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[2019] ZALAC 60
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Pilanesburg Platinum Mines (Pty) Ltd v Ramabulana (JA91/16) [2019] ZALAC 60; (2019) 40 ILJ 2723 (LAC); [2020] 1 BLLR 24 (LAC) (28 August 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA91/16
PILANESBURG PLATINUM
MINES (PTY) LTD
Appellant
and
LISEBO
LERATO PEARL RAMABULANA
Respondent
Heard: 06
September 2018
Delivered: 28
August 2019
Summary: Employee
alleging breach of contract in that employer failed to follow process
provided for in the contract of employment
in terminating her
services – court finding that employee failed to discharge the
onus that there was a breach – further
that employee failed to
justify the quantum of damages- Labour Court’s judgment set
aside and appeal upheld with no order
as to costs.
Coram:
Coram: Waglay JP, Phatshoane ADJP and
Kathree
-
Setiloane
AJA
JUDGMENT
WAGLAY JP
[1]
The respondent, (applicant in the Labour
Court), instituted an application in the Labour Court in terms of
section 77 of the Basic
Conditions of Employment Act, 75 of 1997
(BCEA), seeking the following relief:
‘
1
Declaring the decision of the Respondent to terminate the Applicant’s
employment
on 31 January 2013 unlawful;
2
Declaring the failure by the respondent to comply with the provisions
of
6.1 of the contract of employment between the Applicant and the
Respondent dated 12 November 2007, a breach of the terms of the
employment contract between the Applicant and the Respondent;
3
The Respondent be ordered to allow the Applicant to return to work;
4
The Respondent be ordered to pay the Applicant, her salary and all
benefits
from 31 January 2013 to the date on which her salary and
benefits are to be restored.
5
Alternatively, the Respondent should pay the Applicant’s
damages consisting
of her total costs to company remuneration package
from 31 January 2013 to date of her retirement age; and
6
The costs of this application.’
[2]
The Labour Court (Whitcher J) found for the
respondent and made the following order:
‘
[64]
In light of the findings above, the following order is made:
(a)
It is declared that the decision by
the respondent to terminate the applicant’s employment from 31
January 2013 is a breach
of clauses 6.1 and 11.3 of the applicant’s
contract of employment.
(b)
The termination of employment is set
aside, and the applicant is reinstated in the respondent’s
employ.
(c)
The respondent is ordered to pay the
applicant’s salary and benefits from 31 January 2013 to the
date of which her employment,
salary and benefits are restored.
(d)
The respondent is ordered to pay the
costs of this application.’
[3]
The appellant appeals against the judgment
and order of the Labour Court with its leave.
[4]
The appellant, however, failed to lodge the
record for the appeal within the prescribed period with the result
that in terms of
the Rules that govern proceedings in this Court, the
appeal has lapsed. The appellant also failed to file its Notice of
Appeal
timeously. It has filed an application to reinstate the appeal
and also applied for condonation for the late filing of the notice
of
appeal. The appellant’s attorneys have not displayed any
urgency in prosecuting this matter and have repeatedly failed
to
comply with the time periods prescribed by the rules. This
notwithstanding, the Court must consider all the necessary
circumstances
before deciding on whether to grant condonation and to
reinstate the appeal.
[5]
I am of the view that although the
appellant has been less than diligent in prosecuting the appeal the
merits are such that the
condonation and the reinstatement of the
appeal should be granted. But this Court, as a mark of its
displeasure, would not
allow costs in favour of the appellant.
Background
[6]
According to the respondent, she was
employed as a SED manager on 14 February 2008 in terms of a written
contract of employment.
[7]
On 17 May 2012, she was escorted out of the
appellant’s premises and taken to her place of residence for
her own safety because
the local community within which she was
operating was not pleased with the manner in which she was conducting
the affairs of the
appellant.
[8]
The employer operates a mining company
which is located within the Bakgatla Ba kgafela, a community near
Rustenburg in the North
West Province. The said community is also a
material shareholder of the appellant.
[9]
Some days after being taken home, the
respondent was summoned to a meeting with the general manager and the
human resource manager
of the appellant at which meeting “the
issue of my safety was mildly touched on and discussions were centred
on allegations
that I was causing harm to the company …must
therefore decide on the quickest painless way to part ways…”
At
this meeting, it was reiterated that she was removed from the
workplace for her own safety and that she was not on suspension.
