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[2010] ZALCCT 26
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Ebrahim and Others v Sans Fibres (Pty) Ltd (C495/2008) [2010] ZALCCT 26 (23 July 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
Case
No. C495/2008
Reportable
In
the matter between:
IVAN
EBRAHIM
First
Applicant
GERALD
JOSHUA
Second
Applicant
DEREK
WYNGAARD
Third
Applicant
WILLIAM
JANSEN
Fourth
Applicant
FINDLAY
PEARCE
Fifth
Applicant
And
SANS
FIBRES (PTY)
LIMITED
Respondent
JUDGMENT
GUSH,
J.
1.
In this matter the Applicants, relying on
Section 77(3) of the BCEA applied to this court for order declaring
that in terms of their
contracts of employment they were entitled to
be paid a severance package in accordance with the Respondent’s
“
Retrenchment/Redundancy Policy”.
2.
The Applicants had all been employed by the
Respondent in its IT Department prior to their retrenchment in 2008.
When they were
retrenched they were paid severance benefits in
accordance with the provisions of section 41 of the Basic Conditions
of employment
Act 75 of 1997 (BCEA). At the time of their
retrenchment all the Applicants had been employed in accordance with
the same contract
of employment. The Applicants’ claim was
based on their averment that on a proper interpretation of this
contract they were
entitled to the benefits of an enhanced severance
package in accordance with the Respondent’s
“
Retrenchment/Redundancy Policy”
.
3.
At the commencement of the trial the
parties, helpfully, filed an “Agreement in Regard to Trial
Issues” which agreement
recorded that:
“
1.
The issues in dispute are:
1.1
Whether a retrenchment policy applied to the applicants.
1.2
If so,
1.2.1.
Which retrenchment policy applies’ and
1.2.2. How the
applicant’s severance packages are to be calculated in terms of
such policy.
2.
In the event that the Court finds that a severance policy applies to
the applicants,
2.1
it shall apply for the entire periods of the applicants’
service as used by the respondent for
the calculation of their BCEA
packages, and
2.2
the Parties shall be given 21 days from the date of judgment to agree
on the calculation of the amounts
due to them, failing which the
matter shall be placed on the roll to be determined by the Court.
3
The document on pages 4 to 6 of Bundle A is the contract that applies
to all the applicants in the
relevant respects”
4.
The Applicants were, at all times relevant
to this matter, known and referred to as “contract employees”
and their contract
differed from the contracts of employment of
the other employees of the Respondent. The other employees were known
and referred
to as “payroll employees” “staff
employees” or “permanent employees” as opposed to
“contract
employees”. In his evidence the First
Respondent explained that the Applicants had been referred to as
“FTC’s”
or “fixed term contractors”,
although the contract was not a fixed term contract.
5.
The Applicants based their claim purely on
what they averred was a contractual entitlement to the enhanced
retrenchment benefit,
or as it was described in the Respondent’s
“
Retrenchment/Redundancy Policy”,
an “ex gratia payment”.
6.
The Applicants claim is dependent firstly
upon proving that the following clauses in their contracts of
employment viz:
“
The
terms and conditions of your employment are in accordance with the
Basic Conditions of Employment Act … and as set out
hereunder…”
and
“
Your
employment is subject to the Company’s Code of Conduct and
AECI’s Code of Ethics, relevant Company Rules and Procedures
as
set out on the SANS intranet. …”
being
interpreted to mean that they fell within the category of employees
who were entitled to the benefit of the Respondent’s
“
Retrenchment/Redundancy Policy”
,
and secondly which retrenchment policy applied or in other words what
were the terms of the applicable retrenchment policy. Whilst
the
parties did not deal with the onus in the pre trial minute but merely
recorded that the Applicants would begin there is no
doubt that the
Applicants bore the onus to prove that their contracts entitled them
to the benefits of a retrenchment policy and
what the terms or
benefits of that policy were.
7.
The background to the Applicants’
status as “contract employees” was that during the course
of their employment
all the Applicants had elected to change the
nature of their employment relationship with the Respondent by
becoming what they
described as “contract employees”. The
First and Third Applicants were originally employed by the Respondent
prior
to 2002 as a “payroll employee” and a “salaried
employee” respectively. The Applicants’ evidence was
that
the First and Third Applicants had prior to 2004 elected to become
independent contractors. In 2004 due to changes in the
labour
legislation they had entered into the current contract which had been
amended to accommodate these changes in the legislation.
