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[2019] ZALAC 42
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Baise v Mianzo Asset Management (Pty) Ltd (CA8/2017) [2019] ZALAC 42; (2019) 40 ILJ 1987 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: CA8/2017
PAUL
BAISE
Appellant
and
MIANZO
ASSET MANAGEMENT (PTY) LTD
Respondent
Held:
11 September 2018
Delivered:
13 June 2019
Coram:
Phatshoane ADJP, Sutherland JA and Murphy AJA
JUDGMENT
Sutherland
JA:
Introduction
[1]
On 11 October 2013, the appellant (the applicant
a quo
) and
the respondent company, concluded an agreement in terms whereof the
applicant’s employment with the respondent ceased.
The
applicant was to be paid certain money in terms of that agreement.
[2]
Several months later, the appellant brought an application seeking an
order that the agreement be set aside as void. Ancillary relief was
sought to “appoint” the appellant as a director
of
respondent with effect from the date of termination of employment and
“appoint” the appellant as a trustee of the
respondent’s
Employees Trust. (The latter appointment is no longer sought.) The
Labour Court dismissed the application. The
appeal lies against that
dismissal. The Labour Court did not award costs to the respondent who
cross-appeals for such a costs order
in its favour.
[3]
The origin of the controversy is the allegation that the agreement
was
induced by a fraudulent misrepresentation by Tyandela, the
managing director of the respondent. The alleged misrepresentation is
that the appellant’s post was redundant because the Equity
Platform of the operation, which he managed, was to be shut down.
The
only witnesses, the appellant and Tyandela, give wholly contradictory
versions about the existence of the alleged misrepresentation.
As to
the rest of the circumstances giving rise to the breakdown of their
relationship, a common cause fact, there are no material
disputes
relevant for the purposes of the judgment.
[4]
The matter came before the Labour Court on application and owing to
the
dispute of fact about whether the misrepresentation had been
made, the matter was referred to trial. The affidavits were to stand
as pleadings.
[5]
This case is a good illustration of the questionable wisdom of
letting
affidavits stand as pleadings. A veritable muddle needs to be
unravelled.
What
is the appellant’s cause of action?
[6]
What is the nature of the claim, as pleaded? The Founding Affidavit
states
that the application is brought in terms of the provisions of
Section 158(1)(a)(iv) of the Labour Relations Act 66 of 1995 (LRA).
That section of the LRA empowers the Labour Court to make a
declaratory order within its equitable jurisdiction in terms of the
LRA. No other jurisdictional competence of the Labour Court is
invoked in this application. Accordingly, no more than that
declarator
could have been ordered. The ancillary relief which was
prayed for is incompetent and could not have been granted.
[7]
Moreover, having invoked the LRA as the source of the claim to
declare
the agreement void, what right in terms of the LRA can be
invoked to sustain that claim? The Founding Affidavit does not reveal
an answer. If the appellant meant to complain that the retrenchment
was unfair, relying on the provisions of section 189 not having
been
observed, it would first have had to refer a dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA)
for
conciliation. However, that cause of action is not invoked. The case
is not about an unfair retrenchment.
[8]
Did the appellant mean to lodge a claim in contract in respect of
which
the Labour Court in terms of section 77(3) of the Basic
Conditions of Employment 75 of 1997 (BCEA) could exercise civil
jurisdiction?
No express invocation of that power is made either.
[9]
The Labour Court, without expressly saying so, treated the case as a
contractual
dispute. By so doing, in my view, it was generous, for
otherwise the application should have been dismissed out of hand for
incoherence.
The incoherence is patent. Several questions arise. In
the absence of expressly alleging that the Labour Court was to
exercise
civil jurisdiction pursuant to section 77(3) could the
Labour Court properly do so? Is it appropriate for the Labour Court
to peel
away the husk of the allegations and deal with the
real
dispute,
as is required of commissioners of the CCMA? Can such an
approach be competent where unlike in the CCMA the parties before the
Labour Court are required to plead? More especially, if section
158(1) (a)(iv) is expressly alleged as the competence of the Labour
Court which is invoked, is it appropriate or even competent to treat
this matter as a civil claim? In my view, it seems doubtful.
After
all, civil claims are entertained because of the concurrent
jurisdiction of the Labour Court with the High Court and that
competence is not susceptible to being blended with remedies sought
under the LRA. Claims under both regimes can indeed be heard
in a
single hearing, but the claims themselves remain distinct, along with
the need to discern distinct causes of action.