[10]
It appears that the respondent directed a
letter to the appellant on 11 June 2012 which was not produced nor is
there any reference
to it in the papers save what is recorded in
respondent’s correspondence to the appellant dated 9 July 2012
which states:
‘
I
hereby wish to refer to my letter dated 11 June 2012 in which I
outlined the sequence of events as they unfolded before I was
illegally and unprocedurally removed from the workplace without any
meaningful and logical explanation nor valid reasons. To date,
I have
received no formal response nor any explanation from yourselves as to
the reasons behind my removal from my workplace.
Since our meeting of
the 31
st
May 2012 (during which Mr Casper Badenhorst
requested that we part ways) I have heard nothing from the company. I
hereby wish to
know my status in respect of my employment with the
company as I was informed in the same meeting that I was not being
suspended,
but was removed for my own safety. I have since been
waiting at home for the past 2 months waiting for your response and
further
instructions.’
[11]
On 27 July 2012, the appellant furnished
the respondent with a “Severance and Settlement Agreement”
offering about four
months’ salary to end the employment
relationship. The respondent rejected the offer.
[12]
Six months later, on 14 January 2013,
respondent received a letter from the appellant. In this letter, the
appellant mentions a
consultation that took place on 10 October 2012
with a view to resolving the dispute by parting ways. The appellant
persisted that
the respondent’s continued employment was not
tenable in view of the community’s sentiments against her
ongoing relationship
with the appellant. The appellant adds that at
this meeting, it was “
stressed
that we were unable to resolve with the community their concerns
about your presence and we were not prepared to allow
or insist that
you continue such work for your own personal safety and the company’s
interest within the community.”
The respondent does not, in her founding affidavit, make any
reference to this meeting, nor to the fact that the appellant again
contacted her in November 2012 calling her to attend a meeting on 21
November 2012 which she did not attend. Nor does she mention
that on
23 November 2012, she telephoned the appellant to state that she was
not prepared to meet with it.
[13]
On 30 November 2012, which also is not
mentioned in the respondent’s founding affidavit, her attorneys
wrote to the appellant
where the respondent agreed to leave
appellant’s employ if the appellant paid her an amount
equivalent to her five years’
remuneration. The appellant
rejected the offer.
[14]
By means of a letter dated 14 January 2013,
the appellant informed the respondent that it no longer intended the
status quo
to continue and that it needed to resolve the matter by 31 January
2013. The respondent’s reply to this was that she was
prepared
to meet with the appellant to resolve the matter either on 29, 30 or
31 January 2013 or between 4 and 8 February 2013.
That
notwithstanding, the appellant terminated the respondent’s
employment on 31 January 2013. The purported reason it favoured
for
the termination was its “operational reasons.”
[15]
The respondent states that her employment
was terminated without any form of consultations or “
disclosing
the reasons for my retrenchment based on operational requirements”
,
and that such termination was in breach of the employment contract
between the respondent and the appellant more particularly
paragraph
6.1 thereof which provides:
‘
Subject
to compliance with the Employer’s Disciplinary Code and
Procedure any party may terminate this contract by giving
at least
one month’s notice to the other party provided that-
6.1.1 the provisions of
schedule 8 to the
Labour Relations Act, 1995
, will apply to any
dismissal of the Employee; and
6.1.2 the Employer shall
be entitled to summarily dismiss the employee for any sufficient
reason acceptable in law.”
[16]
Based on the above, the respondent’s
contention is that her dismissal was unlawful.
[17]
The appellant in its answering affidavit
emphasised that Bakgatla Ba kgafela community are its shareholders
and stakeholders; and
that it ordinarily engaged the community “on
a number of economical production and social matters” and that
the consent
and input of the community were essential for the
successful operation of the appellant. It further adds:
‘
12.5
In further amplification of the aforesaid it
should be stated that access to the region together with production
activities on same
are regulated and governed by a constructive and
close relationship between the local community and the Respondent
[the appellant].
12.6
During May 2012 the local community became severely aggrieved as a
result of the fact that it felt
that the local youths were not given
preference when posts became available at the Respondent’s
mine.
12.7
The local community demanded that residents and more particularly its
youth should be given preference
when posts became available at the
local mines.
12.8
Community alleged
that the Applicant [respondent] effectively "sold' proof of
residence to individuals that were not members
of the local
community. She was effectively accused of selling jobs and giving
“outsiders” proof of residence in return
for money.
12.9
In addition to the aforesaid it was further
alleged that the Applicant [respondent] used mine adult basic
education and training
(ABET) as a recruitment ground as she
allegedly placed people there for 3 months and would then later give
them jobs at the Respondent
[Appellant].