The Second
Fourth and Fifth Respondents had been “salaried employees”
prior to becoming “contract employees”
when they signed
new contracts of employment in August 2005, February 2006 and March
2006 respectively. These contracts were the
same contracts that the
First and Third Applicants had signed.
8.
The Applicants explained that the reasons
for having chosen to become “contract employees” and
therefore enter into
the specific contracts was that firstly the
contract allowed them greater flexibility in their working conditions
which specifically
included the right to work for other persons for
their own benefit whilst still contracted to the Respondent; and
secondly it gave
them greater flexibility in the way in which their
remuneration was calculated and paid. Their remuneration based on an
hourly
rate for work actually performed and the Respondent did not
make any deductions for either medical aid or retirement funding.
They
were to be responsible for their own provision for medical aid
and retirement.
9.
The Respondents maintained that the
contract signed by the Applicants specifically and intentionally
excluded any reference to a
retrenchment policy and therefore did not
entitle the Applicants to an enhanced severance benefit. It was for
that reason that
the contract referred expressly to the BCEA and
excluded any reference to policies. The contract, according to the
Respondent,
intentionally referred to the BCEA and accordingly the
Applicants were only entitled to the benefits of provided for in
Section
41 of the BCEA. The Respondent further averred that not only
was the policy that the Applicants relied upon, not applicable to
“contract employees” but in any event it was not the
relevant policy in force at the time that the retrenchments took
place in February 2008.
10.
All the Applicants gave evidence. Whilst
their evidence differed in certain non material respects what was
common cause their evidence
was the fact that the time each one had
elected to enter into the contract they had not discussed their
entitlement to any severance
package and specifically not canvassed
whether or not such a policy applied to contract employees. The First
Respondent said that
he was never told that the retrenchment policy
would not apply, nor had he discussed the relevance of the
significance of the absence
of any reference to “policies”
in the contract. The Second Respondent’s evidence was that he
didn’t think
at the time that he would lose his retrenchment
benefits although the issue was not canvassed. Third Respondent was
refreshingly
candid and said that whilst he had noticed the reference
to the BCEA he had not considered its relevance. Neither had he
considered
whether he was entitled to the benefits of a retrenchment
policy prior to retrenchment process commencing. In similar vein the
Fourth Respondent said he was not aware that he would lose any
benefits and at the time of signing the contract did not think about
retrenchments. Likewise the Fifth Respondent did not consider the
implications of being retrenched as a contract employee at the
time
of signing his contract and that it was only when the retrenchment
process commenced that he considered the issue and the
applicability
of the retrenchment policy.
11.
The Applicants confirmed firstly that the
purpose of the contract was to allow them to perform services for
reward for other entities
and that the Respondent would therefore
only pay them for the actual hours that they worked for the
Respondent. Secondly that the
basis of the calculation of their
hourly rate gave them greater financial flexibility. The new contract
provided that their remuneration
structure, unlike the Respondent’s
salaried employees, was purely an hourly rate and apart from
complying with the required
statutory deductions such as income tax
the Respondent did not make any other deductions, such as for
retirement funding or for
medical aid membership.
12.
The Applicants maintained that when it
became clear that a retrenchment process was about commence they had
referred to the policies
which appeared on the Respondent’s
intranet and concluded that they were, by virtue of their contracts
of employment entitled
to the benefits of the
“
Retrenchment/Redundancy Policy”
and in particular the “ex gratia payment”. It appears
however from the documentation contained in the agreed joint
bundle
that the Applicants only raised the issue at the time of the
consultation process and the issuing of retrenchment letters
in
January and February 2008. At that time the Applicants were
apparently relying on fairness as opposed to a contractual
entitlement
to the benefit of the policy.
13.
The Applicants were aware of the fact
that their contract, unlike the contracts of the salaried employees
referred specifically
to the BCEA. First Applicant, in an email to
the Respondent during the retrenchment process in February 2008,
confirmed that the
Applicants were
““
contract
employees” – regulated by the BCEA”
and
recorded that:
“
We
understand that our conditions of employment are regulated by the
BCEA, but also, that this defines the bare minimum that the
company
is legally entitled to pay out as a severance package under the
prevailing circumstances. Comparing employee Categories
1[Payroll
Employee] and 2 [Staff Employee] below, one of the few common
conditions of employment is the application of the SANS’
Retrenchment Policy – specifically the Ex- Gratia Payment
Model. By excluding Category 3 [Contract Employees- the Applicants],
your stance is hardly “fair to all our employees” in our
view”
14.
