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[2016] ZALAC 54
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Nogcantsi v Mnquma Local Municipality and Others (PA07/15) [2016] ZALAC 54; (2017) 38 ILJ 595 (LAC); [2017] 4 BLLR 358 (LAC) (22 November 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA07/15
In the matter between:
NTSHATSHELI
NOGCANTSI
Appellant
and
MNQUMA
LOCAL MUNICIPALITY
First
Respondent
MALUSI
MBULI NO
Second
Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Third
Respondent
Coram: Coppin
et
Landman JJA,
Phatshoane AJA
Heard
:
13
September 2016
Delivered
:
22
November 2016
Summary
:
Review
of
arbitration
award – employee’s confirmation of employment subject to
the outcome of the vetting exercise – the
vetting outcome
negative for the employee – employer invoking the automatic
termination clause and terminating employee’s
contract of
employment. Arbitrator finding that employee failing to prove the
existence of a dismissal – Appeal – arbitrator
seized
with a dismissal case and not with a jurisdiction issue. Arbitrator
entitled to determine the merits of the case.
Barnard
and
Mampuele
distinguished
– employee not dismissed as a result of an act by the employer
– it is the fulfilment of the resolution
condition that
triggered the termi nation clause – automatic termination
clause consonant with the LRA and not precluding
the employee to
exercise his rights. Employee freely agreed to the vetting exercise.
Appeal dismissed with costs.
JUDGMENT
COPPIN JA
[1] This is an appeal against the judgment of
the Labour Court (Van Niekerk J) in which the appellant’s
application to review
and set aside an arbitration award issued by
the second respondent (“
the arbitrator
”), acting
under the auspices of the third respondent, was dismissed with costs.
[2] The arbitrator had found that the
appellant had failed to prove a dismissal as required in terms of
section 192(1) of the Labour
Relations Act No 66 of 1995 (“
the
LRA
”) and that the appellant was, accordingly, not entitled
to the relief he claimed, namely, reinstatement and further relief.
The Labour Court confirmed the arbitrator’s award.
[3] The appellant submits that the arbitrator
was wrong and that the court
a quo
erred in dismissing his
application for review.
[4] The first respondent (“
the
municipality
”) advertised two positions of close protection
officer to the municipal manager, in the municipal manager’s
office,
in a local newspaper. On 8 January 2014, the appellant
applied for one of those posts. He was duly invited to an interview
and
interviewed.
[5] On 19 February 2016, the appellant
accepted in writing the offer that was conveyed to him by the
municipality in an appointment
letter dated 31 January 2014. In terms
of this consequent written agreement, he was appointed to the
position of close protection
officer of the municipal manager in the
municipal manager’s office for a fixed term – effective
from 3 February 2014
to 3 February 2018. In terms of clause 1.1 of
the agreement, his appointment was “
subject to
[a]
vetting and screening process
” the municipality was
conducting at the time and, in this regard, it was provided that
“
should the revealed outcomes become negative your contract
will be automatically terminated
”.
[6] Of some further relevance, the agreement
provided that it was subject to a probation period of six months from
the date of his
appointment whereafter it was to be confirmed
depending on “
satisfactory services
” being
rendered.
[7] It is common cause,
inter alia,
that by letter dated 11 March 2014, the municipal manager, on behalf
of the municipality, informed the appellant,
inter alia,
as
follows: that his appointment was subject to the vetting and
screening process conducted by the municipality and that the outcome
of that process revealed negative information about the appellant and
that, consequently, his employment was terminated with immediate
effect as contemplated in clause 1.1 of the appointment letter (i.e.
the agreement).
[8] The letter further mentioned that it was
regrettable that the appellant did not disclose the negative
information and that,
on its own, “
displays dishonesty
”.
It went on to state that the termination was effective from the date
the appellant received the letter and that the appellant
was expected
to vacate the municipal premises.
[9] It is further common cause and not
disputed that the negative information referred to was information
provided to the first
respondent by the South African Police Services
(“
SAPS
”), where the appellant was previously
employed. This was contained in a letter dated 10 March 2014 and
written by the Station
Commander of the SAPS at Tabankulu, Colonel T
E Nomfazi, to the municipality.
[10] The letter from the SAPS is headed
“
Pending cases against: Mr N Nogcantsi: Tabankulu
”.
