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[2010] ZALCJHB 376
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Kwena v South African Football Association (J2752/09) [2010] ZALCJHB 376 (17 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J2752-09
In
the matter between:
KWENA
DARIUS MANGOPE
Applicant
and
SOUTH
AFRICAN FOOTBALL
ASSOCIATION
Respondent
Judgment
Molahlehi
J
Introduction
[1]
The applicant in this matter seeks an
order in the following terms :
“
Declaring
the decision by the Respondent to terminate the Applicant's contract
of employment on 23 November 2009 unlawful; Declaring
that the
unilateral termination of the contract of employment by
the
Respondent amounts to a breach of contract”
The
application is brought in terms of
s77
(3) of the Basic Conditions of Employment Act, No. 75 of 1997 ("the
BCEA")
[1]
and the common
law of contract.
It
is important to note as will appear later that the applicant’s
cause action is not based on the unfair dismissal concept
as
envisaged in the Labour Relations Act 66 of 1995 (“the LRA”)
[2]
[2]
The applicant accuses respondent of having breached the terms and
conditions of their 3 (years) fixed term contract of employment.
[3]
In terms of the relief, the applicant seeks contractual damages
equivalent to the remainder of the period of the contract as
at the
point at which the respondent terminated it.
[4]
The respondent opposed the application and contended that the
termination occurred prior to the expiry of the probationary period
including the consequent poor work performance on the part of the
applicant for that reason it was entitled to terminate the contract.
[5]
The respondent further
contended that the matter ought not to be determined on the basis of
motion proceedings but rather be referred
to oral evidence because of
the number of disputes of facts that exist between the versions of
the parties.
Background
[6]
It is common cause that the
parties entered into a fixed term employment contract which was for a
period of 3 (three) years,
commencing during August 2009 and ending
during July 2012. The essential terms and condition of the contract
for the purpose of
this judgment are contained in clause 5 of the
contract of employment which makes provision for a probationary
period
of three (3) months calculated
from the date of the assumption of duties by the applicant. It is
clear from the reading of the employment
contract that the purpose of
probation is to provide the respondent an opportunity to evaluate the
performance of the applicant
before it confirms the appointment. The
agreed salary of the applicant for the period of the employment
contract was R720 000,00,
being the total cost to employer per annum.
The case of the
applicant
[7]
The applicant says states that somewhere
the end of October or the beginning of November 2009, he was
approached by Ms. Coetzee,
the Human Resources Manager of the
respondent, who handed him a letter extending the probationary period
for another month until
the end of November. And when he enquired as
to why the period was being extended he was told that it was because
he was expected
to have served the full uninterrupted period of 3
(three) months. The applicant says he was told his period was
interrupted by
those days when he was off due to ill-heath.
[8]
According to the applicant he was
required to take the letter to Mr.
Raymond
Hack, the respondent‘s Chief Executive Officer (“the
CEO”) to confirm that he was agreeable to the extension
of the
probation period. The applicant says he handed the letter to Mr. Hack
who indicated that he was satisfied with the performance
of the
applicant and the extension of the probation period.
[9]
The applicant contends that the
respondent in terminating his employment breached the employment
contract for the following reasons:
70.1.
“Prior to the unlawful termination
of my contract of employment, the Respondent ought to have properly
evaluated and considered
my work performance, compatibility and
overall conduct, which was not done by the Respondent;
70.2.
I was not given reasonable evaluation,
instruction, training, guidance or counseling during the course of
the probationary period;
70.3.
In fact, Hack has often
told me that he was happy with my performance;
70.4.
Prior to the termination of my contract
of employment I was at no stage given an opportunity to make
representations regarding the
alleged unsatisfactory performance of
my duties;
70.5.
It is an implied term of the contract of
employment that the Respondent prior to terminating my contract,
should have given me the
opportunity to make representations
regarding the baseless allegations made against me.”
[10]
The other basis upon which the applicant
challenges the termination of his employment contract is that the
respondent did not in
doing so comply with the principle of fair
dealing as required by law. In this respect the applicant says the
following:
72.
“
This
doctrine of fair dealing binds all employers and confers on all
employees a right to enforce their right to fair dealing.
73.
This right to fair dealing exists
independently of statutory protection against unfair dismissal and
unfair labour practice.
74.
I aver that the Respondent has breached
my contractual right to fair dealing by unilaterally terminating my
contract of employment
without affording me the opportunity to make
representations prior to terminating my services.