Two witnesses gave evidence on behalf of
the Respondent. The first witness had been a senior member of the
Respondent’s IT
department where all the Applicants had worked
and too was no longer employed by the Respondent. He had been the
pioneer and architect
of the independent contracting arrangement
adopted by the Respondent to accommodate the IT employees. He was of
the opinion that
as an independent contractor he had not been
entitled to severance benefits and when the contract was changed, in
2004, he regarded
the entitlement to the benefits of the BCEA and in
particular the severance pay to have been a bonus. He was adamant
that it was
never intended that the contract employees’
contract would include the “
Retrenchment/Redundancy
Policy”
and therefore they were
not entitled to the “ex gratia payment”.
15.
The Respondents second witness, also
an erstwhile employee of the Respondent, had been employed in the
Human Resources Department
as a human resource consultant. She
explained that the terms and conditions of the contract employees
were materially different
from the payroll and staff, or salaried
employees. These differences included that the Applicants contracts
were specifically subject
to the BCEA as distinct from the more
favourable conditions enjoyed the salaried employees; they were not
paid a set monthly salary
but were paid per hour only for each hour
actually worked; and they were not confined to rendering services to
the Respondent only
but were entitled to perform services for reward
for other employers. She also explained that the Respondent’s
retrenchment
policy changed with each retrenchment process and that
most certainly the policy in force at the time of the retrenchment of
the
Applicants did not apply to them. She endeavoured to explain what
changes had been made to the policies over the period in question.
She averred that the Applicants’ contracts specifically
excluded the Respondents retrenchment policies. In particular she
explained that the intranet policy which was available on the
intranet at the end of October 2007 was not applicable to the 2007/8
retrenchments. The Respondent had amended it in anticipation of the
commencement of the consultation process but that it also
specifically excluded the Applicants.
16.
The Applicants remained adamant that the
applicable policy was that which was available on the Respondent’s
intranet at the
end of October 2007 policy and that this policy
should have been applied to their retrenchment in calculating their
severance pay.
17.
The policy which appeared on the
Respondent’s intranet set out in detail how the “ex
gratia payment” was to be
calculated. The calculation was based
on a determination of the employees “normal remuneration”
or “retirement
funding remuneration” to which a specific
formula was applied. The “
Retrenchment/Redundancy
policy
” specifically provided
that the basis of the enhanced benefit calculation was “normal
remuneration” whereas the
Applicants’ contracts did not
provide for “normal remuneration” but only stipulated an
hourly rate for services
actually rendered.
18.
Both the Applicants’ and the
Respondent’s witnesses gave evidence regarding whether or not
it was possible to apply
the formula set out in the
“
Retrenchment/Redundancy Policy”
to the Applicants’ contract
in order to calculate the quantum of the “ex gratia payment”.
19.
The Respondent’s evidence was that
the policy could not be applied as it required as a fundamental basis
for the calculation
the determination of a retrenchees “normal
remuneration” or “retirement funding remuneration”.
The Respondent’s
argument was that as the Applicants were
employed on an hourly rate only for hours actually worked and that as
they were able to
tailor their working hours to suit their personal
requirements which included the right to perform services for reward
elsewhere
for outside entities, they did not work set hours and
therefore it was not possible to determine what their “normal
remuneration”
was. They did not receive “normal
remuneration”, as opposed to the salaried employees.
20.
The Applicants maintained that it was
possible to determine their normal remuneration. In support thereof
they referred to a document
in the bundle headed “
HOURLY
PAID (PAYROLL AREA 4)
Remuneration
Package Specification – Post Restructuring) Rev 1a of
04-01-30).
[The Applicants
fell under the category “
HOURLY
PAID (PAYROLL AREA 4)”
] This
document included a clause headed “
Normal
Remuneration (NR)
”. The
Applicant’s suggested that this was evidence that the
Applicants did in fact receive “normal remuneration”
and
that accordingly it was possible to establish what each Applicant’s
“normal remuneration” was. The Respondents
answer to this
submission was that the reference to “normal remuneration”
was merely a reference to a figure used in
the calculation of the
Applicants’ hourly rate.
21.
A careful consideration of the clause
itself does not support the Applicants’ contention. The wording
and context of the clause
supports the Respondent’s explanation
that the reference to “normal remuneration” in the
document was a reference
to a notional figure used to establish the
hourly rate to be included in each individual contractor’s
contract.
22.
