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[2011] ZALCJHB 77
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De Villers v The Premier/ Eastern Cape Provincial Government and Another (J 905/2010) [2011] ZALCJHB 77; [2011] 12 BLLR 1187 (LC); (2012) 33 ILJ 382 (LC) (31 August 2011)
BHOOLA J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J 905/2010
Reportable
In the matter between:
M.C. De Villiers
…...............................................................................................
Applicant
and
The Premier / Eastern
Cape Provincial Government
….........................
First
Respondent
The MEC: Transport,
Safety & Liaison (Eastern
Cape Provincial
Government)
….......................................................
Second
Respondent
Date of hearing: 23
August 2011
Date of judgment: 31
August 2011
JUDGMENT
BHOOLA J:
Introduction
[1] The applicant
initially sought an order in the following terms :
1.
That
respondents’ decision as per Annexure “E” to the
accompanying founding affidavit that applicant’s termination
of
service be one of voluntary resignation, be set aside pending a
reconsideration of the matter
.
2.
That
respondents be ordered to duly consider applicant’s application
for early retirement alternatively the redetermination
of her term of
office as Head of Department: Department of Roads & Transport
(Eastern Cape Provincial Government) as per Annexure
“G”
and “D” to the accompanying founding affidavit.
[2] This order was
revised in the applicant’s heads of argument, given that prayer
two had become moot, as follows:
(a) That first
respondent’s decision that applicant’s application for
termination of service be one of voluntary resignation
be set aside,
and that respondents be ordered to reconsider applicant’s
application as being one for early retirement, alternatively
redetermination of service as per the applicable Senior Management
Services (SMS) Handbook, Annexure “C” to the founding
affidavit, within 15 working days of the order.
(b) Costs in the event of
opposition.
[3] The relief sought was
further revised when the applicant’s counsel conceded, in view
of the expiry of the extended fixed
term contract on the date of this
hearing, that the only appropriate relief would be to set aside the
first respondent’s
decision. The applicant therefore in essence
seeks a declarator that her service contract ends today.
Common cause facts
[4] The applicant was
appointed as Head of Department: Roads and Transport on 1 September
2005. Her initial appointment was for
a three year period,
but in August 2008 her
term was extended for a further three years to expire on 23 August
2011 in terms of section 12 of the Public
Service Act (“the
PSA”).
1
The terms of her
employment were governed by her service contract, the PSA as well as
the Senior Management Service (“SMS”)
handbook (2003
edition) which set out the terms and conditions of employment and the
roles of SMS members.
[5] Clause 4 of the
applicant’s contract of service provides for termination in the
f
ollowing instances :
4.1.1 on reaching the
prescribed retirement age;
4.1.2 on completing a
term or extended term of office;
4.1.3 premature
retirement at the request of the employee;
4.1.4 discharge in terms
of section 17 of the PSA;
4.1.5 redetermination of
original term or extended term of office by the employer;
4.1.6 voluntary
resignation;
4.1.7 death of the
employee.
[6]
Clause 4.3 provides that :
“
[s]ubject to
the provisions of sections 16(5) and 12(1) or (2) of the [Public
Service] Act, and the
Labour Relations Act, 1995
, either party may,
after consultation and agreement, terminate the
Contract
before the expiry of an original term of office or an
extended term of office, by giving the other party three months’
notice
of termination, which notice shall –
4.3.1
be given in writing; and
4.3.2
be given on or before the last day of a month and take effect on the
first day of the succeeding month.”
[7]
Clause 4.4 provides that “should notice of termination be given
as contemplated in clause 4.3, the
Employer
has the right to
require the
Employee
to vacate the office occupied by her/him
and to leave the premises of the Department before the expiry of the
three months’
notice period on a day stipulated by the
Employ
er
and not to present herself/himself for duty any time thereafter.”
[8]
Subparagraph 23.6 of the SMS Handbook provides for the procedure and
benefits applicable to redetermination of an extended term
of office.
It also provides that termination of service may be effected by means
of an agreement between the SMS member and the
member of the
executive authority. In the applicant’s case, the executive
authority is the first respondent acting on the
advice of the second
respondent.
[9]
A SMS member could also request early retirement in terms of section
(16)(5)(a) of the Public Service Act, which is further
dealt with in
subparagraph 23.4 of the SMS handbook. This request may be acceded to
if sufficient reason exists for early retirement.
In terms of 23.4, a
member (such as the applicant) whose term of office has been
extended, will be entitled to an additional pension
benefit.
[10]
Mr T Mhlahlo, who occupied the position of the second respondent when
the applicant concluded her service agreement and on
whose request
her term of service was extended to 23 August 2011, was replaced by
Ms Ghishma Barry as MEC in 2009.
Merits
of the application
[11]
As a result of a tense relationship between the applicant and Ms
Barry, the applicant formed the view that it would be better
for all
concerned that her extended term of service should be terminated
prematurely. She was aware that at the time both her service
agreement and the SMS Handbook made provision for such early
termination, and accordingly made such a request in December 2008.
However she withdrew this request following a discussion with the
second respondent. Notwithstanding this withdrawal and an expression
of confidence by Ms Barry in the applicant, she avers that the
tension in their relationship continued.
[12]
In 2009 the applicant was diagnosed with cardiac-related health
problems and was advised to “take things slow”
to prevent
rapid deterioration of her condition. Consequently, on 31 January
2010 she addressed a letter to the second respondent
giving notice of
the termination in terms of clause 4.3 of her service contract,
whilst simultaneously requesting that her service
contract should be
redetermined in terms of clause 4.1.5 thereof read with subparagraph
23.6 of the SMS handbook. Her letter states
:
“
..I
hereby give notice of termination of employment as required in
paragraph 4.3 of my contract (attached).
