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[2009] ZALCJHB 86
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Swanepoel v Kievieskroon Country Estate (J2525/07) [2009] ZALCJHB 86 (29 April 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO:J2525/07
NOT
REPORTABLE
In
the matter
between:
SWANEPOEL
Applicant
and
KIEVIETSKROON
COUNTRY
ESTATE
Respondent
JUDGMENT
TODD
AJ:
On
2 April 2009 I made an order in the following terms:
1.
The Respondent is directed to send a
certificate of service, reflecting 30 May 2007 as the last date of
the Applicant’s employment,
to the Applicant’s attorneys
of record within 7 days of the date of this order.
2.
There is no order as to costs.
These
are the reasons for the order that I made:
1.
This was an application for an order
directing the Respondent to issue the Applicant with a certificate of
service in compliance
with the provisions of section 42 of the Basic
Conditions of Employment Act (BCEA), and ordering the Respondent to
pay the costs
of the application on a punitive scale.
2.
The Applicant had been employed by the
Respondent as a Financial Manager from 1 February 2004 until she
resigned on 30 May 2007.
3.
As at 17 October 2007, she had not been
provided with a certificate of service as contemplated by the
provisions of section 42 of
the BCEA. On 17 October 2007 her
attorneys of record wrote to the Respondent, in relevant part as
follows:
“
3.
We are accordingly instructed to demand from you, as we hereby do,
that you furnish
us with our client’s certificate of service in
terms of section 42 of the BCEA, failing which we are instructed to
make an
urgent application to the Labour Court to compel you to do
so.
4.
Should the said certificate of service not be received in our office
before the
close of business, Thursday, 18 October 2007, we will
proceed with launching the aforementioned urgent application against
you,
the costs of which you will be liable for.
5.
Your urgent response is awaited.”
4.
Although the letter alleged that previous
demands had been made, this was denied by the Respondent in answering
papers. There
is no evidence before me of any such demand
having been made prior to the letter of 17 October 2007 and the
matter must be determined
on the basis that this was the first demand
made.
5.
The Respondent’s attorneys answered
two days later in a letter dated 19 October 2007. In response
to the contention
that the Respondent had refused to provide the
Applicant with a certificate of service despite prior demand, the
Respondent’s
attorneys stated the following:
“
We
deny that our client has acted in any manner in breach of the
provisions of the law and as is stated in terms of your letter.
Our client denies that any request has been received from your client
in this regard. Your letter is therefore totally out
of line in
this regard. We take it that you are making a request to
receive a service certificate. We confirm that
such a
certificate may reflect the circumstances that your client left our
client’s employment and should not be of much
use to her when
seeking employment.”
6.
In response to paragraphs 3 to 5 of the
letter of demand, which are the paragraphs quoted above, the
Respondent’s attorneys
replied as follows:
“
Our
client’s Personnel Manager is currently out of the office and
we shall provide you with such details, on her return.
We
deny that your client shall succeed with bringing an urgent
application as is stated in terms of your letter, due to a total
lack
of urgency. Such conduct shall be vigorously defended by our
client.”
7.
In this letter the Respondent, through its
attorneys:
7.1
Placed in dispute the contention that there
had been any previous demand for a certificate of service.
7.2
Recorded that it would treat the letter of
demand of 17 October 2007 as a request for a certificate of service.
7.3
Recorded that the certificate “may
reflect” the circumstances in which the Applicant left
employment and further records
that the certificate of service
“should not be of much use to” the Applicant when seeking
employment.
7.4
Recorded that the Respondent’s
personnel manager was at the time out of the office, but that the
further details would be
provided on her return.
8.
Following receipt of that letter and on the
same date, the Applicant, acting through her attorneys of record,
instituted the present
application. The application was not
brought on an urgent basis as threatened in the letter of demand but
in the ordinary
course in terms of the provisions of rule 7 of the
rules of this Court.
9.
In the Respondent’s answering papers,
the Respondent’s human resources manager:
9.1
Stated that a certificate of service had
already been prepared by her on 28 May 2007, and attached a copy of
that certificate to
the answering papers.
9.2
Contended that the Applicant had been
remiss in not contacting her to arrange to collect the certificate of
service.
9.3
Reiterated that the Applicant had not
previously requested a copy of the certificate of service and had
also not provided an address
for delivery of the certificate of
service following her relocation from Pretoria to Cape Town.
9.4
Contended that the Applicant could easily
have secured the certificate of service through other means than
approaching this Court
by way of the present application.
10.
The certificate of service attached to the
answering papers and dated 28 May 2007 recorded the last date of the
Applicant’s
employment as being 7 May 2007. That was the
last day on which, on the papers before me, the Applicant rendered
services
to the Respondent. She subsequently resigned with
effect from 30 May 2007 and there are proceedings currently pending
before
this Court in which the Applicant contends that her
resignation constituted a dismissal and that the circumstances in
which her
resignation took place, and the reason for her resignation,
rendered the dismissal automatically unfair.