The evidence regarding which was the
relevant and applicable policy and whether or not it could be applied
is, however, only relevant
if a “
Retrenchment/Redundancy
Policy”
applied to the
Applicants’ contracts and that they were contractually entitled
to the enhanced benefit.
23.
The parties agreed in the “Agreement
in Regard to Trial Issues” that the primary issue to be decided
was “
whether a retrenchment policy
applied to the applicants”,
and
in argument confirmed that the only basis for determining this issue
was by having regard to the contract itself and the interpretation
thereof in order to ascertain whether or not a retrenchment policy
constituted a term and condition of the contract. The Applicants
did
not rely on any of the provisions of the Labour Relations Act (LRA)
regarding retrenchments nor did they allege unfairness
in the process
adopted by or the decision of the Respondents. Surprisingly, it was
not the Applicant’s case that the Respondent
had unfairly
refused to pay them the “ex gratia payment” but they
chose to rely solely on a contractual entitlement
to the enhanced
package.
24.
The relevant clauses of their contracts
are:
“
The
terms and conditions of your employment are in accordance with the
Basic Conditions of Employment Act (hereinafter “The
Act”)
and as set out hereunder.
…
General
...
7.3
Your employment is subject to the
Company’s Code of Conduct and AECI’s Code of Ethics,
relevant Company Rules and Procedures
as set out on the SANS
intranet. …”
25.
The parties were at idem that in answering
the first question viz “
Whether a
retrenchment policy applied to the applicants”
was dependent solely upon the interpretation of the Applicants’
contract and in so doing it was required to apply the parol
evidence
rule
26.
In DELMAS MILLING CO LTD v DU PLESSIS
1955
(3) SA 447
(A) the court in dealing with the parol evidence rule held
the following:
“
Where
although there is difficulty, perhaps serious difficulty, in
interpretation but it can nevertheless be cleared up by linguistic
treatment this must be done. The only permissible additional evidence
in such cases is of an identificatory nature; such evidence
is really
not used for interpretation but only to apply the contract to the
facts. ... If the difficulty cannot be cleared up with
sufficient
certainty by studying the language, recourse may be had to
'surrounding circumstances' i.e. matters that were probably
present
to the minds of the parties when they contracted (but not actual
negotiations and similar statements). ... But this does
not mean that
if sufficient certainty as to the meaning can be gathered from the
language alone it is nevertheless permissible
to reach a different
result by drawing inferences from the surrounding circumstances.
Whether there is sufficient certainty in
the language of even very
badly drafted contracts to make it unnecessary and therefore wrong to
draw inferences from the surrounding
circumstances is a matter of
individual judicial opinion on each case. (page 454 F to 455 B)
27.
This approach has consistently been applied
in our law. See
TOTAL SOUTH AFRICA (PTY)
LTD v BEKKER NO
[1991] ZASCA 183
;
1992 (1) SA 617
(A)
“
What
is clear, however, is that where sufficient certainty as to the
meaning of a contract can be gathered from the language alone
it is
impermissible to reach a different result by drawing inferences
from the surrounding circumstances ... The underlying
reason for this
approach is that where words in a contract, agreed upon by the
parties thereto, and therefore common to them, speak
with sufficient
clarity, they must be taken as expressing their common
intention.”(page 624 I to 625 A)
and
KPMG CHARTERED ACCOUNTANTS (SA) v SECUREFIN LTD AND ANOTHER
2009
(4) SA 399
(SCA)
First,
the integration (or parol evidence) rule remains part of our law.
However, it is frequently ignored by practitioners and
seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence may
not
contradict, add to or modify its meaning (Johnson v Leal
1980 (3) SA 927
(A) at 943B). Second, interpretation is a matter of
law and not of fact and, accordingly, interpretation is a matter for
the court
and not for witnesses (or, as said in common-law
jurisprudence, it is not a jury question: Hodge M Malek (ed) Phipson
on Evidence
(16 ed 2005) paras 33 - 64). Third, the rules
about admissibility of evidence in this regard do not depend on the
nature
of the document, whether statute, contract or patent (Johnson
& Johnson (Pty) Ltd v Kimberly-Clark Corporation and
Kimberly-Clark
of South Africa (Pty) Ltd 1985 BP 126 (A) ([1985]
ZASCA 132 (at www.saflii.org.za)). Fourth, to the extent that
evidence
may be admissible to contextualise the document
(since 'context is everything') to establish its factual matrix or
purpose or for
purposes of identification, 'one must use it as
conservatively as possible' (Delmas Milling Co Ltd v Du Plessis
1955
(3) SA 447
(A) at 455B - C). The time has arrived for us to accept
that there is no merit in trying to distinguish between ‘background
circumstances' and 'surrounding circumstances'. The distinction
is artificial and, in addition, both terms are vague and
confusing.