The body of the letter reads as follows:
‘
1.
This
serves to inform your office that there is a pending case against the
above the ex-member of the SAPS which occurred on the
27/7/2012 at Mt
Frere.
Mt
Frere Cas 193/07/2012 refers, which reflects the following charges:
(i)
Defeating
the ends of justice.
(ii)
Interfering
with the police while on duty.
(iii)
Attempted
murder.
(a)
Mt
Frere Cas 228/6/2013 – GBH.
(b)
Tabankulu
Cas 23/5/2010 – Attempted murder.
(c)
Tabankulu
Cas 127/7/2010 – Attempted murder.
3.
All the above cited cases
are still pending at court.
4.
As a result of departmental case which emanated from Mt Frere Case
193/7/2013
he was found guilty and dismissed on the 26-07-2012 from
the SAPS, pending his appeal from our head office.
”
[11] It is common cause and not disputed that
these facts were not disclosed by the appellant to the first
respondent. The appellant
to date has not proffered a version
concerning the charges and information provided by Colonel Nomfazi,
although he complains that
he had no opportunity to do so. However,
that aspect will be considered in more detail later in this judgment.
[12] It is further common cause that the
appellant referred a dispute to the third respondent. Arbitration
followed an unsuccessful
conciliation. The appellant contended in his
written referral to the third respondent that he was dismissed and
that his dismissal
was both procedurally and substantively unfair. He
contended that it was procedurally unfair because he was not informed
of the
reason for his dismissal and that he was dismissed with
immediate effect. He also contended that it was substantively unfair
because
he had disclosed “
all
” that he was obliged
to disclose during the interview.
[13] The arbitration hearing took place on or
about 23 October 2014 and the arbitrator submitted his award on 4
November 2014. The
arbitrator reasoned and found,
inter alia,
as follows in his award (the appellant is referred in the award as
“
the applicant
”):
‘
42.
It is clear and not disputed by the applicant that clause 1.1 of his
contract of employment is
applicable and binding on him. This
fact is evident on the contract that has been signed between the
applicant and the respondent
and the subsequent binding
pre-arbitration minute signed by both parties.
43.
It is also not disputed that the applicant was subjected to a vetting
and screening process
and the results of that process were negative.
Clause 1.1 clearly and unambiguously states that should the results
of the
vetting and screening process be negative, the applicant’s
contract will be automatically terminated.
44.
The effect of the negative outcome of the applicant’s vetting
and screening process
rendered his contract of employment null and
void and that the applicant’s contract of employment had to
terminate automatically
through operation of law.
45.
This means that the applicant was not dismissed by the respondent but
his services had to
terminate automatically through operation of
law.
46.
The applicant therefore has failed to discharge his onus to prove
that he was dismissed
by the respondent in terms of section 192(1) of
the Act.
47.
In the circumstances I therefore make the following award:
AWARD
48.
The applicant has failed to prove an existence of dismissal by the
respondent.
49.
The applicant is therefore not entitled to any relief.
50.
I make no order as to costs.’
[14] Unhappy with the award of the
arbitrator, the appellant instituted review proceedings in the court
a quo
. In his review application, the appellant averred as
follows, under the heading “
Grounds of review
”:
‘
20.
Given that the Arbitrator in essence found that he had no
jurisdiction to entertain the
merits of my unfair dismissal claim (he
found that there was no dismissal at all), I am advised that because
jurisdiction is something
which must be established objectively the
test on review is simply whether the Arbitrator correctly found that
he was not possessed
of the necessary jurisdiction to entertain the
merits of my claim.
21.
I accordingly aver that the Arbitrator incorrectly concluded that I
was not dismissed and
that the bargaining council lacked jurisdiction
to entertain the fairness or otherwise of my dismissal.
22.
Insofar as it may be necessary to do so I aver, in the alternative,
that the Arbitrator’s
conclusion that I was not dismissed was,
in any event, a conclusion to which no reasonable decision maker
could have come.
23.
I submit that the Arbitrator incorrectly concluded that I was not
when in truth I was dismissed.
24.
I submit that having regard to the evidence placed before the
Arbitrator and in particular the
evidence by letter dated 11 March
2014 (attached hereto and marked page 22.).
25.