12.10
As a result of the aforesaid
it was decided that in order to ensure the Applicant's [respondent’s]
safety it would be better
for her to stay at home. In addition to the
aforesaid and taking into account the serious nature of the
allegations against her,
the Respondent[Appellant] deemed it
appropriate to relieve her of her duties at the time.’
[18]
The respondent denies the above allegations
“
in so far as they are
inconsistent with my founding affidavit and the replying affidavit”
.
Nothing of what is recorded above is inconsistent with what is
contained in the respondent’s founding affidavit.
[19]
Appellant’s further averments in its
answering affidavit, contrary to what is stated by the respondent in
her founding affidavit,
that the appellant merely touched on the
reasons for her being told to remain at home, is that it explained
that as a consequence
of her conduct (set out in paragraph 17 above),
the relationship between it and the community, her conduct had
“material
and serious consequences as a result of which both
the community and it had lost trust in her and therefore it would be
appropriate
to discuss an “amicable separation.” Again,
the respondent fails to deal with the appellant’s averments
instead
she simply restated that appellant failed to hold a
disciplinary hearing against her and to have regard to the principles
of natural
justice.
[20]
The
respondent brought the matter to court by way of motion proceedings.
Therefore, the evidence as contained in the affidavits
ought to be
assessed by applying the Plascon-Evans test.
[1]
[21]
The facts distilled from the papers are
that the appellant received complaints from the community which the
respondent served on
behalf of the appellant. The complaints were of
a serious nature more particularly: that instead of ensuring, as she
was required
to, that new employees were members of the community,
respondent dishonestly employed people from outside the community by
subterfuge
creating the impression that the employees were from the
community. The community was so outraged at the respondent’s
conduct
that they were intent on visiting violence upon her. The
appellant, therefore, escorted her to her home from the workplace and
informed her that for her own safety she should remain at home. She
was neither suspended nor was her salary withheld.
[22]
Appellant’s communication with the
respondent was that, despite its meeting with the community, it could
not guarantee her
safety and therefore the only option was to part
ways. The appellant offered her about four months’ salary so as
to amicably
part ways which she rejected and proposed that she be
paid a salary equal to what she would have earned over a period of
five years
calculated on a costs to company basis. The appellant
rejected this counter offer. Over a period of about eight months, the
respondent
remained at home and the appellant continued to remunerate
her. During this period, they met intermittently although the
respondent
alleges that the appellant only made cursory references to
the objections raised by the community. This is improbable. From the
evidence, it is clear that the appellant repeatedly informed the
respondent of the reasons for being requested not to render her
services. Respondent herself sought and obtained confirmation that
the appellant’s insistence that she stays at home was
not
because she was suspended but because the appellant feared for her
safety at the workplace.
[23]
While the respondent was at home, the
appellant set in motion the termination of her employment. This was
not only on the basis
that the local community was a material
shareholder. There was an agreement between the appellant and the
community that the appellant
would look after its interest. One of
ways to do so was to offer new employment opportunities to the local
residence. The community’s
complaint was that respondent failed
to properly implement that part of the agreement by consciously
employing people who were
disqualified.
[24]
Despite all the community’s
complaints being brought to the respondent’s attention, on her
version, she adopted a rather
malevolent approach. She simply did not
respond to these allegations. Her attitude was: “charge me and
prove it”. Not
once in the eight months did she ever inform the
employer that the community’s complaints were untrue or perhaps
misconceived.
[25]
The appellant had to balance this rather
sensitive issue. On one hand, it relied on the community, which
raised issues which were
serious with anger and frustration, for its
operational guidance and assistance. On the other, the respondent did
not react to
the concerns broached. In the circumstances, the
appellant decided, especially after it had traversed the issues with
the community
which was adamant that respondent not be retained, that
the only option it had was to terminate the employment relationship.
[26]
The unchallenged evidence was that it was
in the interest of the appellant to terminate the employment
relationship so as to continue
with its relationship with its
material shareholders and to ensure that no harm is visited upon the
respondent. More importantly
the relationship between the appellant’s
material shareholders and the respondent had broken down. While the
respondent saw
no purpose in meeting with the appellant, she
eventually acceded to the invitation when the horse had already
bolted.
[27]
The appellant labelled the respondent’s
termination as one for “operational reasons”. The
respondent immediately
equated this label to be a dismissal based on
appellant’s “operational requirements” as
contemplated by
s189
of the LRA. This is erroneous. It is not proper
for employers in a labour relations environment to always label their
action or
even the charge they prefer against an employee for
misconduct. There is simply no need to try and label or
compartmentalise a
decision or for that matter a misconduct charge.