Consequently, everything tends to be admitted. The terms 'context' or
'factual matrix' ought to suffice. (See Van der
Westhuizen v Arnold
2002 (6) SA 453
(SCA) ([2002]
4 All SA 331)
paras 22 and 23, and
Masstores (Pty) Ltd v Murray & Roberts Construction (Pty) Ltd and
Another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA) para 7.) (page 409 F to 410
B)
28.
It was clear from the evidence that the
Applicants’ contracts differed significantly from the standard
salaried employee contract
(“standard contract”. Some of
these differences are material in interpreting the meaning of the
Applicants contract.
They serve to place the Applicants contracts in
“
context
”.
These differences are:
24.1.
The applicants’ contracts provide that “
The terms and
conditions of your employment are in accordance with the Basic
Conditions of Employment Act”,
whereas there is no similar
provision in the “standard contract”;
24.2.
The Applicants’ contracts are made “
subject to the
Company’s Code of Conduct and AECI’s Code of Ethics
,
relevant Company Rules and Procedures
as set out on the
SANS intranet.”,
whereas the “standard contract”
is subject to “
Company
Policies
and Procedures and the company rules
...”
(My
emphasis);
24.3
The “standard contract” contains a clause which deals
with avoiding conflict of interest
and prohibits the employee from
performing work for remuneration outside the service with SANS
without prior permission whereas
according to the Applicants’
their contracts were specifically designed to ensure that they could
perform outside work for
remuneration; and
24.4.
The “standard contract” refers specifically to “
normal
remuneration
” whereas the
Applicants’ contracts specify under the heading “Remuneration”
that they would be paid at
a rate “
per
hour of service rendered to the Company”
29.
In the light of these differences and
having regard to the parol evidence rule the meaning of the words
used in the Applicants’
contracts is clear. As was held in
TOTAL SOUTH AFRICA (PTY) LTD v BEKKER NO
(supra)
“
where
sufficient certainty as to the meaning of a contract can be gathered
from the language alone it is impermissible to reach
a different
result by drawing inferences from the surrounding
circumstances”
30.
The inclusion of the reference to the BCEA
in the Applicants’ contracts (given its omission from the
“standard contract”)
can only be interpreted to mean
exactly what it says viz that the that the
terms
and conditions of ... employment are in accordance with the Basic
Conditions of Employment Act”.
It
matters not that this act only regulates minimum standards; the
clause in the contract simply makes those minimum standards
applicable to the Applicants. If there was an agreement to improve
those minimum conditions then the contract would have expressly
provided for more favourable conditions. The Respondents
“
Retrenchment/Redundancy policy
”
provided for a substantial enhancement of the severance benefit for
those to whom it applied and being more favourable would
apply as
provided for in Section 4(c) of the BCEA.
31.
The question which then arises is whether
the clause viz “
Your employment is
subject to the Company’s Code of Conduct and AECI’s Code
of Ethics, relevant Company Rules and Procedures
as set out on the
SANS intranet.”
can be
interpreted to mean that the enhanced benefit of the
“
Retrenchment/Redundancy policy
”
was part of their contracts and that accordingly their contracts
contained a term which was “
more
favourable to [them] than the basic condition of employment”
Section 4(c) of the BCEA.
32.
The Applicants’ contracts are
distinguishable from the “standard contract” in that
unlike the “standard
contract” it makes no reference to
“policies” but only to “rules and procedures”.
It was not suggested
at any stage that the parties had by common
mistake omitted the reference to “policies”. In those
circumstances the
only conclusion that can be drawn is that the
parties had intentionally left out the reference to “policies”
and that
in so doing intended that the contract would not be subject
to any of the Respondent’s policies.
33.
The Applicants contended that on the
Respondents intranet the Respondent drew no express distinction
between “rules”,
“procedures”, “codes”,
“guidelines” and “policies”. It was further
argued that
certain policies did in fact apply to the Applicants and
accordingly the “
Retrenchment/Redundancy
policy
” should apply. The
difficulty with this argument is that the court is simply required to
apply the parol evidence rule’
in interpreting the contract and
this evidence relating to the application of other policies by the
Respondent to the Applicants
despite the specific exclusion of
a reference to policies in the contract amounts to evidence of
“surrounding circumstances”
and is therefore
inadmissible. It is not evidence that can be said to “
contextualise
the document (since 'context is everything') to establish its factual
matrix or purpose or for purposes of identification...”