11.
The only relevance of those facts to the
present application is that as at 28 May 2007 the Applicant had not
resigned and the Respondent
was treating her as having absconded from
her employment with effect from 7 May 2007.
12.
In the proceedings before me, Mr Scholtz
who appeared for the Applicant, and Mr Scheepers who appeared for the
Respondent, were
in agreement that the operative event that caused
the termination of the Applicant’s employment was her
resignation on 30
May 2007.
13.
As to whether these proceedings were
necessary at all, Mr Scholtz made submissions which I summarise
broadly as follows:
13.1
Section 42 of the BCEA obliges an employer
to submit a certificate of service on or after the termination of
employment irrespective
of whether a certificate is requested or
demanded by the employee.
13.2
The Applicant would have been entitled to
institute these proceedings without prior warning to the Respondent
in those circumstances
as her legal right to receive the certificate
of service from the Respondent had been violated.
13.3
In those circumstances the letter of demand
of 17 October 2007, giving the Respondent one day to produce the
certificate of service,
was strictly speaking unnecessary, but was in
any event reasonable.
13.4
The response from the Respondent’s
attorneys dated 19 October 2007 clearly demonstrated a wilful refusal
on the part of the
Respondent to comply with its obligations under
the provisions of section 42 of the BCEA.
13.5
Under those circumstances the Applicant was
fully justified in launching the present proceedings.
14.
Mr Scholtz relied in instituting these
proceedings on the jurisdiction conferred on this Court by reason of
the provisions of section
77(3) of the BCEA. In support of this
proposition he contended that the right of an employee to be provided
with a certificate
of service, conferred by section 42 of the BCEA,
falls within the definition of a basic condition of employed as
defined in that
Act, which in turn, in terms of the provisions of
section 4 of that Act, constituted a term of the contract of
employment between
the Applicant and the Respondent.
15.
The right of an employee, in terms of
section 42 of the BCEA, to be provided with a certificate of service
does not in my view constitute
a basic condition of employment as
defined in the BCEA. A basic condition of employment is defined
to be a provision of the
BCEA “that stipulates a minimum term
or condition of employment”. In those circumstances I
have considerable
doubt as to whether this Court has jurisdiction to
deal with an application such as the present one by reason of the
provisions
of section 77(3) of the BCEA. This point
was not taken by Mr Scheepers, and was not fully argued. For
that
reason, I decided to deal with the matter on the assumption that
this Court does have jurisdiction as contended by Mr Scholtz.
16.
Mr
Scholtz sought to persuade the Court, through a process of
inferential reasoning based on a number of collateral facts, that
the
certificate of service dated 28 May 2007 had, on the probabilities,
been prepared only after the application was launched on
19 October
2007 and had been back dated. The issues in this application
must be decided on the application of the rule in
Plascon-Evans
[1]
.
I was not satisfied that any of the considerations raised by Mr
Scholtz cast serious doubt on the assertion in the answering
papers
that a certificate of service had been prepared on 28 May 2007.
In any event, the question of exactly when the certificate
of service
attached to the answering papers was prepared was ultimately not
material to my decision in the matter.
17.
Mr Scholtz also sought to persuade the
Court that the assertion by the Respondent’s attorneys, in
their letter of 19 October
2007, that the certificate of service “may
reflect” the circumstances in which the Applicant had left the
Respondent’s
employ, and (presumably for this reason) would not
be of much use to her, was a threat to include material in the
certificate of
service that the employer was not entitled to include
other than at the request of the employee (section 42(g) of the
BCEA).
18.
The circumstances in which the Applicant
left the Respondent’s employment involved allegations on the
part of the Respondent
that she had absconded from her employment and
was unable to account for a certain sum of money that had been under
her care.
For her part, the Applicant contended that she had
been subjected over a long period of time to sexual harassment of an
extremely
serious nature at the instance of her direct superior.
In my view the passage from the letter of the Respondent’s
attorneys
referred to does contain an implicit threat (to include
reference to these matters in the certificate of service) that was
unwarranted
and inappropriate in the circumstances.
19.
Despite this, no reasonable construction
can be placed on the letter from the Respondent’s attorneys
other than that on the
return of the Respondent’s personnel
manager to the office a certificate of service would be provided.
20.
Mr Scholtz contended that the response gave
no indication of when this would be, and that in the circumstances
the Applicant was
entitled to launch these proceedings on the same
day, 19 October 2007. I do not agree. The appropriate
course of action
for the Applicant would have been to respond and,
first, to point out that the provisions of section 42 permitted the
employer
to include reasons for termination of employment only at the
employee’s request; second, to record that the employee did not
request this; and third, to enquire by what date the certificate of
service would be available.