All that needs to be done is for an employer to set out the facts and
explain
the complaint or the issue that arises from the facts which
will be subject of the enquiry or is the basis for the decision it
has made.
[28]
In this matter, the appellant terminated
the respondent’s contract of employment because it was
confronted with a conflict
between its material shareholder and its
employee. It did not enquire from the respondent if the community’s
complaint against
her was valid nor did the respondent volunteer any
response. The appellant attempted to negotiate with the community for
the respondent’s
return to work, when this failed it was
according to it, compelled to terminate the employment relationship,
and this after a period
of eight months. On the papers as they stand
the appellant simply had no other option. In such circumstances, the
termination of
respondent’s employment cannot constitute an
unlawful termination. It may be unfair but that is not what the
Labour Court
was called upon to decide.
[29]
The respondent disavowed reliance on the
LRA when it sought relief in terms of the BCEA and on unlawfulness of
dismissal rather
than approaching the CCMA on the basis of an unfair
dismissal. She relied on contractual law as opposed to equity and
fairness.
The respondent’s contention is that the appellant is
bound by the terms agreed upon with regard to the process of
termination
and that it failed to comply therewith hence it is in
breach of their agreement. However, she fails to recognise that she
cannot
simply raise non-compliance of a term of a contract as a
breach. She has to show that the preconditions for the appellant to
comply
with the clauses of the agreement are met.
[30]
In my view, the precondition for the
compliance with the process terms of the employment contract was that
she had committed misconduct.
The appellant has never said that, that
was the case. From the outset, it made it clear that it sought to
protect the respondent
from possible physical harm and to appease its
material shareholders. It became impossible to have the respondent
return to work.
After remunerating her for over eight months while
she stayed at home appellant terminated her employment.
[31]
As this is not a matter where it has to be
determined whether the termination was fair as required by the LRA
but whether it was
a breach of contract, the
onus
was upon the respondent to satisfy the Court that it was so. She has
failed to do so. I must also reiterate that clause 6.1.1 of
her
contract of employment upon which the respondent relies relates to
dismissal based upon conduct or capacity. As I stated earlier,
it is
not the appellant’s or the respondent’s case that she was
dismissed for either. The respondent’s dilemma,
as has often
been raised by this Court, is her proceeding in terms of the BCEA
instead of the LRA’s unfair dismissal jurisdiction.
The relief
of reinstatement in terms of the LRA is the same as specific
performance that arises in a contractual dispute and whilst
compensation is statutory in terms of the LRA, an employee proceeding
in terms of the BCEA must prove the damages she has suffered
to
obtain monetary relief. Most importantly, had the respondent
proceeded in terms of the LRA, it would have been the appellant
who
would have to satisfy a commissioner that the dismissal was fair.
[32]
I also need to add that had I found that
appellant did in fact breach the agreement the only relief open to
her was either specific
performance or damages. In view of the facts
of this case, it would not be appropriate to grant her specific
performance. With
regard to damages, as I said earlier there was a
duty upon the respondent to prove the quantum of her damages, to
simply demand
damages in the amount that she would earn until her
retirement is totally misconceived. Damages in a breach of contract
needs to
be proved, she failed to prove any, nor does she allege that
she has been out of work from the date of her employment being
terminated.
In the circumstances, had the respondent proved a breach,
she would not in law be entitled to any relief.
[33]
But worse still, because this is a civil
matter, there is no reason why costs should not follow the result,
however, for reasons
recorded earlier in this judgment, this Court
will not grant a costs order in favour of the appellant as a mark of
its displeasure
at the less than efficient manner with which the
appellant had complied with the Rules of this Court. However, there
is no reason
why there should not be an order of costs in the Labour
Court although I hope the appellant will not enforce that order.
[34]
In the result, I make the following order:
(a)
The appeal is reinstated;
(b)
The late filing of the notice of appeal is
condoned;
(c)
The appeal is upheld with no order as to
costs.
(d)
The order of the Labour Court is set aside
and is substituted with the following:
“
the
application is dismissed with costs”.
______________
Waglay JP
I
agree
_______________
Phatshoane
ADJP
I
agree
______________
F
Kathree-Setiloane AJA
APPEARANCES:
FOR THE APPELLANT:
Adv C Goosen
Instructed by Macintosh
Cross & Farquharson Attorneys
FOR THE RESPONDENT: Adv
Mphahlele SC
Chosane
Attorneys
[1]