75.
Before my contract of employment was
unlawfully terminated by the Respondent I was entitled to be
evaluated and informed
of my poor performance during the subsistence
of the probationary period to give me an opportunity to improve. In
any event, I
deny that my performance justifies a dismissal because I
rendered my services satisfactorily and to the best of my abilities
in
the circumstances.”
[11]
The applicant says the first time he
heard about complaints which could impact on his contract of
employment was on 23
rd
November 2009, when he was presented with the letter of termination.
The termination of the employment contract could not have
been
objectively and properly been made in the absence of affording him an
opportunity to make representation.
[12]
The applicant contends that he suffered
damages due to loss of income and loss
of earnings arising
from the unlawful
termination of the employment contract by the respondent. He says the
damages he suffered as a result amounts
to
the
total sum of R1 860 000.00 (one million eight hundred and sixty
thousand rand).
The
case of the respondent
[13]
The case of the respondent is that this
matter cannot be resolved by way of motion proceedings due to the
disputes of facts that
have arisen from both parties’ papers.
The respondent summarizes the dispute of facts in its heads of
argument as follows:
“
2.2.1
The reason for the extension of
the probationary period is in dispute. The reason furnished by the
Respondent is clearly more probable
than that proffered by the
Applicant. In any event, the Applicant agreed to the extension of his
probationary period;
2.2.2
The Respondent contends that the Applicant was a senior employee and
was required to carry out
his duties with "absolute diligence,
effectiveness and precision". During October 2009, the Applicant
was advised of
the shortcomings in his performance and afforded a
further opportunity of assessing his performance;
2.2.3
The Applicant's performance fell
dismally short of what was required as illustrated during the
International Football friendly match
between South Africa and
Serbia. The Applicant was responsible for ensuring that proper
security and safety measures were
in place;
2.2.4
During
certain International fixtures which were undertaken by the
Respondent, the Applicant did not have the necessary information,
statistics and data at his disposal to provide critical and important
advice on security arrangements. Hence the letter of complaint
from
the Northern Cape Executive Committee Member, Mr J J Koopman;
2.2.5
During an International friendly match
between South Africa and the Senior National Teams in Port Elizabeth
on 14 November 2009,
the Applicant was unwilling to be placed in the
venue's operational centre where the entire nucleus and control of
security is
required to be undertaken. Endeavours had to be made to
establish the Applicant's whereabouts and very often, the information
which
was provided was incorrect. Inadequate and improper
arrangements had been made to ensure that refreshments and catering
facilities
were made available. This obligation fell upon the
Applicant;
2.2.6
During the fixture between
the respective Senior National Teams of South Africa and Jamaica, the
Applicant was requested
to provide proper and adequate feedback on
all security issues at the stadium. It appears to be common cause
that all the Applicant
had to say was that everything was in order.
He was in no position to provide statistics, data, numbers and
important information
relating to security. He was unable to grasp
the importance of the task at hand;
2.2.7
The Applicant failed to ensure the
timeous provision of security services which resulted in the
intervention of the
Local Organising Committee of the World Cup;
2.2.8
The excuses proffered by the Applicant
were viewed by the Respondent as being unacceptable. The Respondent's
dissatisfaction with
the Applicant's performance was reinforced by
complaints received from the Divisional Commissioner Policing of the
South African
Police Services;
2.2.9
The extension of the Applicant's
probationary period did not have the desired effect. He failed
to redeem himself or
demonstrate that he was capable of fulfilling
his tasks in a proper and acceptable manner;
2.2.10
The
Applicant was afforded a sufficient opportunity to make
representations on the issues raised. His response amounted to
nothing
more than a flimsy and frivolous excuse which, under the
circumstances, was unacceptable and inspired little confidence in his
abilities. He had at his disposal, all the resources that
were required to ensure
the safety and security of the
participants.”
[14]
Mr. Hutchinson, for the respondent
argued that the other reason for the alleged disputes of facts was
that he would have liked to
cross examine the applicant on what did
he do about the complaints which were made about his work. He
emphasized in his submission
that before a determination can be made
concerning the fairness of the dismissal of an employee serving a
probationary period the
court will have to have regard to item 8 of
the Code of Good
Practice:
Dismissal. In terms of item 8 of the Code in making a decision about
fairness of a dismissal of an employee for poor work
performance
during or on expiry of a probationary period it ought to be accepted
that the reasons for the dismissal may be less
compelling then would
be in dismissal effected after the completion of the probationary
period.