21.
It was not appropriate to institute the
present proceedings and to rack up the legal costs necessarily
consequent on doing so.
22.
Had the Applicant, through her attorneys,
adopted the alternative approach suggested above there is no reason
to believe that she
would not have been provided with a copy of a
certificate of service on the return of the Respondent’s
personnel manager
to office, whether the certificate was one
previously prepared, or was prepared only in October 2007.
23.
Mr Scholtz submitted that by October 2007
the Respondent was already in breach of its obligations under the
BCEA, and that the Applicant
was justified in instituting these
proceedings for that reason. Section 42 does not impose on the
employer the obligation
for which Mr Scholtz contended.
Undoubtedly an employee is entitled to be provided with a certificate
of service and in the
ordinary course, as a matter of sound human
resources practice, an employer should provide such a certificate at
the time or soon
after the employee leaves the employer’s
service. It does not follow that an employer has a statutory
duty to do so
even where the employee makes no request that she be
provided with such a certificate. In my view an employer will
breach
its obligations under section 42 if it fails to provide an
employee with a certificate of service within a reasonable time after
being requested to do so by the employee.
24.
Although I have dealt with this matter on
the assumption that this Court has jurisdiction to deal with
applications of this nature,
it remains important to point out that
Chapter 10 of the BCEA deals with monitoring, enforcement and legal
proceedings arising
from the provisions of the BCEA. In terms
of section 69, a labour inspector who has reasonable grounds to
believe that an
employer has not complied with a provision of the
BCEA has the power to issue a compliance order. This power, it
is clear,
extends to ordering compliance with a provision of the BCEA
whether or not that provision constitutes a basic condition of
employment
as defined in the Act. A person in the position of
the Applicant should, in my view, properly invoke the provisions of
section
69 and, if necessary, the further provisions of Chapter 10 of
the BCEA, to secure compliance with an obligation to issue a
certificate
of service. Even if this Court does have
jurisdiction (and I have expressed my reservations in this regard
above) it is not
appropriate to bypass the enforcement mechanisms
contained in the BCEA and to approach this Court directly unless
there are compelling
reasons for doing so.
25.
If that were not so, there may be multiple
claims brought in this Court under the provisions of section 77(3) of
the BCEA with cost
implications for parties to that litigation that
are far beyond what may reasonably have been contemplated by the
drafters of the
statute. Indeed, this Court’s roll is
already flooded with applications similar to the present one, many of
which,
being initially unopposed, result in an order being granted
together with costs. Many of those matters then return to the
Court’s roll when the Respondent, who it transpires did not
receive service of the application, brings a rescission application.
Frequently this is accompanied by an urgent application to stay a
writ of execution that has by then been issued for a relatively
trifling sum.
26.
A week on duty in the motion Court reveals
an alarming number of urgent applications to stay execution.
Many of these involve
relatively small sums of money. Others
involve a claim for costs, in which it transpires that a bill of
costs has been taxed
in an amount of between R15,000 and R20,000 when
the underlying claim, in an unopposed application, was to compel an
employer to
issue a certificate of service.
27.
That practice, whether or not permissible
in the sense that the cause of action falls within the jurisdiction
in this Court by reason
of the provisions of section 77(3) of the
BCEA, appears to confirm the existence of a cottage industry of the
kind described by
Wallis J in
Sibiya v
Director General: Home Affairs and others
(High Court, Kwazulu-Natal Division, Pietermaritzburg, unreported,
case number 13859/08), referred to in other recent judgments
of this
Court.
28.
In the present matter both the Applicant
and Respondent have incurred substantial legal costs in bringing and
opposing an application
which for reasons that I have stated earlier,
should never have been brought. Assuming, as I have done, that
the matter indeed
falls within the jurisdiction of this Court, I
raised with Mr Scholtz whether or not, if I refuse the Applicant her
costs in the
matter, I should not simultaneously make an order that
deprives the Applicant’s attorneys of their costs. In
short,
the question was whether or not, if the application was
brought inappropriately, the Applicant should be out of pocket at all
in
respect of legal costs.
29.
Mr Scholtz pointed out that there was
nothing on the papers before me from which I could draw an inference
as to the advice that
had been given to the Applicant, and that it
was plausible that she may have instructed her attorneys to institute
the present
proceedings against their better advice. It seems
to me that that is an inference that I should not readily draw, and
that
I should more probably draw an inference that the Applicant was
advised that the application was appropriate and that it had
prospects
of success. Nevertheless, I was ultimately not
satisfied that I had a proper basis to make an order other than the
one that
I made.
Date
of hearing:
2 April 2009
Date
written reasons given: 29
April 2009
For
the Applicant:
W Scholtz of Jansens Incorporated
For
the First Respondent:
M Scheepers
of Marius Scheepers Attorneys
[1]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A)