From the said letter it is clear that:
25.1
I was dismissed as close protection officer.
25.2
My contract was automatically terminated.
25.3
My termination was effective from receipt of this letter.
26.
Furthermore, the Arbitrator misdirected himself in not attaching any
or sufficient weight
to the stated case that my dismissal had, in
fact, taken place.
27.
From the stated case the following is apparent:
27.1
That my services were terminated (paragraph 11).
27.2
The reasons for the termination were outlined (paragraph 14).
27.3
I was dismissed without being afforded a pre-dismissal hearing
(paragraph 15).
27.4
I was dismissed without having committed any misconduct or an account
of wrongdoing
on my part (paragraph 16).
27.5
I filed an application with the bargaining council to challenge the
fairness of my
dismissal (paragraph 19).
27.6
My services were automatically and immediately terminated (paragraph
26).
28.
The Arbitrator in effect, incorrectly found that parties can contract
out of their right
to a fair dismissal.
29.
In the last regard the Arbitrator made a material error in that he
failed to consider parties’
dispute according to the stated
case.
30.
I respectfully submit that given the findings and award made by the
Arbitrator, it is incorrect
in relation thereto for the Arbitrator
not to have concluded that my dismissal was established.
31.
For the reasons set out above I submit that the award issued by the
second and third respondent
falls to be reviewed and set aside.’
[15] The court
a quo
concluded as
follows:
‘
[8]
I am not persuaded that the arbitrator was incorrect in concluding
that the applicant had
failed to establish the existence of a
dismissal. The authorities on which the applicant relies,
including SA Post Office
v Mampuele (2009) 30 ILJ 664 (LC); (2001) 31
ILJ 2051 (LAC), establish the proposition, in general terms, that
parties to an employment
contract cannot contract out of the
protection against unfair dismissal. In doing so, the courts
have relied on s 5(2)(b)
and s 5(4) of the LRA. In Mampuele,
that principle was applied in circumstances where the employment
contract provided for
an automatic termination of employment in the
event that the employee was removed, for any reason, as director of
the company.
In Mahlamu v CCMA and Others (2011) 32 ILJ 1122 (LC) the
Labour Court had reached a similar conclusion, on the same basis, in
respect
of a contract that provided for automatic termination when
the client of a labour broker (the employer) no longer required the
services of the employee for any reason.
[9]
In Mahlamu, the court qualified the approach it had established and
said the following:…
[10]
In my view the present instance is not one that falls into the
category of the unacceptable.
To provide, in the contract of
employment of a security officer, that his appointment is conditional
on a positive vetting and
that the contract will terminate
automatically should the vetting not be positive, does not serve to
deprive an employee of the
right to security of employment in the
same sense as the examples cited above. In the present
instance, the applicant agreed
to the terms of the contract, and did
not dispute that he understood that should he not be positively
vetted, his employment contract
would terminate. The vetting
process was not in the hands or control of his employer – the
letter listing the pending
charges against the applicant and the fact
of his dismissal was generated by the SAPS. The case is
therefore not one like
Mampuele, where the minister as shareholder
took a decision to remove Mampuele as a director knowing full well
that the clause
in question providing for automatic termination would
be triggered. The present instance is not unlike one where a clause
in an
employment contract provides that a person engaged as an
airline pilot must produce proof of a pilot’s licence, or a
chauffeur
proof of an unqualified driver’s licence, failing
which the contract will terminate. I am unaware of any decision to
the
effect that such provisions, where the condition is not met,
deprive the employee of the right to security of employment.
[11]
For these reasons I am not persuaded that the Commissioner’s
finding was incorrect.
The application stands to be dismissed.
Finally in relation to costs there is no reason having regard to the
interest of the law
and fairness, why costs should not follow the
result.’
[16]
The court
a
quo
seemingly accepted the parties’ agreement that the approach
that should be applied is that referred to in
S
A Rugby Players Association v S A Rugby (Pty) Ltd and Others
[1]
and
it summarised that approach as follows:
‘
The
reasonableness of the arbitrator’s award is not in issue –
the court must establish from the record whether there
existed facts
which would serve to confer jurisdiction on the arbitrator.’
The
court
a
quo
expressed
the view that this approach has been applied in at least two
subsequent decisions by this Court. In argument before us,
the
appellant’s counsel seemingly persisted with the point that the
arbitrator’s award in effect was a ruling on jurisdiction.
