About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2008
>>
[2008] ZALCCT 1
|
|
Du Plessis v Kaap Agri Bedryf Ltd (C168/2007) [2008] ZALCCT 1 (24 June 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C168/2007
In
the matter between:
FREDERIC
JOHAN DU PLESSIS
APPLICANT
and
KAAP
AGRI BEDRYF
LTD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the applicant sought to challenge the termination of his employment
on the basis that it
was an unfair dismissal based on operational
reasons by the respondent. The respondent contended that the
employment relationship
was terminated by mutual agreement between
the parties.
[2]
The applicant abandoned the issue of
procedural fairness at the beginning of the hearing. The issues
to be determined in terms
of the agreement between the parties are
whether:
“
5.1
the settlement agreement entered into between the parties deprived
the Honourable Court of jurisdiction to entertain the dispute;
5.2 the settlement
agreement entered between the parties :
5.2.1 was induced by
misrepresentation; or
5.2.2 constitutes the
valid settlement of an unfair dismissal dispute;
[3]
If it was to be found that the agreement
was induced by a misrepresentation and that the Court had
jurisdiction to entertain the
dispute, then the remaining issue would
be whether or not the dismissal was substantive fair.
[4]
The respondent brought an application to
have the case of the applicant dismissed immediately the applicant
closed his case on the
bases that the applicant had failed to show
that he was dismissed and alternatively that the applicant’s
claim was
res judicata,
as the dispute was settled by agreement between the parties.
Background
facts
[5]
It is common cause that the respondent
experienced difficult trading conditions during the first months of
its financial year 2005/2006.
Because of these conditions the
applicant who was employed as general manager: packaging became
concerned about the performance
of his division and as a result
motivated for the reduction of staff as a cost saving measure. At
that stage there were three managers
reporting to the applicant and
he reported to the operations manager.
[6]
As a result of these trading difficulties
the respondent embarked on cost cutting measures during January 2006
and when this did
not yield any positive results, a meeting was
convened with all staff members on 20 February 2006. At this meeting
the respondent
informed the staff that it intended commencing with
consultation regarding the proposed restructuring and that it would
be done
in terms of s189(3) of
Labour Relations Act 66 of 1995
( the
Act).
[7]
Thereafter, and on the 22 February 2006, Mr
Liebenberg, the general manager and Mr J du Toit , the senior
manager, met with the
applicant and advised him that his position
would be made redundant. The applicant did not contest the issue of
making his position
redundant. What then followed after this
announcement was consultation between the parties regarding the
severance pay for the
applicant.
[8]
The consultation resulted in an agreement
between the parties on amount of severance to be paid to the
applicant. Although the applicant
left the employment of the
respondent on 28 February 2006, the employment terminated on
31 March 2006.
[9]
It is common cause that the applicant
appointed Mr Andre Du Toit to the position of general
manager: packaging material,
an appointment the applicant claims to
have become aware of on 13 November 2006. The applicant further
testified that this is the
same position he occupied before
termination of his employment with the respondent. It was also
arising from this that the applicant
referred a dispute to the
Commission for Conciliation, Mediation and Arbitration (the CCMA).
[10]
The conciliation process having failed to
settle the dispute and Commissioner Warwick having ruled
that the CCMA did
not have jurisdiction to hear the dispute, the
applicant instituted these proceedings.
The
case of the applicant
[11]
The thrust of the applicant’s case is
that he signed the agreement terminating his employment due to the
misrepresentation
by the respondent. The misrepresentation according
to him arose from the presentation by the respondent during the
consultation
that his previous position, that of the general manager:
packaging would be done away with.
[12]
During cross examination the applicant
acknowledged that he had made the proposal for rationalisation which
would result in the
reduction of staff complement as a cost saving
measure. He further conceded that despite the fact that the
rationalisation process
was to render certain positions redundant, it
was not intended to do away with the functions of those positions.
The functions
were according to him to be absorbed into other
positions which were unaffected.