DELMAS
MILLING CO LTD v DU PLESSIS (Supra).
34.
What is admissible, in that it is relevant
to “contextualise” the contract, is the evidence
surrounding background to
the contract and in particular the
difference between the “standard contract” and the
Applicants’ contract dealing
with an employee’s
obligation to the Respondent. The evidence established firstly that
the contracts signed by the Applicants
were designed specifically to
provide flexibility in both remuneration and to relieve the
Applicants of the usual employee’s
obligation to provide
services exclusively to the employer and in accordance with laid down
specific working hours. This is to
be contrasted with the specific
terms set out in the “standard contract”. The import of
this, in contrast with the
“standard contract” is that
the Applicants were paid only when they rendered services to the
Respondent as opposed
to receiving a set monthly salary or “normal
remuneration” in exchange for rendering services exclusively to
the Respondent
during fixed working hours. The Respondent’s “ex
gratia payment” was paid “…
in
recognition and appreciation of the employee’s service
contribution to the Company.”
and
was calculated by reference to length of service. In the Applicants’
case it is unclear as to how their length of service
would be
calculated in these circumstances.
35.
In considering whether, in the context of
severance pay, the retrenchment policy was applicable to the
Applicants were, it is relevant
that the ex gratia payment
constituted but a part of the severance benefit payable to employees
when retrenched. Under the heading
“
10.1
Retrenchment”,
in the policy the
Applicants aver is a term and condition of their contract, the
benefits to which employees are entitled are listed.
In each instance
the benefit to which the retrenched employee is entitled, couples the
ex gratia payment with the employee’s
entitlement to the
benefits arising from their membership of either the pension or
provident fund. It must be noted that one of
the express purposes of
the Applicants in becoming contract employees was to avoid the
obligation to be members of the Respondents
retirement funds so that
they could enjoy the freedom to provide for their retirement as they
saw fit. Accordingly none of the
Applicants were members of either
fund and would not have been entitled to the entire severance benefit
as recorded in the policy.
36.
In so far as the retrenchment policy
referred to and required as a basis for the determination of an
employee’s ex gratia
payment, the quantam of the employees
“
normal remuneration
”
it is relevant that the Respondent’s “
standard
contract”
specifies exactly what
the employees “
normal
remuneration
” and “
retirement
funding remuneration
” is, as
opposed to the Applicants’ contract which stipulates only an
hourly rate. If the Applicants’ remuneration
was
considered “
normal remuneration
”
their contracts would have said so.
37.
I am therefore satisfied that as “
there
is sufficient certainty in the language of ... [the] contracts”,
given the express omission of any
reference to the contract being subject to the Respondent’s
policies and the differences
between the Applicants’
contracts and the Respondents “
standard
contract”
the Applicants were not
contractually entitled to the benefits of the Respondents
“
Retrenchment/Redundancy policy
”,
in whatever form as the policy did not constitute a term and
condition of their employment. Therefore the answer to the
first
issue to be determined viz “
Whether
a retrenchment policy applied to the applicants”
is
no.
38.
Both the Applicants and the Respondent led
extensive evidence regarding the actual policy that was applicable at
the time. This
evidence is only relevant if it was necessary to
determine which policy applied. As the applicants’ had elected
to rely solely
on their contractual rights, issues of fairness are
irrelevant. The fairness (or lawfulness) of the conduct of the
Respondent,
the niceties of the distinctions they sought to apply
between the various retrenchment policies and the questions
surrounding their
right of the Respondent to unilaterally
change its policies may have been relevant had the dispute been
differently framed.
However as the dispute was confined to an
interpretation of the contract and as the contract did not provide
for a right to the
benefits of a retrenchment policy this evidence is
irrelevant.
39.
Having found that no retrenchment policy
applied to the applicants the balance of the issues to be decided
fall away. In the circumstances
I make the following order:
The
Applicants’ application is dismissed with costs
____________
GUSH,
J.
Date
of Hearing
: 10
th
-
11
th
March and 10
th
- 11
th
May 2010
Date
of Judgment
: 23
rd
July 2010.
Appearances
For
the Applicants
:
Advocate P Kantor,
Instructed
by
:
Irish Inc
Attorneys.
For
the Respondent :
A Niewoudt of Deneys
Reitz Inc.