[15]
In the context of arguing that the
concept of fairness is applicable in the present matter Mr.
Hutchinson argued that seniority
and experience are important factors
in the assessment of the standard of performance of an employee. It
was argued that because
the applicant was appointed on the attributes
of his experience and skill, the respondent was on the basis of the
complaints received
about his performance entitled to terminate the
employment contract as it did. Mr. Hutchinson concluded his argument
by saying
that the dispute was whether or not the applicant was
competent.
The
contract of employment
[16]
The relevant provisions of the contract
of employment for the purposes of this judgment is clause 5
which provides as follows:
“
5
PROBATIONARY PERIOD
5
.1
Prior to the Employee's employment being confirmed, the
Employee will be required to serve a period of probation of three
(3)
months calculated with effect from the effective date;
5.2
The purpose of there (sic) probation is to provide the Association an
opportunity evaluate the Employee's
performance before confirming his
appointment and although there period of probation is not used for
the purposes of depriving
the Employee of the status of permanent
employment, it is of particular significance that proper evaluation
and consideration be
given to the Employee's performance,
compatibility and overall conduct;
5.3
To extent that it is necessary, the Employee will be
given reasonable evaluation, instruction, training, guidance
or
counseling in order to allow the Employee to render satisfactory
service during the course of the probationary period. The extent
thereof there will depend upon the seniority and remuneration of the
Employee;
5.4
Should the Association determine that the
Employee's performance is below standard, the Association will
advise
the Employee of any aspects in respect of which it considers the
Employee to be failing to meet the required performance
standards and
the conclusion of the probationary period either dismiss the Employee
or extend the probationary period, as
the case may be;
5.5
The period of probation may only be extended for a reason that
relates to the purpose of probation and the
Association will only
dismiss an Employee or extend the probationary period after the
Employee has made representation,
duly assisted by a fellow
Employee if need be.”
Legal
principles
[17]
In general the remedies of an employee
whose employment contract has been terminated by an employer can be
found in either the concept
of breach of contract under the common
law or unfair dismissal concept under the LRA.
[18]
In terms of the LRA an employee who
claims unfair dismissal has to show that there was a dismissal and
once that has been established
the employer has to show that the
dismissal was for a fair reason. Although, as the authorities have
stated, the need for fairness
in the termination of employment as set
out in the LRA, has softened the harshness of a dismissal, it has not
taken away the principles
governing the need for a lawful termination
of an employment contract in terms of the common law principles
neither has it taken
away the remedies provided for in terms of the
principles of the law of contract. See MEC, Department of
Health, Eastern
Cape v Odendaal & Others
(2009) JOL 2311
(LC).
[19]
In
SA
Maritime Safety Authority v McKenzie (2010) 31 ILJ 529
(SCA), the court in drawing the distinction between rights
acquired
under a statute such as the LRA and the contract had the following to
say:
“
The
fundamental difference between rights arising from a contract and
rights arising from statute is that the former depend upon
the actual
or imputed consent of the parties whilst the latter are imposed by
the legislature in order to give effect to social
policies
underpinning the legislation.”
[20]
In terms of the common law any
material
breach of the terms of an employment contract can be regarded as
repudiation of the contract entitling the affected party
(commonly
referred to as the “innocent party”) the right to accept
the repudiation and sue for such a breach. The affected
party may
elect to hold the other party to the contract and claim specific
performance or claim damages caused by the breach. Breach
of a
contract generally arises when an employee or an employer fails in a
material way to comply with his or her duties as set
out in the
contract. See
Steward Wrightson (Pty) Ltd
v Thorpe
[1977] 3 All SA 267
(A)
and
WL
Ochse Webb & Pretorius (Pty) Ltd v Vermeulen
[1997] 2 BLLR 124
(LAC).
[21]
As stated earlier in terms of the common
law an employee who claims that the employer is in breach of the
terms of contract of employment
may elect to either accept the
repudiation or claim damages or, reject the repudiation and hold the
employer to the contract. In
a fixed term contract damages are
generally calculated on the basis of what the employee would have
earned for the remainder of
the period of the contract but for the
unlawful and premature termination of the contract.