[13]
When asked whether he would have accepted
the position in which Mr du Toit was appointed in, regard being had
to the fact that it
paid R10 000.00 less than what he earned at the
time, the applicant indicated that he would “seriously consider
it.”
The
case of the respondent
[14]
The respondent closed its case without
leading any evidence and applied for the dismissal of the applicant’s
case with costs.
The respondent contended that the case should be
dismissed because the applicant had failed to show that he was
dismissed. The
applicant contended that in the alternative, the case
should be dismissed because the matter
was
res judicata
, the dispute having been
settled by agreement.
Evaluation
[15]
It is clear that the applicant sought to
have the agreement concluded between him and the respondent set aside
on the basis of misrepresentation.
[16]
The legal principles to apply when dealing
with a plea of misrepresentation are summarised in
Novick
And Another v Comair Holdings and Others
1979 (2) SA 116
(WLD),
as
follows:
“
(a)
That the representation relied upon was made.
(b) That it was a
representation as to a fact. A promise, prediction, opinion or
estimate or exercise of discretion is not a representation
as to the
truth or accuracy of its content; it can, however, often be construed
as a representation that the person making it is
of a particular
state of mind.
(c) The representation
was false. In relation to an ordinary representation of fact, what
must be shown is not merely that it was,
or turned out to be,
erroneous, but that it did not represent the bona fide view, at the
time when it was expressed, of the person
who expressed it.
(d) That bit was
material, in the sense that it was such as would have
influenced a reasonable man to enter into the
contract in issue.
(e) That it was
intended to induce the person to whom it was made to enter into the
transaction sought to be avoided.”
[17]
In the pleadings and his evidence, the
applicant does not reveal the nature or form of the representation
made by the respondent.
His contention is that the redundancy of his
position was not properly “
thought
through.”
In his testimony
the furthest he could go in relation to this issue was that had the
position made available to him, he would
have considered it.
[18]
The facts in the present case are
distinguishable from those in
Baudach v
United Tobacco (200) 21 ILJ 2241 (SCA)
,
where the misrepresentation was found to be the cause of the
inducement for the employee to accept the settlement. In that case
the Court found that the agreement could not be validly raised as a
defence by the employer. However, in the present instance there
is no
basis to arrive at the conclusion that there was a misrepresentation
by the respondent. Both in the pleadings and the evidence
the
applicant does not reveal how he was misled and how the
misrepresentation induced him into entering into the agreement.
[19]
Mr Grobler counsel for the applicant argued
that the applicant would not have signed the agreement but for the
fact that he was
told that he ran the risk of not receiving the same
amount of severance pay should the respondent not succeed in making
savings
during that period. The applicant and other employees were
informed that they could receive less in severance pay, should the
financial
situation deteriorated further. It was not stated as
a fact that if he did not sign at that stage he would receive a
lesser
severance pay irrespective of whatever happens in as far as
the costs saving measures were concerned.
[20]
It is also important to note in relation to
the issue of the very position which the applicant complained about
that, when asked
whether he would have accepted it despite it paying
R10 000.00 less then what he earned before termination of his
employment, he
testified that he might have considered
the position. He did not say that he would have accepted the
position.
[21]
Mr Grobeler further argued that the
applicant would not have signed the agreement but for the
representation by the respondent
that his post was redundant.
This argument does not assist the case of the applicant because on
his own version the proposal to
embark on costs saving measures came
from him. He had proposed that two senior management positions be
declared redundant. This
is the approach the respondent adopted
except that one of the senior positions included the applicant’s
position and not
that of the other senior manager as was proposed by
him.