That
the termination of my contract be in terms of 4.1.5, namely
redetermination.
That
4.4 be invoked and that I vacate the office on 2 February 2010”.
[13]
To her shock and dismay however, she received a reply from the second
respondent dated 10 February 2010 accepting her “resignation”.
The applicant alleges that she had not intended to resign even though
this was provided for in subparagraph 4.1.6 of her service
contract
as a means of termination thereof. Voluntary resignation, she
submitted was from a financial perspective a far less favourable
way
of exiting the senior management service than redetermination or
early retirement. The redetermination of an SMS member’s
term
of office has significant financial and other implications for the
member as well as the branch of the provincial government
concerned,
and envisages a process of engagement and obtaining further
information between the parties. In the case of early retirement
as
well, the applicant submitted, the financial and other implications
of early retirement both for the member and the branch of
the
provincial government concerned required a thorough consideration and
if necessary a call for further information and discussion
with the
member and other officials.
[14]
The applicant replied to this letter in an attempt to clarify the
position and was again informed that he was considered to
have
resigned. On 16 March 2010, she sought, through her attorneys, to
negotiate early retirement, which would have been financially
more
beneficial to her. This was to no avail and she launched this
application.
[15]
In her opposing affidavit, the first respondent Ms Noxolo Kieviet
states that although she was disappointed to receive the
applicant’s
“letter of resignation” of 31 January 2010, forwarded to
her by the second respondent, she accepted
her decision and conveyed
this to the second respondent. She is aware that the second
respondent then prepared a communiqué
to the applicant
advising of acceptance of her resignation with effect from 3 February
2010. The first respondent states that the
leadership of the
applicant was solely needed when she resigned given the publicity
relating to allegations of corruption and irregularities
relating to
a fleet contract in the provincial department, and hence she was
disappointed to lose her. She accepted however, as
stated in the
letter, that there were medical reasons for the immediate
resignation. In regard to the relief sought, that the first
respondent should be ordered to consider the letter as an application
for early retirement alternatively redetermination of her
term of
office, the applicant fails to set out even a
prima facie
right
to this relief. The application is ill-advised and ill-founded since
her letter was unambiguous and she has not applied for
early
retirement nor for redetermination of her contract.
[16]
In her affidavit, the second respondent states
inter alia
that
there was a good working relationship between her and the applicant
and that the letter was one of unequivocal resignation.
In addition,
the applicant’s letter makes no reference to early retirement
and the applicant is now seeking to introduce
that option belatedly.
[17]
In her replying affidavit, the applicant admits that her letter of 31
January 2010 could have been more elegantly phrased,
but states that
to regard this as a letter of resignation was intended to “get
rid of her in the cheapest possible way”.
Even if this were
unclear, the further correspondence from her attorneys would have
made it clear that she was willing to discuss
a phased departure.
Accordingly, the respondents did not act in good faith.
[18]
The applicant submits that she has a clear alternatively
prima
facie
right in terms of her contract of employment to apply for
redetermination of her term of service or for early retirement in
terms
of the SMS Handbook and the PSA as articulated in her
correspondence of 31 January and 16 March 2010. She has a
well-grounded apprehension
of irreparable harm should the relief not
be granted in that termination of service by means of early
retirement due to medical
reasons or redetermination of service will
be a substantially more advantageous means of leaving the public
service. The balance
of convenience favours her in that a financially
more beneficial exit outweighs the temporary inconvenience to the
respondents
in performing what should be part of their ordinary
duties. The applicant submits furthermore that she has no alternative
remedy
but to approach this court for relief.
[19] Mr Goosen submitted
on behalf of the respondents that it would not have been possible for
the applicant to enforce the right
to redetermination in any event
since this is clearly an option to be invoked at the behest of the
employer as provided for in
clause 4.1.5. Also, insofar as the
applicant states in reply that there was implied consent since the
suggestion of early retirement
arose from the second respondent, this
amounts to making out a case in reply and cannot be countenanced. In
any event, this offer
is disputed and is also improbable given (on
the applicant’s own version), the tense relationship that
existed between the
parties and which largely prompted her
resignation. There was therefore no preceding consultation and /or
agreement in respect
of early retirement or redetermination.
[20]
The
relief sought is more correctly, as was submitted by Mr Pio, a
mandamus
declaring
23 August 2011 as the date on which her extended contract expired.
The applicant concedes
that she is not entitled to remuneration for the period February 2010
to date, but is entitled to benefits
for this period.
[21]
If
regard is had to the applicant’s submissions in the context of
the facts and the applicable law,
the
conclusion that the application was ill-conceived from its very
inception is inescapable. In essence she gave one day’s
notice
instead of the requisite three months’ in that she sought
permission to vacate her office sooner than she was required
to do in
terms of clause 4.3. For all intents and purposes, she resigned and
having realised the financial implications of her
decision, sought to
reverse it.
It
is trite that resignation is a unilateral act and does not have to be
accepted by the employer although its communication has
to be
unequivocal:
African
National Congress v Municipal Manager, George Local Municipality and
Others.
2
The applicant’s
letter of resignation therefore terminated her contract of employment
and there was no application for either
early retirement or
redetermination pending before the respondents even though the
applicant sought subsequently to seek either
remedy. The applicant
has therefore
failed
to demonstrate even a
prima
facie
right
to the relief sought.
[22]
Therefore, I make the following order:
The
application is dismissed with costs, including the costs of two
counsel.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Appearance:
For the Applicant:
Advocate P C Pio instructed by Len Dekker Attorneys
For the Respondents:
Advocate Goosen SC and Advocate N Gqamana instructed by Ms Govender
of the State Attorney
1
103
of 1994.
2
(2010)
31 ILJ 69 (SCA).
7