[22]
In Fed Life Assurance Ltd v
Wolfaardt
2002 (1) SA 49
(SCA), a case which was referred to with
approval in Buthelezi v Municipal Demarcation Board
(2005) 2
BLLR 115
(LAC), the court held that the common law right of an
employee to claim for damages for breach of contract was not in
conflict
with the Bill of Rights. The principle espoused in these
decisions is that an employee has a right to claim and be compensated
for damages suffered as result of an unlawful termination of the
contract of employment by the employer. See also National Entitled
Workers Union v Commission for Conciliation, Mediation &
Arbitration & others (2007) 28 ILJ 1223 (LAC).
[23]
Turning to the issue of disputes of
facts, the approach to be adopted in our law is quite clear. It is
generally accepted that motion
proceedings are inappropriate in
seeking to resolve disputes where there exist genuine and material
disputes of facts in a matter.
The approach to adopt when confronted
with disputes of facts in motion proceedings has been set out in
Plascon –Evans
Paints Ltd v Van Riebeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A),
wherein
the court in dealing with this issue had the following to say:
“
It
seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some
clarification
and, perhaps, qualification. It is correct that, where in proceedings
on notice of motion disputes of fact have arisen
on the affidavits, a
final order, whether it be an interdict or some other form of relief,
may be granted if those facts averred
in the applicant’s
affidavits which have been admitted by the respondent, together with
the facts alleged by the respondent,
justify such an order. The power
of the court to give such final relief on the papers before it is,
however, not confined to such
a situation. In certain instances the
denial by respondent of a fact alleged by the applicant may not be
such as to raise a real,
genuine or bona fide dispute of facts.”
It
is clear from the above that it is not every claim of dispute of
facts that leads to the matter having to be referred to oral
evidence. In other words a claim of the existence of disputes of
facts should not be accepted on face value. There is always a
need in
particular in labour matters where speed is of the essence in the
resolution of disputes, that any allegation of disputes
of fact
should be closely scrutinized to determine whether or not indeed a
genuine dispute of facts exists. In this respect I align
myself with
the authorities that say that the court in dealing with the issue of
whether or not a dispute of facts exists or not
should adopt a robust
approach. In my view what is also of importance in dealing with this
issue is to determine whether the dispute
of facts, have any bearing
on the legal issues to be resolved.
Claim for damages
[24]
The
amount of damages to be awarded to an employee as a result of an
unlawful termination of a fixed term contract by the employer
is the
amount he or she would have received in salary but for the
repudiation of the contract by the employer. In other words the
damages in an unlawful termination of an employment contract is
calculated on the basis of what would have been due to the employee
for the unexpired period of the contract less whatever amount he or
she may have received after the termination of the contract,
constituting mitigation of his or her damages.
Evaluation
[25]
The first issue that needs to
be determined in this matter is whether or not disputes of facts have
arisen as a result of the issues
raised by the respondent in its
answering papers. If the answer is in the affirmative then the court
would have to consider whether
or not to refer the matter to oral
evidence. If the answer is in the negative, then the court would have
to determine whether or
not the respondent was in breach of any of
the terms of the contract of employment between itself and the
applicant. If it is found
that the respondent was indeed in breach of
the contract of employment then the next issue for determination
would be the determination
of the issue of damages.
[26]
As concerning the issue of disputes of
facts, it would seem to me that the issue arose from the side of the
respondent largely because
of the misconception of the cause of
action and the issues upon which that cause of action is based on. In
my view, there would
have been no difficulty in agreeing with the
point raised by the respondent, in this regard, had the applicant’s
cause of
action been based on the unfair dismissal concept. The
dispute of facts would have probably arisen largely because the
investigation
into the fairness or otherwise of a dismissal which is
much broader than the inquiry into whether or not there has been a
breach
of the terms of the contract. In my view the enquiry into
whether or not there has been a breach of contract focuses on two
aspects,
the conduct that is alleged to have constituted the breach
of the terms of the contract and the provisions of the contract in
relation
to that conduct.
[27]
The other issue which according to the
respondent has given rise to the dispute of facts concerns the
question of the extension
of the probationary period. It is common
cause that the probationary period was extended. The issue of dispute
of facts in this
regard seems to concern the reason for the
extension. The respondent’s version is that the extension was
for the purposes
of giving the applicant an opportunity to improve on
his performance. The applicant’s version is that he was told
that the
probationary period was extended because there was a break
in the three months probation he had to serve. The break in the
period
occurred apparently because the applicant took ill for some
days during that period. The applicant says that the deponent to the
opposing affidavit gave him the letter of the extension of the period
and said he should take it to Mr. Hack for approval of the
extension.
