The relevant disclosure
and the evidence of disparagement of the executives were evidenced by
e-mails extracted from Zapop’s
server. Because the arbitrator
found that the disclosure was, indeed, of confidential information,
and thus culpable, and the Labour
Court did not overturn that
finding, in the absence of a cross-appeal on that issue, this Court
is obliged to proceed on the footing
that the e-mail really did
contain confidential information, despite some serious reservations
on the facts about the correctness
of that factual finding.
Similarly, because the arbitrator’s finding that Cunningham did
culpably disparage her superiors
in an e-mail, and the Labour Court
did not overturn that finding, in the absence of a cross-appeal, this
Court is also obliged
to proceed on the footing that such a finding
is appropriate.
[9]
The critical finding by
the arbitrator that constitutes the key controversy is that, despite
these transgressions, dismissal was
inappropriate. This is the
decision that had to be tested by asking whether, on the facts, no
other arbitrator could reasonably
have come to such a conclusion. In
my view, the Labour Court’s finding that the arbitrator’s
decision met the
Sidumo
test is unassailable.
[10]
The relevant history
starts in about 2006, some four years before the dismissal. In this
account only the material facts are recounted.
[11]
Zapop is a business
known as a “Media Owner”. This label denotes it owns the
rights to advertise within shops in terms
of contracts with shop
owners, the so called “Below the line advertising”.
Labuscagne is the controlling mind of Zapop.
He and Cindy Nel are
directors. The only other Media House in South Africa, in competition
with Zapop for this kind of business,
according to the evidence, is
Primedia. Cunningham, Mary De Klerk and Dewar were long-time friends.
In 2006, they were either owners
or employees of, a business called
“Expanding Brands” (EB), which was founded in 2001 by De
Klerk and Cunningham. EB’s
business consisted of selling
products of media houses in return for a commission, and was known as
a “Media Brokerage house”;
more simply it was a
commission sales agent.
[12]
At all relevant times
until 1 January 2008, EB was an agent of Zapop, although not working
exclusively for Zapop, but nevertheless
predominantly its agent and
heavily reliant on its custom.
[13]
In 2006, Zapop was
established by Labuscagne and in September 2006 he recruited
Cunningham from EB to work in-house for it as its
national sales
manager. The significant feature of her employment agreement was that
her income was primarily from commission.
Thereafter, Dewar, working
for EB, was personally the principal human service provider to Zapop;
98 % of her earnings were derived
from Zapop work, and Zapop’s
work represented 80 % of EB’s revenue.
[14]
By late 2007, Zapop had
expanded and prospered and decided to terminate the EB agency link in
order to have the work rendered by
EB performed in-house. The effect
of this on EB was profound. The end of the relationship triggered a
strategic shift in EB’s
focus and it moved on to undertake a
different business model, focussing on human-based promotions within
shops, and was no longer
an agent for media house products.
[15]
Consequent upon Zapop’s
decision, and as part of the arrangements to terminate EB’s
services, Zapop invited Dewar to
take up a position with Zapop. Her
personal circumstances, for the reasons alluded to, were fraught with
uncertainty should she
not go over to Zapop. She agreed to do so and
concluded an agreement of employment with Zapop in December 2007 and
began work with
Zapop on 1 January 2008, the same date that the EB
relationship with Zapop terminated. She negotiated an agreement which
included,
among other terms, a veto over alteration of her commission
rates, and a retention exclusivity in favour of Dewar as regards an
important client, Unilever. These were, apparently, unusual
provisions which greatly favoured Dewar.
[16]
Dewar worked for Zapop
until July 2010, i.e. for some two and a half years, whereupon she
resigned to work for Primedia, the primary
trade rival. The move
provoked controversy about the restraint imposed on Dewar in her
employment contract. At that time, Zapop
plumbed the company server
for e-mails relating to Dewar. As a result of that exercise,
ostensibly, certain e-mails were fortuitously
discovered that had
been exchanged in November 2007 and in 2009 between Cunningham and De
Klerk, and also between De Klerk and
Dewar. These e-mails were relied
upon to charge Cunningham with misconduct in that she disclosed
confidential information that
prejudiced Zapop in concluding an
employment agreement with Dewar and wrongly disparaged the directors.
[17]
The bare facts are
these:
17.1.