[17]
It is apparent from the arbitrator’s award that the arbitrator
made no reference to jurisdiction and I am not persuaded
that the
issue before him was a jurisdictional issue. In
Gcaba
v Minister of Safety and Security
(“
Gcaba
”),
[2]
which this Court followed, it was held that jurisdiction is
determined by the pleadings (properly construed) and from the
substantive
merits of the case.
[3]
In
Monare
v South African Tourism and Others
(“
Monare”),
[4]
this Court held that the referral to the Commission for Conciliation,
Mediation and Arbitration (CCMA) could be likened to pleadings.
By
analogy, the referral documents to the third respondent (i.e.
Bargaining Council) could also be regarded as pleadings in that
forum. In his referral to the third respondent, the appellant alleged
that he was unfairly dismissed. That allegation, in line
with the
decision in
Gcaba
and this Court’s decision in
Monare,
established the Bargaining Council’s jurisdiction. The
Bargaining Council was entitled to proceed and determine the matter
on its merits. There is nothing on the record to show that the
Council’s jurisdiction was specifically objected to or that
jurisdiction was specifically raised as an issue.
[18] The appellant bore the
onus
to
prove that he was dismissed. The arbitrator found that he did not
prove a dismissal and, on that basis, the arbitrator issued
his
award.
[19] In any event, the main issue for
determination before the arbitrator was whether the appellant was
dismissed and on review
the court
a quo
had to determine
whether the arbitrator’s finding in respect of that issue was
reviewable and liable to be set aside.
[20]
As regards the merits of the review, the court
a
quo
held that the arbitrator was not incorrect in concluding that the
appellant had failed to prove a dismissal. The court
a
quo
distinguished the Labour Court’s decision in
S
A Post Office v Mampuele
[5]
and this Court’s decision in that same matter,
[6]
as well as a similar decision of the Labour Court in
Mahlamu
v CCMA and Others
(“
Mahlamu”),
[7]
to the effect that in terms of sections 5(2)(b) and 5(4) of the LRA,
parties to an employment contract cannot contract out of the
protection afforded in terms of the LRA against unfair dismissal.
[21]
Having quoted a passage from
Mahlamu
where the Labour Court had identified some instances where the
occurrence of specified events had “
unacceptably
”
converted a substantive right into a conditional right, such as for
example, a defined act of misconduct or incapacity –
or the
decision of a third party that resulted (consequently) in the
termination of appointment (as had occurred in that case)
[8]
– the court
a
quo
held that what occurred in the appellant’s case did not fall
into the category of events that were unacceptable. The court
a
quo
held that the condition contained in the appellant’s employment
contract “
does
not serve to deprive an employee of the right to security of
employment in the same sense as the examples
”
cited in
Mahlamu
.
[22] The court
a quo
distinguished the
appellant’s case from the unacceptable instances,
inter
alia
, on the basis that the appellant “
agreed to the
terms of the contract and did not dispute that he understood that
should he not be positively vetted, his employment
contract would
terminate
”. Further, on the basis that “
the
vetting process was not in the hands of his employer – the
letter listing the pending charges against the
[appellant]
and
the fact of his dismissal was generated by the SAPS
”.
[23] The court
a quo
distinguished the
facts in
Mampuele
from those in the appellant’s case on
the basis that in
Mampuele,
the Minister decided to remove
Mampuele as a director of SAPU employer “
knowing full well
that the clause in question providing for automatic termination would
be triggered
”.
[24] The court
a quo
likened the
appellant’s instance to those in which a clause in the
employment contract provides “
that a person engaged as an
airline pilot must produce proof of a pilot’s licence or a
chauffeur proof of an unqualified driver’s
licence, failing
which the contract will terminate
” and remarked that the
court was “
unaware of any decision to the effect that such
provisions where the condition is not met, deprive the employee of
the right to
security of employment
”. In the light of those
rulings, the court
a quo
dismissed the appellant’s
review application but gave leave to appeal to this Court.