According to the applicant Mr. Hack told him that he approved
the extension and that he had no problems with his
performance.
It is important to note that the affidavit of Mr. Hack is not
attached to the respondent’s papers. The
affidavit of Mr. Hack
would have dealt with this issue. However in my view even if that was
the case as will appear later nothing
would have turned on whatever
answer he gave as to what he said to the applicant. Assuming he had
made an affidavit saying that
he told the applicant that his
performance was not up to standard, that would not have altered the
case of the respondent in as
far as the question of compliance with
the terms and conditions of the contract was concerned. The terms of
the contract were not
amended by the extension, in fact the contract
does allow for the extension of the probationary period. At the end
or prior to
the end of the month’s extension the respondent
would still have had to comply with the provisions of clause 5 of the
contract.
[28]
Although there is some dispute of facts
as to why the probationary period was extended, the undisputed fact
is that the contract
was extended for a month. The dispute as to the
reason for the extension of the probationary period is, in my view,
not material
to deny this court the ability to determine the issue at
hand. The admitted fact by the respondent is that the probationary
period
for whatever reason was extend for a month. Thus the issue at
hand as indicated above is whether in terminating the employment
contract of the applicant, the respondent complied with the
provisions of that contract. There is no doubt from even the version
of the respondent that there was no compliance with the provisions of
the contract of employment and thus the respondent breached
its
contract with the applicant.
[29]
In assessing whether or not the
conduct of the respondent repudiated the contract in terminating it
in the manner and for
the reason it did, clause 5.2 of the employment
contract is of great importance. This clause as appears from the
above quotation
indicates very clearly that the intention of the
parties was not to use the probationary period to deny the applicant
the opportunity
for a permanent employment. In other words the proper
reading of the contract is that whilst the respondent had the right
to terminate
the contract for failure to meet the standard of
performance required of the applicant, that would be done sparingly
and only after
certain processes have been complied with. One of
those processes entailed the respondent having to properly evaluate
the performance
of the applicant prior to taking a decision not to
permanently appoint him.
[30]
The principle in clause 5.2 is taken
further in clause 5.3 where it is stated that the employee will be
given reasonable evaluation,
training and counseling to afford him
the opportunity to improve on his performance. The argument of the
respondent that the applicant
was a senior manager appointed with the
understanding that he has the necessary skills is not sustainable.
The argument would have
applied had the respondent firstly conducted
the evaluation and thereafter informed the applicant that the
evaluation indicated
that he has failed in arrears where a person of
his qualification, skills and experience ought not to have had
difficulties in
meeting the standard of performance expected of him.
This would have been in line and in compliance with the provisions of
clause
5.4 of the employment contract.
[31]
There is no evidence before this court
that the respondent did advice the applicant that his performance was
below standard and
which aspects of his performance is below the
required standard of performance. The evidence presented which in
certain respect
can be regarded as common cause is that the
respondent received certain complaints about the work of the
applicant and those complaints
were brought to the attention of the
applicant. Clause 5.5 clearly indicates that the employee should be
given an opportunity to
make representation where the evaluation
properly conducted indicates that his performance was below the
required standard of performance.
[32]
In one instance, after receipt of a
complaint forwarded to him by the respondent, the applicant replied
in a letter to the respondent.
If indeed the complaint was regarded
as poor work performance then in terms of the employment contract the
respondent ought to
have followed up and indicated to the applicant
that the reply was unsatisfactory and that the issues raised in the
complaint are
related to poor work performance. On the facts as they
stand, the applicant was never given an opportunity to deal with the
complaint
and or an opportunity to improve on his performance in
terms of clause 5.4 of the employment contract. The applicant only
came
to deal with the complaints in his founding affidavit when he
launched these proceedings.
[33]
It is apparent from the reading of the
contract that the parties sought to regulate their affairs in terms
of their contract in
line with the principles and the norms set out
in the Code of Good Practice as provided for in the LRA. The
incorporation of those
principles do not however change the nature of
the inquiry into whether or not there has been a breach of contract.
They also do
not play any role in the determination of the existence
of the dispute of facts in the present matter. There seems to be no
doubt
that the contention of the respondent and the argument of Mr.
Hutchinson are informed by these principles. I have indicated earlier
that the inquiry into whether there has been a breach of a contract
is much narrower than that of investigating the fairness or
otherwise
of the dismissal.