[10]
On appeal, if we are to adopt the Labour Court’s stance, ie,
treat the matter as
if it is a civil claim in contract, it
nevertheless remains necessary to discern what is the cause of action
in contract that is
alleged.
[11]
The matter was articulated as the contracting parties not achieving
true consensus because
the respondent, deliberately, misrepresented a
material fact; ie the redundancy of the appellant’s post,
which, in turn,
induced the appellant to conclude an agreement which,
but for the misrepresentation, the appellant would not have
concluded.
[12]
Ordinarily,
when pleading that sort of case in a contractual dispute, such a
contention would be the foundation for a cancellation
of the
agreement and a tender of the return of any performance received by
the aggrieved party in order to re-establish the
status
quo ante.
This
would be typically an action for
restitutio
in integrum
.
[1]
This is not how the appellant chose to articulate his claim. He seeks
a declarator that the agreement is void. He does not allege
that he
has elected to
resile
for good cause. He does not unequivocally tender a return of the
respondent’s performance. That performance was the payment
of
money. The appellant does not allege that it is impossible to repay
the sums, though he alludes to a set-off of future receipts
of salary
upon reinstatement of his employment, a tender that must, therefore,
be contingent on an order of specific performance
of the initial
employment contract, a remedy which is itself discretionary.
[2]
Indeed, none of the ordinary languages of a contractual cause of
action is evident. The Labour Court noted the omission to properly
tender a return of performance, and in consequence, held that the
appellant’s case fell on that ground alone. Because of
the view
we have taken of the matter, it is unnecessary to make definitive
findings on this aspect of the case. The case is decided
on the
misrepresentation question, the true dispute between the parties.
Was
there a misrepresentation as alleged?
[13]
If the Court must decide the misrepresentation issue
per se
,
the question must be decided by a credibility finding and that in
turn is informed by an assessment of the probabilities. The
Labour
Court concluded that there was no misrepresentation that the
appellant’s post was rendered redundant and even had
there been
such a misrepresentation, that it did not induce the agreement. Why
should that finding be held to be wrong?
The
Agreement
[14]
The proper place to begin an assessment is the agreement itself. The
text of that document
says variously the following:
‘
..whereas the
operational requirements of Mianzo have changed, and whereas BAISE,
in recognition of the change in operational requirements
of Mianzo
has agreed to the termination of his services based on the
operational requirements of Mianzo….by signature hereto
Baise
agrees to his termination effective 1 September 2013 based on the
operational requirements of Mianzo….’
Later, provision is made
for payment of
inter alia
:
‘
severance pay’
of R347,000 ‘….as compensation for loss of office.’
Added to that is this:
“Mianzo undertakes to assist Baise in applying for a suitable
tax directive to enable Baise to receive
the amount … on as
tax-free a basis as possible as directed by SARS.”
Payments were to be made
over 11 months. A restraint of trade was waived.
Lastly, it is provided:
‘
By signature
hereto Baise acknowledges that he accepts the severance pay as set
out above in full and final settlement of all claims
arising out of
the termination of his services with Mianzo, whether such claims
arise in law or any other sources.’
[15]
It is
notable that there is an absence in the text of any reference to
“redundancy”
per
se
, as
a rationale. There is not even a mention of “retrenchment”,
or even to “dismissal”. Moreover, by contrast,
reference
is made copiously to a termination and a settlement as between the
parties and to “changed operational requirements”
a
deliberately vague choice of words.
[3]
If redundancy was the trigger for the “changed operational
requirements” termination, why not say so?
[16]
The document, manifestly, is the product of negotiation not
consultation. The document
contemplates an overture to SARS to treat
the termination as deserving of benign tax treatment; in effect, SARS
is asked to exercise
a discretion to determine if the agreement
qualifies the appellant for any tax- free dispensation. That
dispensation is premised
on a no-fault loss of employment.
The
“Pleadings”
[17]
What
exactly is the misrepresentation relied upon? As alluded to, the
founding affidavit constitutes the particulars of claim. The
misrepresentation is alleged to have been made on 26 September
2013.
[4]
The substance was that
the appellant’s position as sole manager of the Equity Funds
platform of the respondent’s business
was to become redundant.