Nel, the Zapop sales
director, sent an e-mail to Cunningham on 9 November. The record
reflects that Cunningham replied point for
point. The contents
address an exchange about current clients, the target budgets for the
forthcoming year, an intimation that
the commission structure was to
be changed and some veiled remarks by Nel about Cunningham’s
commitment to achieving the
targets. Cunningham’s responses
were to the effect that she did not need to be pressurised to achieve
targets as she was
committed and would appreciate clarity about
expectations of her.
17.2.
On 14 November,
Cunningham shared this exchange with De Klerk.
17.3.
On 22 November, De
Klerk e-mailed Dewar, and attached the Nel/Cunningham exchange. At
the time Dewar was engaged in settling terms
of her employment with
Zapop. De Klerk’s message is plainly a caution:
‘
Hi Shae,
Please make sure that you tie Zapop in with your comms BEFORE you
sign anything – check this email to Chrissie’.
[18]
Zapop claims to be
aggrieved at the disclosure of the client list and the budget figures
to EB. Moreover, it claims that this disclosure
which reached Dewar
resulted in a less advantageous agreement with Dewar than might
otherwise have been concluded. As such, it
is claimed that
Cunningham’s disclosure “harmed” Zapop.
[19]
The arbitrator reasoned
that Cunningham had no intention to harm Zapop, accepted her
explanation that she shared the e-mail to elicit
sympathy from a
friend about the battle she was experiencing over her work and
commission income. This was, the arbitrator found,
in effect a lapse
of judgment, but despite the potential of such a lapse causing harm,
none was actually caused. Thus, reasoned
the arbitrator, a dismissal
was inappropriate.
[20]
In my view, the outcome
is manifestly reasonable, even though the reasoning may be a bit
wobbly. The relevant considerations are
these:
20.1.
There were no
mala
fides
by Cunningham
towards Zapop.
20.2.
EB, was an agent of
Zapop at the time, and although in the arbitrator’s view a
theoretical “competitor” it was
not and could not be a
real threat to Zapop’s business. De Klerk’s evidence that
EB was in a
de facto
partnership with Zapop until 2008 when it exited the business of
selling media space for media owners in 2008 was unrebutted and
profoundly significant.
20.3.
There was no culpable
causal link between Cunningham telling De Klerk the contents of the
e-mail and De Klerk telling Dewar.
20.4.
Dewar was given the
same basic data by Nel that appeared in this e-mail.
20.5.
Dewar not a competitor.
20.6.
Zapop successfully
concluded an employment agreement with Dewar, a valuable catch; it
did not happen that no agreement could be
reached and a prospect of
employing a valuable worker, i.e. Dewar, was lost.
20.7.
The utility of the
information to cause harm in the circumstances was grossly
exaggerated.
20.8.
The event occurred two
years earlier, and since then Cunningham had performed well for
Zapop, evidencing no lack of commitment to
her employer.
20.9.
Upon the discovery of
the disclosures, Zapop did not immediately suspend Cunningham, which
suggests an ambivalence about the misconduct
that diminished
credibility of the view Zapop claimed it had taken about its degree
of seriousness.
[21]
The disparagement
complaint was about episodes in 2007 and 2009, long before the
dismissal. These remarks were disparaging of Labuschagne
and Nel’s
business acumen. The business was described as a circus and
Labuschagne was the ringmaster. In another e-mail,
Nel was accused of
unprofessionalism. These remarks were communicated by Cunningham to
De Klerk privately. She admitted the remarks
explaining that she was
sounding off to a friend at the time.
[22]
The arbitrator
apparently thought that exchange amounted to misconduct. Presumably
this was premised on the notion that deference
is due to your boss
even in private communications. The validity of such a premise has
not been challenged in these proceedings.
Whatever doubts about the
cogency of this notion, it must be accepted as valid for the present
exercise.
[23]
Nevertheless, the
arbitrator held the “disrespect” did not warrant
dismissal. In my view, the conclusion was, in the
circumstances,
reasonable. The relevant factors included:
23.1.
The remarks about Zapop
and its directors were indeed trivial.
23.2.
The remarks were not
made for public consumption.
23.3.
The remarks were made
long ago.
[24]
The upshot is that the
appeal, as regards the unfair dismissal finding, fails.
