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[2011] ZALCJHB 58
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Solidarity obo Wehncke v Surf4Cars (Pty) Ltd (JS 892/08) [2011] ZALCJHB 58; [2011] 10 BLLR 1007 (LC); (2011) 32 ILJ 3037 (LC) (13 July 2011)
LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN)
Case: JS 892/08
In the matter
between:
SOLIDARITY obo JA
WEHNCKE
…................................................................
Applicant
and
SURF4CARS (PTY) LTD
….................................................................
First
Respondent
JUDGMENT
LAGRANGE, J:
This
is an application for a default judgment. The applicant claims that
his dismissal by the respondent on 2 June 2008 was
automatically
unfair in terms of section 187(1)(c) of the Labour Relations Act,
66 of 1995 (‘the LRA’). He claims
he was dismissed in
order to compel him to accept a demand in respect of a matter of
mutual interest.
The
demand in issue relates to the respondent employer’s
dismissal of the applicant for failing to sign a written contract
of employment which contained a term the applicant objected to. The
offending term related to a condition attached to his use
of a
company vehicle as part of his remuneration package. In his
statement of claim he claims that he commenced employment
with the
respondent on 1 November 2007 as a data Capturer/Photographer after
concluding an oral agreement the previous month.
One of the terms
of that oral agreement was that he would be given the use of a
company vehicle.
However,
when he requested a written contract recording what had been
agreed, the version he finally received in March 2008,
contained a
provision he had not agreed to. The full provision reads:
“
Your
package will include the use of a company vehicle.
I
must advise you that should you have any accident, in the vehicle,
you will be responsible for the excess amount.
”
(emphasis added)
The
applicant claims the emphasised portion of the above provision had
never been part of the oral agreement. Consequently,
he would not
sign the written agreement. On 29 April 2008, the applicant sent a
letter to the employer regarding what he describes
as the ‘Proposed
employment contract’. In it he recorded, his dissatisfaction
with the contract, without providing
further details about his
reasons for saying so. Interestingly, in the letter he does not say
that the written contract was
contrary to what had been orally
agreed, as might have been expected given his claim that the letter
changed the terms of that
agreement. Instead he says:
“
It
would not be in my best interest to agree to the terms as set out in
the proposed employment contract dated 01 April 2007.”
In
his letter of termination issued on 2 June 2008, the employer
recorded that he had failed to sign the contract and that in
the
circumstances he could no longer be allowed to use the company car,
whereas his use of a branded company vehicle was an
essential part
of his duties due to the marketing component of his work. It is
evident from the applicant’s own description
of his duties
that he would be spending some time on the road in the course of
performing his duties and driving a branded
vehicle would have
served the firms’ marketing goals. Be that as it may, the
employer also stated in the letter that:
“
It
is company policy that company motor vehicles can not be used by
employees whether on probation or not without acceptance of
the
terms and conditions for the use thereof
”
(
sic
)
The
applicant did not dispute that the condition mentioned was part of
the employer’s policy on company vehicles.
The
legal considerations
Section
187(1)( c) of the LRA states:
'
A dismissal is
automatically unfair if the employer, in dismissing the employee,
acts contrary to section 5 or, if the reason
for the dismissal is -
. . .
(c) to compel the
employee to accept a demand in respect of any matter of mutual
interest between the employer and employee.
'
The
interpretation of the section was considered by the Labour Appeal
Court and the Supreme Court of Appeal in the
Fry’s
Metals
case.
1
The SCA concurred with
the LAC on the narrow circumstances in which the reasons for a
dismissal would fall within the ambit
of section 187(1)(c). The SCA
identified the central characteristic of a dismissal falling within
the section thus:
“
[55]
In the LAC, Zondo JP implicitly - and in our view correctly -
rejected the 'migration' approach. He considered that the
construction of s 187(1)(c) should start with the meaning of
'dismissal' as it appears in s 186(1)(a) . Section 186(1) defines
'dismissal' as meaning, inter alia, that '(a) an employer has
terminated a contract of employment with or without notice'.
The learned Judge
President concluded that there was a difference between a dismissal
as defined in s 186(1) and a dismissal as
contemplated by s
187(1)(c) . The two categories do not overlap. A s 187(1)(c)
dismissal must be effected 'for the specific purpose
given in s
187(1)(c) and that purpose is absent in an ordinary dismissal such
as is defined in s 186(1)(a) '. Zondo JP expanded
(para 31):
'[T]here is a
distinction between a dismissal for a reason based on operational
requirements and a dismissal the purpose of which
is to compel an
employee or employees to accept a demand in respect of a matter of
mutual interest between employer and employee.