[25]
The appellant’s grounds of appeal, summarised, were that the
court
a
quo
erred in finding that it was reasonable for the arbitrator to find
that the appellant had not been dismissed; in finding that the
contract had terminated automatically, whereas, according to the
appellant, it had terminated as a result of a decision taken by
the
employer (i.e. the municipality) that its vetting and screening
process had yielded a “
negative
”
outcome; that the court
a
quo
erred in not applying the approach laid down by this Court in
Nulaw
v Barnard NO and Another
(“
Barnard
”)
[9]
and in
Mampuele
in particular, that even if a contract of employment is terminated by
operation of law, but the termination was as a result of
an act of
the employer, the termination would constitute a dismissal; that the
court
a
quo,
in any event, erred in not finding that a condition (or termination
clause) in the employment contract was invalid in light of
sections
2(2)(b) read with section 5(4) of the LRA, alternatively that it was
void for vagueness, since there is no objective basis
for determining
whether the outcome of the vetting was “
negative
”.
[26] The appellant alleged further that the
employer’s reliance on the automatic termination clause was
“
impermissible
” since the clause did not empower
the employer to terminate the contract for non-disclosure, or
dishonesty, or on the basis
of representations made by a third party
(in this instance the SAPS) and that the court
a quo
erred in
failing “
to appreciate
” that fact. The appellant
raised several other grounds which on closer analysis are
permutations or elaborations of the main
grounds. In essence, the
appellant complained that the outcome of the screening was determined
by the municipality and that he
was not given an opportunity to make
representations in respect of the allegations made about him by the
SAPS. Further, that the
court
a quo
misapplied the decision in
Mahlamu
. Additional grounds raised by the appellant were that
the court
a quo
erred in failing to distinguish between a
suspensive and a resolutive condition and in treating the condition
in his employment
contract as a suspensive condition, whereas it was
a resolutive condition. In this regard, the appellant alleged that
the court
a quo
had erred in equating the condition in his
contract with the condition in a contract employing a pilot or a
driver where the production
of a valid licence was required. The
appellant also attacked the court
a quo’s
decision on
the costs.
[27] In argument before us, counsel for the
appellant persisted with these grounds. The main submissions made
were, in essence,
firstly, that the court
a quo
erred in
failing to appreciate “
that the so-called automatic
termination clause was in truth a misnomer for the reason that the
clause itself envisages the municipality
making the decision
”
and, secondly, that the court
a quo
failed to appreciate that
the automatic termination clause was “
in any event
unenforceable because it constituted a transparent attempt to
contract out of the provisions of the LRA
”. Lastly, the
argument regarding costs was that this was not a case where costs
should have followed the result – particularly
if the
employer’s conduct was taken into account.
[28]
At the outset, counsel for the appellant argued (as a setting for his
main argument) that the outcome of the vetting “
was
a conclusion reached by the municipality without any input let alone
an agreement
”
from the appellant. According to this argument, the SAPS merely
provided the employer with information – and it decided
that
that information was negative and on that basis took a decision to
dismiss the appellant. In relation to the latter, the appellant’s
counsel relied on a
dictum
in
Mampuele,
in which agreement was expressed with the finding of the court of
first instance in that case, that “
dismissal
”
means any act by an employer which results “
directly
or indirectly in the termination of an employment contract
”.
[10]
[29] According to the appellant’s
counsel, the employer or the municipality “
by coming to a
resolution that the vetting and screening process had yielded a
‘negative’ outcome, must merely, in the
words of this
Honourable Court, have ‘caused the contracts to be
terminated’
”.
[30] If the decision in
Barnard
and
the aforementioned
dictum
from
Mampuele
are applied to
the facts of this case, it was not the act of the employer (the
municipality) which produced a negative vetting
result and,
consequently, caused the resolutive condition to be fulfilled,
resulting in the automatic termination of the agreement.
The negative
outcome of the vetting is constituted by the information supplied to
the municipality by the SAPS, for whom the appellant
previously
worked. The information is patently, and if objectively viewed,
negative of and concerning the appellant.
[31] It is the negative information that
caused the condition to be fulfilled and that ended the employment
relationship. Similarly,
it is not a third party (SAPS) that made the
information negative. It was inherently and objectively negative.
[32] The act referred to in
Barnard
(and
Mampuele
) must also be understood as a “
deliberate
”
or “
intentional
” act. The employer (or the third
party) in performing the act that results in the termination, must,
at least, have directed
its will to causing a dismissal. The latter
consequence must have been the object, of its act.