(b) The exclusion of
evidence about post-dismissal conduct question
[25]
The criticism of the
exclusion of evidence about post-dismissal conduct about Cunningham
handling a confidential document of Zapop
is without merit.
[26]
Anyone who presides
over any fact -finding enquiry must exercise care when admitting
evidence of collateral and often tangential
episodes. Relevance to
the pleaded issue is to be clinically determined. Zapop wanted to
admit evidence of Cunningham’s supposed
appetite for unearthing
Zapop’s confidential information in 2010, after she had been
fired and had gone to work for Primedia,
an undoubted competitor,
allegedly in breach of her restraint obligations. It is to be
inferred that this evidence was thought
to bolster Zapop’s case
that Cunningham had an intention to harm Zapop in 2007.
[27]
The proposition is
preposterous. The conduct of Cunningham in 2007, three years earlier,
is explained and the context is wholly
distinct from that which
prevailed after Zapop had fired her. The evidence could have had no
persuasive effect on the relevant
question which was the motive and
effect of the disclosure in 2007.
[28]
In addition, the
excluded evidence, it was argued, was pertinent to the quantum of
compensation awarded. On these facts that is
incorrect. Moreover, the
supposed breach of her restraint obligations, including alleged
confidentiality breaches, is the subject
of other legal proceedings,
and does not, on those grounds, constitute appropriate material to be
weighed in this case.
[29]
Accordingly, the
arbitrator did not act irregularly in declining to admit such
evidence.
(c)
The allegations of the arbitrator’s lack of attention during
the hearing
[30]
The other
ad
hominem
accusation
against the arbitrator involves the arbitrator not paying attention
during the hearing. In the absence of a contemporaneous
protest or
application for a recusal, such complaints are not susceptible to
ex
post facto
examination.
The Question about the
Money claims
(a)
Does an
arbitrator have jurisdiction to adjudicate commission payments?
[31]
The principal dispute
referred to arbitration was about unfair dismissal. The money claims
for pay during suspension, accrued leave
pay and commission, were not
dependent on the merits of that dispute and were put before the
arbitrator pursuant to Section 74(2)
of the BECA which provides that;
‘
If an
employee institutes proceedings for unfair dismissal, the Labour
Court or the arbitrator hearing the matter may also determine
any
claim for an amount that is owing to that employee in terms of this
Act
if the claim has not prescribed.’
(Emphasis supplied)
[32]
The jurisdictional
controversy is confined to whether the section contemplates a
commission claim. No genuine debate exists that
the commission was
not part of Cunningham’s remuneration. Section 1 of the BECA
provides:
'remuneration' means any payment in
money or in kind, or both in money and in kind, made or owing to any
person in return for that
person working for any other person,
including the State, and 'remunerate' has a corresponding meaning;
[33]
However, it is argued
by Zapop that, having regard to section 74(2), a commission payment
is not an amount “
owing
[to Cunningham] in terms of this Act”
.
This submission is premised on the cited phrase meaning that an
entitlement to an “amount” is limited to a statutorily
prescribed entitlement. The argument runs that the BCEA does not
prescribe an entitlement to “commission”, as distinct
from entitlements, e.g., to accrued leave pay and ordinary
remuneration.
[34]
This
argument overlooks the fact that it is a contravention of the BCEA to
fail to pay an employee remuneration that is due. The
legal
obligation to pay remuneration, apart from contract itself, is
contained in section 32 of the BCEA.
[3]
Section 32(4) in particular requires an employer to effect payment
not later than seven days after the completion of the period
for
which the remuneration is payable. That period, in Cunningham’s
case, is when Zapop is paid by the client and the commission
falls
due to be paid. It is common cause that the period elapsed and the
commission was due for payment, assuming there was no
binding
forfeiture provision in the contract of employment by reason of a
“policy” change or a “practice”,
issues
addressed elsewhere in this judgment. The ancillary argument that
because on termination, an employer must pay all remuneration
due to
an employee within seven days, and because the “cycle” of
events for a commission payment to fall due could
occur only after
such seven day period somehow supports the notion that commissions
could not have been contemplated by section
32 is fallacious.
Properly read, the section can be purposively interpreted to
encompass entitlements that fall due later than
a default period.
