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[2018] ZALAC 63
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Toyota SA Motors (Pty) Limited v Nzuza and Another (DA10/2017) [2018] ZALAC 63; [2020] 3 BLLR 273 (LAC); (2020) 41 ILJ 908 (LAC) (20 November 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case
no: DA10/2017
TOYOTA SA MOTORS (PTY)
LIMITED Appellant
and
KHAYELIHLE V
NZUZA First
Respondent
SISWE
X
MKHIZE Second
Respondent
Heard:
20 November 2018
Coram:
Waglay JP, Phatshoane ADJP and Kathree-Setiloane AJA
EX
TEMPORE JUDGMENT
WAGLAY
JP
[1]
This is an appeal
against the order of the Labour Court (Cele J) dismissing the
appellant’s points
in
limine
.
[2]
The respondents,
erstwhile employees of the appellant, instituted action proceedings
against the appellant in terms of s77 of the
Basic Conditions of
Employment Act (BCEA). The employees allege albeit not very
eloquently, but in term clearly understood
to mean that they were
employed by the appellant in terms of a written contract on an
indefinite basis and that it was a term of
the contract that their
employment could not be terminated without a “just and legal
reason”. The appellant, they say,
terminated their employment
because they raised concerns about the unlawful practices being
committed by the appellant and communicated
these concerns outside
the workplace. The respondents allege that they were summarily
dismissed.
[3]
The appellant, they
allege had no reason to terminate their employment and as such, it
was “unlawful and constituted a material
breach of their
contract of employment.”
[4]
The respondents seek
damages consequent upon the unlawful termination of their employment
contract.
[5]
The appellant raised
what it called two points
in
limine
against the
respondents’ claim: (i) that the statement of claim did not
disclose a cause of action and (ii) that the Labour
Court had no
jurisdiction to entertain the claim.
[6]
Dealing firstly with
the second point
in
limine
, there is
simply no basis for this objection. The allegation by the respondents
is that their contract of employment was unlawfully
terminated
because they made a disclosure which was protected in law. They do
not allege that the termination of their employment
amounts to an
automatically unfair dismissal as provided for in the Labour
Relations Act 66 of 1995 (LRA) nor are they seeking
for a
determination of an automatic unfair dismissal based on the averment
that they made a protected disclosure. For the appellant
to argue
that the respondents seek via a so called the back door to make a
claim for an automatically unfair dismissal is not only
misconceived
but is deplorable. The appellant should know better particularly when
regard is had to the fact that what the respondents
seek as relief,
is damages and not compensation as provided for in the LRA.
[7]
With regards to the
first point
in
limine
, it is
correct that the respondents appear to hang their claim on the
appellant’s failure to justify (just and legal reason)
the
termination of their contract of employment, however there is no
averment that the contract of employment requires that the
appellant
provides a just and legal reason for its termination. Reading the
statement of claim, one can conclude that what the
respondents seek
to convey is that the appellant does not rely, in dismissing them,
the ground which allow the cancellation of
the contract on notice but
relies on the respondents having committed a misconduct. That being
so respondents allege that in so
far as appellant seeks to terminate
their contract because they committed a breach (misconduct) and not
simply for no reason as
they were entitled to do on notice, the
appellant must prove their breach failing which the termination of
the contract is unlawful,
to this they add that they did not commit
any misconduct and as such the termination of their contract is
unlawful. Consequent
on the unlawful termination they seek
contractual damages and not reinstatement or compensation as provided
for in the LRA.
[8]
The above is how the
statement of claim may be seen and if that is what is intended the
respondents must say so in clear and unambiguous
terms. As the
statement of claim stands the interpretation that the appellant seeks
to give to it is not unreasonable.
[9]
In the result, I am of
the view that unless the respondents seek to amend their claim and
make averment in clear terms setting out
what the terms of the
contract were and which of the terms were breached which gave rise to
the claim, the appellant’s point
in
limine
must be
upheld.
[10]
Finally I need to add
that it appears to have become fashionable for dismissed employees to
come to the Labour Court in terms of
the BCEA and claim breach of
contract seeking either specific performance or damages. I do not
know the reason that has given rise
to this, but the risk associated
with claims made in terms of the BCEA, as in this matter before this
Court, is enormous. Firstly,
unlike in the LRA the claimant must
prove an unlawful breach and not unfairness for the termination of
the employment; next in
terms of the LRA reinstatement is generally
compulsory where a dismissal is found to be substantively unfair,
specific performance
consequent upon a breach is not, and generally
it is a discretionary relief. Furthermore, in terms of the LRA an
employee whose
dismissal is found to be unfair will receive
compensation. In an action in terms of s77 if the employee is able to
prove a breach
by the employer the only amount s/he will receive is
the loss s/he has proved to have suffered as damages. Here s/he must
also
show that they have tried to mitigate the damages etc There is
no way s/he can receive damages equal to the amount they would have
earned from the date of the breach to the date that they would
eventually have retired! This absurd prayer which is so regular
seems to take leave of the basic rule that one is awarded damages
that are proved not what you would have been paid had you remained
in
your employ till retirement.
[11]
In any event, for
reasons already stated, I make the following order:
1.
The
appeal is partially upheld;
2.
The
appellant’s point
in
limine
regarding
the absence of a course of action in respondents’ statement of
case is upheld and respondent has 15 days to amend
its statement of
case to address the complaint, failing which the appellant may
approach the Labour Court on the same papers to
have respondents’
claim dismissed;
3.
The second point
in
limine
is
dismissed;
4.
There
is no order as to costs.
______________
Waglay JP
Phatshoane ADJP and
Kathree-Setiloane concur.
APPEARANCES:
FOR THE APPELLANT:
Ms C A Nel of Macgregor
Erasmus Attorneys
FOR THE RESPONDENTS:
Adv N SV Mfeka
Instructed by M.J. Mjoli
& Associates