[33] So, on the objective facts, in light of
the decision in
Barnard
and the
dictum
in
Mampuele,
there was no dismissal – since the automatic termination was
not caused by any decision or act of the municipality or SAPS,
which
had as its objective the termination of the appellant’s
employment contract. The appellant bore the
onus
to prove a
dismissal on a balance of probabilities, and failed to discharge that
burden.
[34] The second question to be answered,
following the finding that there was no dismissal, is whether clause
1.1 (i.e. the condition
or termination clause) was valid and
enforceable in light of sections 5(2)(b) and 5(4), read with sections
85(a) and 88 of the
LRA.
[35]
The argument of the appellant’s counsel is ultimately premised
on the view that the production of a negative vetting
result was
tantamount to an allegation of misconduct in respect of which the
appellant,(in terms of the LRA and in terms of section
23(1) of the
Constitution, which grants to everyone a right to fair labour
practices) was entitled to a fair hearing. The premise
is
fallacious. It is not misconduct, because there is no breach or
alleged breach of a term of the employment agreement,
which is what
misconduct, in the final analysis, constitutes. A condition is not a
term of a contract. While a condition is an
external fact on which
the existence of an obligation depends, a term relates to the nature
of the obligation.
[11]
[36]
A conditional contract of employment is a commercial reality. The LRA
is not against such contracts. The appellant, seemingly,
agrees that
that is so, but confines the acceptability of such contracts to those
where the condition is suspensive, rather than
resolutive, as is in
this case. The main argument being that with a suspensive condition
there is no employment contract pending
the fulfilment of the
suspensive condition.
[12]
But in the case of a resolutive condition, a contract exists, but
comes to an end upon fulfilment of the resolutive condition and
the
contract is regarded as if it never existed.
[13]
[37] The appellant’s counsel
accordingly and while accepting that the employment contract of a
driver (i.e, be it a pilot
or chauffeur) may, permissibly, contain a
suspensive condition that a valid driver’s licence be produced,
submitted that
it would not be permissible for such requirement to be
contained in a resolutive condition -thus, the argument that the
court
a quo
ought to have distinguished between suspensive and
resolutive conditions in contracts of employment.
[38] In my view, that criticism of the court
a quo
is not valid. It does not matter whether the condition
is suspensive or resolutive. What does matter is whether the
condition prevents
the employee from exercising any right conferred
by the LRA, which is what section 5(2)(b), read with section 5(4) of
the LRA,
is set against. The enquiry should be whether the agreement
entered into prevents the employee from exercising any of such
rights,
and not whether the condition is suspensive, or resolutive.
[39] As in the case of a condition requiring
a person appointed, say to the position of driver, to produce a valid
driver’s
licence, the vetting condition in this case, did not
prevent the appellant from exercising any right conferred on him by
the LRA.
Therefore, the court
a quo
did not err by likening
the cases of a pilot and a chauffeur to that of the appellant.
[40]
In an effort to bolster the appellant’s argument that the
condition in the employment agreement was impermissible, the
appellant’s counsel submitted that the condition precluded him
from having a hearing. Elaborating on this argument, counsel
for the
appellant submitted that a hearing “
may
have revealed
”
[14]
the following: that the appellant did in fact disclose his past
history and that the municipality was aware of it at the time it
employed the appellant; that the reliance by the municipality on the
probity check was for an ulterior purpose in order to dismiss
the
appellant for arguing with the municipal manager; that the criminal
charges had been withdrawn at the time the appellant commenced
his
employment and that the allegations in the charge sheet were baseless
because the appellant was out of the country; that the
disciplinary
findings at the SAPS “
had
been overturned on appeal
”
or were “
trumped-up
”
or “
were
politically motivated
”
or “
were
baseless
”.
[41] The appellant’s counsel was
pointedly asked whether any of this was in fact the case and was
required to indicate where
on the record and on oath in his
application for review, or anywhere else, the appellant had given
such a version, or explained
the position in those terms. The
response was clear that those were merely speculations raised for the
first time in argument.