[18]
In amplification, the rationale for that redundancy is alleged to
have been communicated
to the appellant as being:
‘
...the company was
not following the strategy of building its equity team as it was too
expensive an exercise”.
[19]
In further amplification, it was communicated to the appellant that
Fatima Vadwa, a Funds
administrator and an important client, was
“pulling” all her mandates from the respondent, being in
effect the total
equity business of the respondent. An e-mail from
Tyandela to appellant in this regard of 26 September stated,
inter
alia
:
‘
Contract work –
the offer is R1000, per month, for three months. With Fatima is
pulling the active Equity Fund there will
not be a need for equity
related research. (sic)This will amount to R22K pm.”
[5]
[20]
The case of the respondent in the answering affidavit sets out the
acrimony between Tyandela
and appellant. At the relevant time,
appellant was to face a disciplinary enquiry that contemplated a
dismissal. As is apparent
from the charges laid on 6 September, among
other accusations, it was alleged that Baise’s conduct had
caused an “irretrievable
breakdown” in the working
relationship with Tyandela, [p124/para 4.2] and that Baise had
insulted Vadwa so as to make her
threaten to withdraw all her work
thereby eviscerating the equity platform as she was the sole client.
[p125/para 4.3]
[21]
It is further alleged by the respondent that an agreement of
termination was negotiated
as an alternative to the disciplinary
enquiry which had been postponed three times to facilitate the
negotiations. The agreement
was allegedly reached on the basis of
“operational requirements”. The appellant’s role
was primarily a researcher
and partly an Equity platform manager.
That research function was outsourced. [record 3/195] Accordingly it
is alleged: “….as
such there would be no position for
[appellant] within Mianzo.” Nothing is alleged about a
redundancy of an Equity
Platform manager.
[22]
Furthermore, it is alleged by Tyandela, on behalf of the respondent:
‘
I also advised
[appellant] that I would rather run the risk of losing Fatima’s
[Vadwa] mandates than keep him on board.”
Moreover:
‘…
[appellant]
is clearly
incompatible with Mianzo and me.
I am advised that
both
incompatibility and the outsourcing
can form the basis of
a valid retrenchment and thus an agreement based thereon. Ultimately
this is why the operational requirements
vehicle was used.’
(emphasis supplied)
[23]
In addition to these affidavits, a pre-trial conference minute
captured the issues to be
placed before the Labour Court. The minute
is prolix. The critical portions alone are referred to. A common
cause fact was an impending
possibility of the appellant facing the
disciplinary enquiry. Paragraph [2.4] of the Minute states:
‘
One
of the issues to be inquired into was whether or not the [appellant]
by his conduct was
incompatible
with the respondent, and had,
as a result, caused an irretrievable breakdown in the relationship
between the [appellant] and the
respondent.’
(Emphasis
supplied)
[24]
In a chapter in the minute dealing with issues (of fact) in dispute,
the issues identified,
inter alia
, were:
24.1.
‘[3.7] Whether a settlement agreement was entered into which
was cast as an operational requirements
dismissal by the parties by
agreement.’
24.2.
[3.9] whether the [appellant’s] position had become redundant
as a result of the respondent’s
operational requirements.’
24.3.
[3.10] whether the settlement agreement was entered into by the
[appellant] as a result of a misrepresentation
by respondent, namely
that his position was redundant and that the company was in financial
difficulty.’
24.4.
[3.13] whether the relationship between the [appellant] and the
respondent had
irretrievably broken done
.’ (Emphasis
supplied)
24.5.
[3.20] whether [appellant] in turn was
incompatible
with the
respondent.’ (Emphasis supplied)
[25]
The chapter in the Minute on “legal issues” stated thus:
‘
[4.1] ….[was]
the [appellant] misled by a misrepresentation into signing the
settlement agreement, or whether a settlement
agreement was entered
into in recognition of the fact that the
relationship between
[appellant] and respondent had irretrievably broken down.
(Emphasis supplied)
[4.2] If the [appellant]
was misled by a misrepresentation into signing the settlement
agreement whether such agreement is
void ab intio
alternatively, what the consequences of such a finding should be.
[4.3] [if] ….the
[appellant] was misled by misrepresentation to enter the settlement
agreement (retrenchment) as a result
of misrepresentation then the
….court is required to determine the extent of relief due to
the [appellant] if any.’