[22]
It is undisputed that the costs saving
measures embarked upon by the respondent, resulted in significant
savings. It is also not
disputed that Mr du Toit who the respondent
appointed as general manager: packaging, was not an outsider but an
employee who was
transferred horizontally from trade division and
earned a salary far less than that of the applicant. Whilst the title
of the post
occupied by Mr du Toit, was the same as that which was
occupied by the applicant, general manager: packaging, the content of
the
post is different. This transfer which is recorded as part of the
common cause facts in the pre-trial minute occurred as a result
of a
further restructuring which occurred in 2007. It is however
strange as the applicant contended, that the appointment
was made
retrospective to October 2006. However, this does not assist the case
of the applicant and as I pointed out to the applicant’s
counsel the critical issue is that the parties agreed that the
appointment happened as a result of another restructuring process.
[23]
Another attack which was raised during
argument against the agreement was that it contained a common error
such that it could not
be said that there was a meeting of the minds
of the parties. The argument relates to the fact that whilst this was
a termination
based on operational reasons, it was in the signed
agreement titled “resignation.” This argument is
unsustainable.
The approach to name the termination “resignation”
arose from the concern by the applicant about the implication of
securing future employment if it was to be stated that he was
retrenched. He requested that the agreement should record the
termination
of his employment with the respondent as being due to
resignation. This proposal was acceptable to the respondent and
accordingly
the reason for termination was titled as such in the
agreement which was signed by both parties on 27 February 2007.
[24]
Prior to signing the agreement and on 22
February 2006, the applicant confirmed the agreement that the
termination will be treated
as a resignation rather than termination
based on operational reasons. The memorandum he addressed to the
respondent reads as follows:
“
BEDANKENG
Beste Johan,
Hiermee gee ek
formeeel kennis date ek my dienste as Hoofbestuurder: Pakmateriaal
sal be-eindig met effek 31 Maart 2006.
Ek maak graag van
hierdie geleentheid gebreuk om my uit te spreek teenoor die Direksie
en Bestuur van Kaap Agri (Edms) Bpk vir die
voorreg om deel van ‘n
wonderlike span te gewees het.
Voorspoed vir toekoms
Vriendelike groete.”
[25]
As stated above the agreement was signed by
both parties on 27 February 2006. In its introduction the agreement
provides as follows:
“
ANNGESIEN
Kaap Agri met Du Plessis
begin konsulteer het oor sy moontlike diensbeeindiging weens
operassionele redes;
EN
AANGESIEN
Du Plessis op 22
February 2006 skriftelike kennis gegee het dat hy met effek van 31
Maart 2008 uit die diens van Kaap Agri bedank.”
Clause 7 provides that
the agreement is in full and final settlement of any claim that the
applicant may have against the respondent.
[26]
In the light of the above I do not
agree that there was confusion as to what was agreed upon by the
parties. In any event the use
of the word resignation is not
significant in my view as what is important is that the facts
indicate very clearly that the employment
relationship was terminated
by agreement.
[27]
In conclusion, I am of the view that
the applicant has failed to show that he was induced by the
misrepresentation of the respondent
to enter into the agreement,
terminating his employment. In the result the application to have the
agreement concluded between
parties set aside stand to be dismissed.
I am also, in the light of the above, of the opinion that the
applicant has failed to
discharge his evidentiary duty of showing
that the termination of his employment was due to a dismissal by the
respondent.
Costs
[28]
On the 13
th
June 2008, I made an order dismissing the application with no order
as to costs. It has subsequently become apparent that this
order may
not be clear in the light of the number of applications which arose
in these proceedings. I have accordingly varied the
order for
purposes of clarity.
[29]
In the premises the following order is
made:
A.
The application to have the agreement
concluded between the parties set aside is dismissed.
B.
The employment relationship was not
terminated by dismissal but by agreement between the parties.
C.
The Court lacks jurisdiction to
entertain the claim of unfair dismissal.
D.
There is no order as to costs.
_______________
MOLAHLEHI
J
DATE
OF HEARING :
12 JUNE 2008
DATE
OF JUDGMENT :
24
JUNE 2008
APPEARANCE
For
the Applicant :Adv Grobelar
Instructed
by : J Gruss Attoneys
For
the Respondent: Attorney H Nieuwoudt
Instructed
by : Deneys Reitz Inc