Self-evidently, the due date for payment triggers the obligation to
pay, and the duty of the employer to pay
must be fulfilled within
seven days of that date.
[35]
Revelas
J in
Schoeman
and Another v Samsung Electronics SA (Pty) Ltd,
[4]
held
in distinguishing a “benefit” from “remuneration”
that:
‘
Commission
is encapsulated by the notion of remuneration. Commission payable by
the employer forms part of the employee's salary.
It is a quid pro
quo for services rendered, just as much as a salary or a wage. It is
therefore part of the basic terms
and
conditions of employment
…
.’
[36]
This
must be correct.
[5]
The fact
that the form of the computation of remuneration is in the form of a
percentage of sales achieved, or the market value
of the harvest as
determined by the Co-|Operative, or any other variable is beside the
point. The arbitrator had jurisdiction to
adjudicate a claim for
remuneration, including the commission.
(b)
Is there proof
of entitlement to be paid commission that became payable
post-termination?
[37]
The critical question
is what the terms of Cunningham’s employment agreement provided
at the relevant times.
[38]
At the time of the
conclusion of Cunningham’s employment contract in 2007, and
retrospectively effective to 2006, no forfeiture
term was stipulated,
even orally, nor could one have been tacitly inferred from what was
agreed.
[39]
The agreement included
a clause in which policies were incorporated by reference. However,
even on the premise that the policies
were incorporated, the policy
in 2006 did not address forfeiture, and eventually only after Dewar
had resigned in 2010, and complained
about non-payment of commissions
that fell due after her termination, was a forfeiture “policy”
added and circulated
for staff to acknowledge formally. At best, this
innovation might have had prospective effect.
[40]
Zapop fell back on a
practice of forfeiture to justify non-payment. This must fail too.
During the period of Cunningham’s
employment, the evidence
shows that there was no practice of forfeiture, rather, there was a
capricious decision-making process
prevalent about post-termination
payments of commission. It is common cause that Deidre Davel was paid
her commission that fell
due for payment after her termination. It
was common cause that Tina Bailey was also paid her commission.
Afterwards, a letter
was sent to Bailey saying it was paid in error
and asking for repayment. Not fortuitously, the request for a refund
was sent only
after Dewar claimed payment and was refused. Nothing
was done to enforce a refund from Bailey. A passing reference to two
other
persons not fully and properly identified who had according to
Labuschagne not been paid their commissions post-termination was
made
but no case was advanced that they were indeed owed any commissions.
Thus the consistency necessary to found a contention
of a practice of
forfeiture is absent.
[41]
That leaves only the
notion that by unilateral decision in adding a policy of forfeiture
Cunningham was retrospectively bound, based
on the provision in her
contract that she was bound by policies. Several problems beset this
idea. First, if the mere amendment
of the policies on such a matter
bound her, why require her to accept it? Secondly, a “policy”
per se
is not self -evidently a term of employment, still less is it plain
that by a “policy” an anterior substantive right
or
entitlement which is indeed a term of the agreement, i.e.
remuneration, can be amended. Third, even it be taken for granted
that the amounts of the targets and the rates of the threshold for
commission to be earned could be unilaterally changed in respect
of
future transactions, the idea of a forfeiture of remuneration already
earned is in different class. If it did not exist to begin
with, it
needed the employee’s assent, which was withheld.
[42]
Hence, in my view, the
existence of a forfeiture term in the agreement of employment binding
Cunningham, was not proven. No bar
exists to her claim.
(c)
What does
section 35(4) of the BCEA mean?
[43]
Three amounts of pay
were claimed: the pay due during the period of suspension, the leave
pay accrued and the post-termination commission.
The sums owing were
agreed. No further evidence was required to compute these sums. The
Labour Court nevertheless remitted the
calculation of these sums
because of its view about section 35(4) of the BCEA, an issue raised
mero motu
by the Court. The text reads thus:
‘
If an
employee's remuneration or wage is calculated, either wholly or in
part, on a basis other than time or if an employee's remuneration
or
wage fluctuates significantly from period to period, any payment to
that employee in terms of this Act must be calculated by
reference to
the employee's remuneration or wage during-
(a)
the preceding 13 weeks; or
(b)
if the employee has been in employment for a shorter period, that
period.’