[6]
The
Context of the dispute and the disparate versions about the alleged
misrepresentation
[26]
Axiomatically, the written agreement was concluded within a context
which informs the meaning
and significance of the text. That context
is the total breakdown in the working relationship between Tyandela
and the appellant.
The origin of that breakdown was the accusations
of dishonesty made by appellant of the conduct of Tyandela,
culminating in appellant
reporting the respondent to the Financial
Services Board (FSB). Although the FSB exonerated the respondent, the
episode was obviously
an embarrassment to a young emerging asset
management firm, striving to expand its business. It is unsurprising
that a spat of
that intensity destroyed their working relationship.
These events had occurred shortly before the agreement had been
reached.
[27]
The significance of the roles of the two men must be noted.
Tyandela’s role in the
respondent was as managing director. He
was also the de
a facto
majority shareholder, albeit through a
complex shareholding structure, involving a Trust. He managed
the respondent’s
platform dealing with Absolute Returns
investments. Appellant’s role was twofold, research and
managing the small Equity
platform, consisting of one client. The
appellant’s shareholder status is obscure, but it is common
cause he had a financial
stake in the respondent. The two men were
de
facto
partners in the business and owing to the fallout, they
could not carry on in business together and, despite any other
differences
in their versions of events, it is plain that the only
conversation taking place between them was about the terms of their
parting;
ie a disciplinary hearing and the risk of further litigation
or an agreed exit for the appellant.
[28]
In order to determine whose version is to be accepted about a
misrepresentation, having
regard to the probabilities, the substance
of the communications and the exchanges that led up to the agreement
need to be examined.
Many are captured in e-mails.
[29]
Appellant
joined respondent in August 2011. Two years later in August 2013, a
quarrel arose about the financial statements leading
to the report to
the FSB. On 3 September 2013, appellant was suspended pending a
disciplinary enquiry. He was formally charged
on 6 September; the
substance of the charges has already been mentioned.
[7]
[30]
On 11 September, the enquiry was convened and immediately adjourned
at appellant’s
request, allegedly to prepare. Straight away,
talks commenced on a negotiated parting.
[31]
The record of their exchanges about parting ways commences with the
e-mail of 13 September
2013 from appellant to Tyandela [9/899]. The
appellant, in the e-mail, alludes to 11 September when the enquiry
had been adjourned.
It is common cause the two men had met that day.
The appellant says in the e-mail:
‘
Have not heard
from you concerning our meeting of Wednesday to alternatively have me
as an external contractor after me
resigning/ being retrenched
from Mianzo.’ (underlining supplied)
[32]
It is a highly significant communication, alluding to the possible
outcomes as being “resignation
/retrenchment”. However,
the appellant, understandably tried as best he could to deny having
sent it. The denials are unimpressive.
The attempt to distance
himself, however, warrants an adverse inference. A Computer expert
was called to track down the e-mail
on the server which proved it had
been sent. That evidence did not, of course, prove who sent it. But
in the light of the common
cause facts, especially the subsequent
letter by respondent’s attorney also on 13 September (dealt
with hereafter), the probabilities
of a forgery are too remote to
warrant serious consideration.
[33]
This e-mail of 13 September 2013 was also the subject of debate as to
whether it proved
that the appellant first raised the option of a
retrenchment. Tyandela’s evidence is that the retrenchment
notion originated
with the appellant for self-interested and
self-evident reasons. Appellant claims the 26 September 2013
misrepresentation triggered
it. Who first recorded it in writing is
not all that significant. In my view, it is plain that the e-mail
proves that, from the
very outset of the negotiations, the options of
a departure either by way of a resignation or of a retrenchment were
in the minds
of both appellant and Tyandela. The true significance of
the e-mail is the willingness of both persons to discuss the specific
possible terms of departure. This e-mail on 13 September, alluding to
what was discussed on 11 September, is wholly contradictory
to the
appellant’s thesis that he was gobsmacked on 26 September, two
weeks later, by being told that his job had become
redundant. This
e-mail must be understood in the context of what was alleged in the
disciplinary charges of 6 September, which
invoked irretrievable
breakdown in the employment relationship and also mentioned the
threat by Vadwa to withdraw her work from
the respondent over the
appellant’s alleged rudeness. Insofar as the contemporary
correspondence offers evidence to tip the
scales one way or the
other, it is tipped, because of the probabilities, in favour of
Tyandela’s testimony on this point
that retrenchment was raised
by the appellant.
