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[2007] ZALCJHB 80
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Mookeng v Tshwane University (J2252/06) [2007] ZALCJHB 80 (9 March 2007)
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IN THE
LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO
: J2252/06
(NOT
REPORTABLE)
In
the matter between
JEMINA
MOOKENG
Applicant
and
TSHWANE
UNIVERSITY
Respondent
J
U D G M E N T
PILLAY
D, J
: This is an
application in which the applicant seeks firstly an order
inter
alia
declaring her disciplinary inquiry
to be defective and secondly, damages for alleged breach of a fixed
term contract, amongst other
relief.
The
applicant was employed in terms of a fixed term contract, which
commenced on 18 February 2003 and endured for three years until
17 February 2006. She contends that this contract was
renewed on 27 February 2006. In support of
her
contention, she relies on an email drawn from the respondent’s
webmail, which reads as follows:
“
Subject:
Temporary workers contracts extended.
The executive management
committee (EMC) has decided to extend the current contracts of all
temporary workers until further notice,
subject to a 30-day notice
period. This decision taken at the EMC meeting today (Monday
27 February) will allow the
Institution the time it needs to
address the reduction of its salary account in a comprehensive and
compassionate manner.”
However,
in relation to the applicant the respondent had given notice by
letter dated 1 December 2005, which was subsequently
corrected on 2 February 2006, terminating the applicant’s
services with effect from 28 February 2006
in terms of the
expiry of the fixed term contract.
The
applicant also contends that the termination of the fixed term
contract was unlawful because the respondent ought to have given
three months notice in terms of clause 5.1 of the agreement of its
intention to terminate the contract. Clause 5.1 reads
as
follows:
“
Notwithstanding
anything to the contrary in clause 1 of the agreement either party to
this agreement may terminate it at any time
during the currency
thereof, giving three months notice in writing to the other party.”
Clause 1 records the
duration of the contract. Clause 5.1 clearly refers to the
termination of the contract
during the currency.
As the
contract was not being terminated during its currency, but by
effluxion of time, the respondents were not obliged to notify
the
applicant of the expiration of their contract. The notices
issued in December and February therefore were superfluous.
In
the opinion of the Court, the contract came to an end in
February 2006 by effluxion of time. This opinion is
fortified
by the further conclusion that the email drawn from the
general webmail of the respondents, did not extend the applicant’s
contract. The webmail extended the contracts of temporary
workers. It was issued after the applicant’s contract
had
expired by effluxion of time, alternatively after she had received
the letters confirming that her last day of work would be
28 February 2006.
In
any event, even if the Court is wrong in this construction, the
webmail does not allow the applicant to assume that her contract
will
be renewed for an entire three-year period, which is what she claims
as damages. At most, she could claim one month’s
notice.
The
matter was complicated by the respondent initiating disciplinary
action against the applicant for misconduct committed during
her
employment, however, the disciplinary proceedings commenced after the
contract of employment expired. The respondent
had no
obligation to hold such an inquiry once the employment relationship
had terminated and once it relied on the expiry of the
fixed term
contract as a basis for the termination. The respondent’s
explanation is that it held such an inquiry out of extreme
caution to
ensure that the termination was fair. However, having concluded that
the inquiry was superfluous and academic the Court
has no need to
investigate whether the inquiry was fair.
The
applicant bears the onus of proving the alleged breach of contract
and all her damages. Having failed to prove that her
contract
was extended beyond February 2006 or any other period, her claim
must be dismissed. There is also no evidence
that the applicant
tendered her services after February. It appears that she was
not remunerated after February 2006.
In the circumstances,
the claim is dismissed with costs.
___________
PILLAY
D, J
Applicant’s
Representative:
Mr Sebola (Union
Official: Retail & Allied Workers Union)
Respondent’s
Representative
: Ms. M.S.B.M Sono
(Maserumule Inc.)
Date
of Hearing:
09 March 2007
Date
of Judgment
: 09 March 2007