To date, the appellant has not explained the
position. He has given no version concerning the facts stated in SAPS
letter. In any
event, as for a hearing, or of being afforded an
opportunity to give his background and history (including the
explanation of those
matters dealt with in the SAPS letter), the
appellant chose not to avail himself of the opportunity to do so at
the time of his
interview or at any time before the vetting. Instead,
he chose not to disclose, or explain those matters. He failed to
explain
them in response to the letter form the municipality and he
similarly failed to explain them in his affidavits filed in support
of the review application, or in his replying affidavit in those
proceedings and to date has failed to explain them, choosing instead
to rely on speculations in that regard made by his counsel in
argument.
[42] Significantly, the appellant freely and
voluntarily agreed to a vetting and to an automatic termination, if
the vetting yielded
a negative result. This was material to the
appellant’s suitability for the position he was employed in. As
was pointed out
earlier, the result was patently and objectively
negative of and concerning the appellant’s suitability, which
resulted in
the automatic termination of the employment contract. The
termination was not triggered by an act of which the aim and object
(whether
primary or secondary) was to end the employment
relationship. Further, the condition in the agreement was not
impermissible in
terms of the LRA.
[43] In my view, the court
a quo
rightly came to the conclusion that there was no basis upon which to
review the award of the arbitrator and in consequently dismissing
the
review application.
[44] As regards the costs, this Court can
only interfere if it is shown that the court
a quo,
in making
the costs order, had exercised its discretion wrongly. I cannot find
accordingly. The court
a quo
took into account all the
relevant facts, the law and fairness and concluded that costs should
follow the result.
[45] Regarding the costs of the appeal, the
first respondent’s counsel has submitted that the appeal should
be dismissed with
costs, including the costs consequent upon the
employment of two counsel. I am not convinced that two counsel were
required. Taking
into account the facts, law and fairness including
the appellant’s gratuitous attack on the outcome of the vetting
–
without disclosing his version concerning his employment
history and the allegations made by SAPS in its letter – there
is
no reason why costs should not follow the result of the appeal.
[46] In the result, the
appeal is dismissed with costs.
_____________________
P Coppin
Judge of the Labour Appeal
Court
Landman JA
et
Phatshoane AJA concur in the judgment
of Coppin JA.
APPEARANCES:
FOR THE APPELLANT:
P N Kroon SC with him M Thys
Instructed by Mbewana Attorneys
FOR THE FIRST RESPONDENT
: R P Quinn SC with
him N Simoyi
Instructed by Sonamzi&
Mkata Attorneys
[1]
(2008)
29 ILJ 2218 (LAC).
[2]
2010
(1) SA 238 (CC).
[3]
See
at 263 para 75.
[4]
(2016)
37 ILJ 394 (LAC).
[5]
(2009)
30 ILJ 664 (LC).
[6]
Reported
as
S
A Post Office v Mampuele
(2010) 31 ILJ 2051 (LAC).
[7]
(2011)
32 ILJ 1122 (LC).
[8]
In
Mahlamu,
the contract of employment provided for automatic termination when
the client of a labour broker (the employer) no longer required
the
services of the employee for any reason.
[9]
[2001]
9 BLLR (LAC); (2001) 22 ILJ 2290 (LAC).
[10]
In
Mampuele,
the court referred to
Barnard
where this Court, in considering whether the termination of
employment due to a voluntary winding-up was a dismissal, held that
the key-point in interpreting the phrase in section 186(a) of the
LRA, namely, “
an
employer has terminated the contract of employment with or without
notice
”,
is whether the employer performed any act which brought the
employment contract to an end in a manner recognised as valid
by the
law.
[11]
See
Resisto
Diary (Pty) Ltd v Auto Protection Insurance Ltd
1963 (1) SA 632
(A);
Premier
of the Free State v Firechem Free State (Pty) Ltd
2000
(4) SA 413
(SCA); L T C Harms “
Amler’s
Precedence of Pleadings
”
(LexisNexis Butterworths; 6
th
edition) 89.
[12]
See
Palm
15 (Pty) Ltd v Cotton Tail Homes (Pty) Ltd
1978 (2) SA 872 (A).
[13]
See
Faith
Hill Holdings (Pty) Ltd v Sothiros
1976 (4) SA 197
(T) at 199D; and
Amoretti
v Tuckers Land and Development Corporation (Pty) Ltd
1980 (2) SA 330 (W).
[14]
Emphasis
added.