[34]
Also, on 13 September, respondent’s attorney wrote to
appellant’s attorney.
[v3/257]. That letter alluded to the
common cause settlement discussions between appellant and Tyandela on
11 September. It records
that a proposal had been put to appellant on
11 September. The terms were that he resigns and gets a three-month
consultancy for
his research work but observe the restraint of trade
agreement. It did not take up the “retrenchment” notion;
respondent
was then still pushing for a resignation.
[35]
Appellant’s attorney replied on 18 September. The counter
proposal put was that the
appellant would resign, be given a 5-year
renewable consultancy as fund manager and would abide by the
restraint. A face to face
meeting was suggested to avoid further back
and forth written exchanges. The inference is that the belief
existing that they were
within reach of a settlement.
[36]
Then on 20 September, appellant terminated his attorney’s
mandate. No explanation
was given as to why.
[37]
Tyandela and appellant met. On 23 September, appellant in an e-mail
confirmed that meeting
and asks for financial data of the respondent.
He gives a reason for wanting it – to get a valuation of his
“shares”.
He states that:
‘…
me
resigning before a finalisation of the exit benefits, consulting
services and share values is premature and inappropriate.’
[38]
On 26
September, Tyandela sends the e-mail already mentioned in relation to
the alleged misrepresentation.
[8]
[39]
Appellant responds on 30 September. [v2/p131] He reiterates that:
‘
...a resignation
would only be contemplated should agreement be reached on all the
issues….’
He also states:
‘…
it is
presumptuous to be telling Fatima [Vadwa] I am leaving.’
Appellant seeks here to
be given better information on the financial aspects of the
respondent, which were dire at the time. The
general tenor of the
e-mail is to keep the negotiations pot boiling. Notable by its
absence is any substantive response by him
to the notion of there
being no role for him any longer.
[40]
The next day, on 1 October, Tyandela diverts this trajectory by
stating the: “…without
prejudice basis” (sic) is
becoming prolonged and he switches pressure back onto appellant by
requiring him to appear on 3
October for the enquiry. However,
the talks persist, and the enquiry is again adjourned.
[41]
On 10 October, respondent’s attorney sends a draft agreement to
both appellant and
Tyandela. Notable is the allusion to the cash flow
woes of the respondent, which resulted in a proposal about the
payment offered
to appellant being staggered over several months.
[42]
On 11
October, the second final draft agreement is signed by both parties,
including provision for staggered payment. The portion
of the text,
as cited earlier, remained identical in both drafts.
[9]
[43]
The parties then went their separate ways. Months later, the
appellant learned that one,
Lamohr, had been employed to manage the
equity platform from about 15 October. This discovery triggered a
protest and afforded
a basis for the appellant’s allegation
that he was the victim of a misrepresentation, because his “old
job” was
filled at once after his departure. In truth however,
it was only a minor aspect of his “old job” that had been
filled
by Lamohr. There is no suggestion that Lamohr also performed a
research function. Tyandela version is that the recruitment of Lamohr
had been in the pipeline since 2013, and mainly, the delay was
occasioned by waiting for Lamohr’s restraint with his former
employer to expire.
Evaluation
[44]
Thus, ultimately, it must be asked if it is credible that there was a
surprise “redundancy”
assertion that tipped the appellant
into signing the agreement? In my view, the probabilities are against
such a conclusion. The
overwhelming impression of all the
contemporaneous evidence is that the appellant was reconciled to
leaving, and all that remained
were the terms thereof. No doubt the
revelations about the financial predicament of the respondent had an
exhilarating effect on
his view about how much and how soon his exit
could be accompanied by value extracted from the respondent. However,
to suggest
that he was either wholly or even mainly persuaded to exit
because of a suggestion on 26 September that his post was redundant
is in my view quite at odds with the probabilities. It was argued
that the appellant was an experienced businessman not a precious
and
timid acolyte who could be bamboozled by a fatuous lie. I agree.
Indeed, he had already made up his mind to go: all that mattered
was
how much money he could extract in an exit deal.
[45]
Accordingly, in my view, it is unlikely a misrepresentation was made
as alleged and still
less likely that an attempt could have been
credibly proposed to him. Moreover, the financial rewards in the
agreement far outstrip
anything that resembles an ordinary
retrenchment package.
[46]
The
Judgment
a
quo
dealt with these considerations and in my view came to the correct
conclusions. The Court
a
quo
weighed the “operational requirements” nature of the
termination and concluded that no fraud on the fiscus was intended.