[44]
The Labour Court
concluded that the computation of the quantum of the award was
misconceived because
an
agreed sum
was
awarded which was not an amount that was “
owing
in terms of the BCEA”
(Paragraphs [24] - [27] of the judgment.). It was held that the
permissible amount was one calculated in terms of the section only
and a court had no competence to award an agreed amount.
[45]
This idea is incorrect.
Attributing a meaning to the section that it was to override an
agreement between litigants about a sum
that was owing thereby
obliging the court to compute independently of the litigants the sum
to be awarded would serve no legitimate
purpose envisaged by the
BCEA. The BCEA exists to secure minimum guarantees of equitable
treatment of employees. Where it is necessary
to resolve disputes of
fact about what is owing, section 35(4) provides a ready
impasse-breaker to calculate a rate, no more. A
purposive
interpretation is inconsistent with a narrow approach that results in
purposeless, bureaucratic and mechanical approach.
[46]
Accordingly, no sound
reason existed to disturb the award in respect of commission and no
need arose to remit any question.
(d)
The Leave pay
and suspension period pay
[47]
It follows from what
has been already addressed that these awards should stand and no
reason exists to remit them.
Costs of suit
[48]
The third respondent,
Cunningham, has sought her costs in respect of the review and the
appeal. In support of that prayer, she refers
to the burden of such
costs upon her as an individual, the long wait for ultimate relief,
some five years, and the fact that she
has been hauled to court twice
to defend the award granted to her. On behalf of the appellant, it
was argued that the review court’s
order of no costs be
sustained.
[49]
In my view, the case
indeed calls for a costs order in Cunningham’s favour. In
addition to the contentions advanced in support
of that prayer, the
persistence by Zapop with so weak a case, through two sets of
proceedings, warrants a costs order to properly
afford the relief due
to Cunningham. The interest that has accrued on the award of
R1,806,520.92 calculated from 30 November 2011,
will by now be
considerable, but that factor does not disturb the appropriateness of
a costs order.
The Order
[50]
I make this order:
50.1.
The appeal is
dismissed.
50.2.
The cross-appeal is
upheld.
50.3.
The Award ordering the
appellant to pay to the third respondent the sum of R1,806, 520.92,
is confirmed.
50.4.
The appellant shall pay
the third respondent interest on the sum of R1,806,520.92 at the mora
rate as prescribed from time to time,
calculated from 30 November
2011, until date of payment.
50.5.
The appellant shall
bear all the party and party costs of the third respondent relating
to both the review application and to the
appeal.
________________
Sutherland
JA
Davis
et
CJ Musi
JJA Concur in the judgment of Sutherland JA
APPEARANCES:
FOR THE APPELLANT:
Attorney Grant Marinus.
FOR THE THIRD RESPONDENT:
Adv A De Wet
Instructed by Smit Kruger
Inc.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd [2007] 12 BLLR 1907 (CC)
[2]
Section 194
(4) of the LRA provides:
‘
The
compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable in all the circumstances,
but
not more than the equivalent of 12 months remuneration’.
[3]
Section 32
provides:
Payment of remuneration
(1) An employer must pay to an
employee any remuneration that is paid in money-
(a)
in South African currency;
(b)
daily, weekly, fortnightly or monthly; and
(c)
in cash, by cheque or by direct deposit into an account designated
by the employee.
(2) Any remuneration paid in cash or
by cheque must be given to each employee-
(a)
at the workplace or at a place agreed to by the employee;
(b)
during the employee's working hours or within 15 minutes of the
commencement or
conclusion of those hours; and
(c)
in a sealed envelope which becomes the property of the employee.
(3) An employer must pay remuneration
not later than seven days after-
(a)
the completion of the period for which the remuneration is payable;
or
(b)
the termination of the contract of employment.
(4) Subsection (3) (b) does not apply
to any pension or provident fund payment to an employee that is made
in terms of the rules
of the fund.
[4]
(1997) 18
ILJ 1098 (LC) at 1102-1103.
[5]
Caution
should be exercised in reading the
Schoeman
judgment in relation to what is stated about the character of a
“benefit” as later jurisprudence has not adopted
the
stance articulated by Revelas J; see
Apollo
Tyres (Pty) Ltd v CCMA and Others
(2013) 34 ILJ 1120 (LAC).