The distinction
relates to whether the dismissal is effected in order to compel the
employees to agree to the employer's demand
which would result in
the dismissal being withdrawn and the employees being retained if
they accept the demand or whether it
is effected finally so that, in
a case such as this one, the employer may replace the employees
permanently with employees who
are prepared to work under the terms
and conditions to meet the employer's requirements.
'
[56]
The
LAC's solution to the conundrum of the statutory concepts was thus
to assign a distinctive meaning to 'dismissal' in s 187(1)(c),
and
then to restrict this category of automatically unfair dismissals to
those effected for the purpose of inducing employees
to change their
minds regarding the employer's demand. On this approach, only
conditional dismissals can fall under s 187(1)(c)
,
and it is this that distinguishes them from the broader category of
dismissals where the employer - irreversibly - 'has terminated'
the
employment contract.
Dismissals
intended to be and operating as final - not, in other words,
reversible on acceptance of the demand - can thus never
have as
their reason 'to compel the employee to accept' that demand
.
They will therefore not be automatically unfair. In such cases, the
only factual enquiry confronting a court is the employer's
reason
for effecting the dismissal: once compulsion to accept the disputed
demand (with ensuing reversal of the dismissal) is
excluded, no
further enquiry into the nature or categorization of the demand is
required.
…
[59] In our view
neither s 187(1)(c) nor the collective bargaining structure of the
statute as a whole contemplates the 'migration'
of disputes from one
part of the LRA's taxonomy to another.
Nor
can we accept the union's contention that the category of dismissals
protected by s 187(1)(c) must be more expansively construed
than the
LAC found
.
”
2
(emphasis
added)
In
Fry’s Metals
the courts were grappling with the
distinction between a dismissal for operational reasons and a
dismissal to compel employees
to comply with a demand. In this
instance, the issue is whether the employer was threatening the
applicant with dismissal in
order to get him to accept a new term
of employment (the condition attached to the use of the company
vehicle) or whether it
was simply insisting that he comply with the
existing company policy which required employee’s to accept
responsibility
for any excess amount due in terms of the vehicle
insurance, in the event of an accident.
In
order to succeed the applicant needed to demonstrate on a balance
of probabilities that the first scenario described his
circumstances. However, even though the matter is unopposed, his
own initial written response to the request to sign the contract
of
employment does not suggest that his problem was that the employer
was imposing a new term which had not previously been
agreed upon.
Secondly, the employer’s description of the conditions of
company car usage tends to support the interpretation
that it was
already part of existing company policy and not an amendment of it.
Thirdly,
even if the conditions attaching to company car usage had amounted
to an alteration of the applicant’s orally
agreed terms of
employment, his dismissal was not conditional in the narrow sense
meant by the SCA in
Fry’s Metals
. Nothing in the
applicant’s statement of case, as confirmed on affidavit,
shows that the respondent made it clear that
he would be reinstated
if he signed the contract. Likewise, the minutes of meetings which
the applicant provided only go to
show that from January 2008 he
had been asked to sign a contract and that he had indicated he was
not satisfied with some of
the provisions. The minutes do not
reveal that the contentious provision was a new condition of
employment he was being asked
to agree to, which was contrary to
what had been agreed to orally.
Rather,
the limited evidence tends to show that the decision to dismiss the
applicant was a final decision because he would
not agree to the
contract, not in order to compel him to submit to the employer’s
will on the contentious term.
Conclusion
Consequently,
I am satisfied, following the reasoning in
Fry’s
Metals
that the applicant has failed to
satisfy me on a balance of probabilities that the reason for his
dismissal was to compel him
to comply with a demand to amend his
terms of employment and accordingly the reason for his dismissal was
not automatically unfair
in terms of section 187(1)(c ).
Order
Consequently,
the following order is made –
The
application is dismissed
There
is no order of costs.
R LAGRANGE, J
JUDGE OF THE LABOUR
COURT
Date of hearing: 11
May 2011
Date
of judgment: 13 July 2011.
Representation
-
For
the Applicant: A J van der Bijl of Solidarity
For
the Respondent: No appearance
1
National
Union of Metalworkers of SA & Others v Fry’s Metals (Pty)
Ltd
(2005) 26
ILJ
689 (SCA)
and
Fry's Metals (Pty) Ltd v National Union of Metalworkers of SA
(2003)
24
ILJ
133 (LAC).
2
At
708-709 of the SCA judgment.