[34]
The allegation in the present instance
is that the respondent repudiated the contract by unlawfully and
prematurely terminating
it. In as far as breach of the terms of the
contract is concerned it is alleged that the contract was cancelled
without compliance
with the provisions of that contract in particular
cause 5 thereof. Based on this analysis and focusing in particular on
the cause
of action it can never be said that disputes of facts have
arisen. In this respect it does seem common cause that there are a
number
of complaints that had been made against the applicant by an
number of people and institutions, the main question that needs to
be
answered is whether in terms of the provisions of the employment
contract submission of those complaints entitled the respondent
to
automatically terminate the employment contract. I do not think so a
closer and proper reading of the contract, in particular
clause 5
thereof indicates very clearly that the respondent needed to do more
than simply receiving and forwarding the complaints
to the applicant.
[35]
In relation to damages, the applicant
claimed damages in the full amount of what he would have received in
salary had the respondent
not terminated the employment contract
which is in the sum total of R1 860 000, 00.
[36]
On the 3
rd
June 2010, Francis J postponed the matter sine die to afford the
parties to file further affidavits. It would seem one of the reasons
for granting leave to file further affidavits was to afford the
applicant to deal with an issue which was raised in the respondent’s
heads of argument concerning the alleged failure to mitigate damages
by the applicant. The applicant has now filed his further
affidavit
wherein he deals with the issue of mitigating damages. The respondent
has not filed any further affidavit in response
to the applicant’s
further affidavit. There is therefore no reason to doubt this
evidence in the absence of any challenge
thereof by the respondent.
[37]
In the further affidavit the applicant
indicates that after his dismissal he obtained employment during
March 2010 and was paid
a salary of R26 000,00 per month. The new
employment of the applicant was terminated during May 2010.
Taking into account
the amount he has earned since his dismissal the
applicant says his damages amount to R1 777 000, 00. he had
received since
his dismissal
[38]
In summary, I find the following:
a.
Regard being had to the cause of action
in this matter, there are no disputes of facts in relation to the
breach of the contract
of employment. The respondent would probably
have succeeded in raising the dispute of facts had the applicant
based his case of
the unfair dismissal claim. It also needs to
be pointed out that even those facts that appear to be in dispute,
they are
not material to the determination of the legal issues before
this court.
b.
The respondent in terminating the
employment contract of the applicant failed to comply with its duties
as set out in the provisions
of the employment contract in particular
clause 5 thereof. The conduct of the respondent in the manner in
which it terminated the
contract of employment with the applicant
amount to repudiation and material breach of that contract. Put
simply, the respondent
failed to do those things it was required to
do in terms of clause 5 of the contract of employment.
c.
The applicant has as a result of the
unlawful conduct of the respondent suffered damages. The applicant
has in compliance with the
law taken all reasonable steps to mitigate
his damages.
[39]
In the light of the above, the applicant
has made out a case of breach of contract and damages. I see no
reason in the circumstances
of this case why in law and fairness
costs should not follow the results.
[40]
In the premises the following order is
made:
1.
The decision of the respondent to
terminate the applicant’s contract on 23
rd
November 2009 was unlawful.
2.
The termination of the contract
amounts to breach of contract.
3.
The respondent is ordered to pay
the applicant in the amount of R1 777 000, 00 as damages occasioned
by the unlawful repudiation
of the contract of employment of the
applicant.
4.
The respondent is to pay the
costs of this application.
______________________________
MOLAHLEHI
J
Judge
of the Labour Court
Date of hearing:
17 September 2010
Date of judgment:
17
December 2010
Representatives:
For the applicant:
Adv FA Boda
Instructed by:
Eversheds
For the respondent:
Adv W Hutchinson
Instructed
by:
Fluxmans Inc
[1]
In
terms of s
77
(3) of the BCEA the Labour Court has concurrent jurisdiction
with the civil courts to hear and determine any matter concerning
a
contract of employment, irrespective of whether any
basic
condition of employment constitutes a term of that contract.
[2]
In
terms of s185 of the LRA every employee has the right not to be
unfairly dismissed and or subjected to unfair labour practice.
The
word dismissal is defined in s186 of the LRA to mean ‘
termination
of a contract of employment with or without notice.’
In
the broader consideration of this case, the other aspects of the
definition, seems irrelevant assuming this case was lodged
as an
unfair dismissal claim.