I
agree that such a finding could not have been made on this body of
evidence. The irretrievable breakdown in the working relationship
between the two key actors in the business, called on occasion
“incompatibility” – perhaps an extravagant and
possibly technically incorrect use of that concept as usually invoked
in Labour litigation –is a common cause fact, and in
any event,
is an objectively demonstrable fact.
[10]
The breakdown was invoked as early as 6 September when the fallout
led to the charges being laid for a disciplinary enquiry. It
is
perfectly legitimate to construe such occurrence as precipitating an
operational need to resolve it by the departure of one
or other of
the keymen. The fiscus was not misled. In any event, the fiscus is
not bound by what parties say, and can exercise
its own judgment
about whether to accept, reject or interrogate a request for a
directive. The sweetening of an exit by the
spes
of
benign tax treatment is not unconscionable and ought not to draw
adverse criticism if there exists a real substratum to justify
it, as
exists in this case.
[47]
In the result, the evidence assessed in accordance with the
probabilities does not support
the proposition that a
misrepresentation as alleged was made, still less that the appellant
was induced by such a belief to enter
the agreement. The agreement
was the least painful way to exit from the cash-strapped respondent
and the impossibility of a continuing
working relationship with
Tyandela.
The
Costs cross-appeal
[48]
The Labour Court appears to have not seriously considered a costs
order and taken it for
granted that no order was appropriate, giving
no reasons. As the matter is to be treated as a civil claim the
regime for costs
is that, absent special considerations, costs ought
to follow the result.
Conclusions
[49]
Accordingly, the appeal should be dismissed. The cross-appeal must
succeed. Appropriate
orders shall follow, including that costs should
follow the result in both the court
a quo
and in this Court.
The
Order
(1)
The appeal is dismissed.
(2)
The cross-appeal is upheld
(3)
The order of the Court
a quo
is set aside in part and the
whole order is substituted by:
“
The application is
dismissed with costs.”
(4)
The Appellant shall bear the respondent’s costs of appeal.
Sutherland
JA (with whom Phatshoane ADJP and Murphy AJA concur)
APPEARANCES:
FOR
THE APPELLANT:
Adv G Leslie SC,
Instructed
by Bernard Vukic Potash & Getz.
FOR
THE RESPONDENT:
Adv S Harvey,
Instructed
by Herold Gie
[1]
See: L A Lambiris, Orders of Specific Performance and
Restitutio
in Integrum
in South African Law (1989) Butterworths, Durban., p182. The remedy
is an exercise of equitable jurisdiction. It has three elements:
A
justa
causa
,
sustaining of material damage and may require restoration of
benefits received.
[2]
Benson
v SA Mutual Life Assurance Society
1986 (1) SA 776 (A).
[3]
The term “operational requirements” is defined in the
LRA as: “…requirements based on the economic,
technological, structural or similar needs of an employer” It
must be taken that the parties intended to use the words
consistently with the definition.
[4]
FA Vol 1/para 8.3 and 8.4
[5]
In evidence it was suggested by Tyandela that the word “is”
should have been and was meant to be “if”.
On either
text the sentence is ungrammatical. The omission of the word would
leave a coherent sentence but that is the case of
neither party. A
more likely explanation is that “with ‘should read “if”
rather than trying to fiddle
with “is’. That
construction would be consistent with the evidence of Tyandela as to
the threat of withdrawal owing
to the appellant’s alleged
rudeness to Vadwa.
[6]
As is obvious, the phraseology of this text does not always achieve
clarity. Moreover, it seems plain that the authors blithely
thought
they could straddle the equitable and civil jurisdiction of the
Labour Court. As a set of averments in a civil claim
they are
woefully inadequate.
[7]
Supra, paragraph 20.
[8]
Supra, cited in paragraph 19.
[9]
Supra, cited in paragraph 14.
[10]
Precisely how to conceptualise the idea of ‘incompatibility’
and how it relates to, or is distinct from, “incapacity”
and has or has not any bearing on “operational requirements”
as defined in the LRA, is a question which remains open
for a
resolution, but is unnecessary to resolve in this matter. The term
seems to have used in this case interchangeably with
“irretrievable
breakdown”. This is a good illustration why too much effort to
label occurrences is unwise; a proper
description of the happening
or the condition is often quite enough.