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[2011] ZALCJHB 252
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Security, Cleaning, Manufacturing and Allied Workers Union v NSA Security Services (Pty) Ltd (J 2021/10) [2011] ZALCJHB 252 (8 September 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: J 2021-10
In the matter between:
SECURITY, CLEANING, MANUFACTURING
AND
ALLIED WORKERS UNION Applicant
and
NSA SECURITY SERVICES (PTY) LTD
Respondent
JUDGMENT
LAGRANGE, J:
Introduction
On 4 August 2011, the following
order was handed down:
"
1 the settlement agreement
entered into between the Applicant and the Respondent on 8 September
2010 under case number GAJB 22380/10
before Commissioner L Dlamini
of the Commission for Conciliation, Mediation and Arbitration is
made an order of court.
2. The respondent is ordered to
pay the individual applicant, Mr S Ndlala, his arrear wages due from
the date of the agreement
to the date of this order for the
respondents failure to reinstate the individual applicant as agreed.
3. The arrear wages in paragraph 2
of the notice of motion must be paid to the applicant within 10
(ten) days of rich and reasons
for this order being filed.
"
My brief reasons for the order
are set out below.
The settlement agreement
In terms of a settlement agreement
concluded between the parties at the CCMA, which they recorded on a
pro forma settlement
agreement form, the parties concluded as
follows:
“
1.Reinstatement
1.1 The respondent agrees to
reinstate the applicant on the same terms and conditions of
employment which governed the employment
relationship prior to the
dismissal dated...
1.2 The said reinstatement to
operate retrospectively with effect from the 08/09/10.
1.3 As a result of the
retrospective effect of the reinstatement, the respondent agrees to
pay remuneration due to the applicant
any amount of... by no later
than...
1.4 The applicant must report for
duty on 08/10/10 at 06H00 at 12 George Street, Germiston.
"
Background
The matter has its origins in the
removal of the applicant from the site of a client of the
respondent, where he was performing
guarding duties, as a result of
which he also received a final written warning on 14 July 2010. The
warning was subsequently
cancelled on appeal. The respondent called
the applicant on 27 July 2010 and advised him that it had decided
to transfer him
to Arnot Power Station, Eskom in Mpumalanga
Province. The applicant resided with his family in Gauteng and had
previously been
engaged on sites in that province. He refused to
accept the transfer. He was subsequently advised that if he did not
agree
to the transfer management would have no option but to
retrench him. In response he asked that his union should be
consulted
if that was the case, but the employer declined to do so.
The respondent then purported to retrench the applicant but
subsequently
advised him that if he did not accept alternative
employment in Mpumalanga his contract would be cancelled.
The applicant’s union then
referred an unfair dismissal dispute to the CCMA and at the
conciliation hearing the settlement
agreement above was concluded.
The applicant claims that the reason why it was agreed he should
report for work on 8 October
2010 was because he took leave from
the date of conciliation until then.
When he returned to work on 8
October 2010 he was not permitted to work, because the HR manager,
Mr Theron claimed that at the
CCMA he had agreed to work in
Mpumalanga. The applicant says he would never have concluded the
agreement on that basis and
the matter would have proceeded to
arbitration if the employer had insisted it only reinstate him if
he went to Mpumalanga.
In a letter to the applicant, dated 8
October 2010, the respondent sought to confirm its vision of what
had been agreed at
the conciliation hearing. The letter was headed
'Transfer Letter' and the key paragraph read:
"
As per our agreement reached
during re-conciliation and CCMA on the 8th September 2010, Mr Ndlala
Solomzi will be transferred
to Arnot Power Station effective from
8th October 2010 and he will report to a shift at Arnot Power
Station on the 11th October
2010.
"
The applicant refused to sign for
receipt of this letter and was also handed another letter headed
'Refusal for Alternative
Employment'. That letter read:
"
As per our agreement reached
during reconciliation at CCMA on 8 September 2010, you requested the
company at CCMA in front of
the Commissioner to take unpaid leave
effective from 8 September 2010 until 7 October 2010 including five
days paid leave and
you will able to report at Germiston office to
find the direction to Arnot Power station on 8 October 2010.
You given the direction to Arnot
Power Station and you refuse to report to the site. According to you
this was not discussed at
CCMA.
Should failed to report at Arnot
Power Station after three days as from 11 October 2010 you will be
disciplined for absent from
work without valid reason.
"
(sic)
The issue in dispute
In essence, the central issue in
dispute between the parties concerns the interpretation of the
settlement agreement and what
was concluded between them. The
employer contends that it complied with the settlement agreement
because it did not turn the
applicant away when he reported at its
Germiston offices on 8 October 2010, but claimed that he
subsequently refused to accept
the transfer to Mpumalanga even
though he had agreed to this at the CCMA. It also maintains that if
the transfer to Mpumalanga
had not been part of the agreement
reached at the CCMA, the case would have proceeded to arbitration.
The respondent said it could not
place the applicant at any of the sites which it serviced in
Gauteng as he had been removed
from two of them and the client
operating at a third site had refused to accept the applicant to
work at its site based on
the applicant's bad reputation which had
preceded him. The fourth site which it serviced in Guateng required
three security
officers who all had longer service than the
applicant and therefore none of them could be removed to make place
for him. It
did not elaborate on whether it could have replaced
another guard with shorter service with the applicant by
transferring a
guard with longer service at the fourth site to
replace another officer in Gauteng with shorter service at one of
the other
sites thereby effectively creating a vacancy for the
applicant at the fourth site.
The respondent also claimed that
the reason for the applicant requesting the leave period had been
to allow him to sort out
his problems concerning the alternative
employment and transfer.
Analysis
On the face of the settlement
agreement it is clear that nothing is mentioned about the transfer
of the applicant to work in
Mpumalanga. Both parties are adamant
that this would have been an important issue in concluding the
settlement agreement, yet
the agreement contains no hint that this
issue was resolved on the basis that the applicant’s
reinstatement was conditional
on the transfer. The only reference
to a place where the applicant had to work was that he had to
report for duty at the Germiston
premises of the respondent on 8
October 2010. In order to accept the respondent’s version of
the settlement agreement,
in the absence of an express provision
dealing with the transfer, the respondent needed to establish the
existence of a tacit
term in the settlement agreement to the effect
that the applicant’s reinstatement was conditional on him
excepting the
transfer to Mpumalanga. Alternatively, the respondent
had to persuade the court that the parties concluded a
supplementary
oral agreement on the terms of reinstatement.
The main principles governing the
establishment of a tacit term may be summarised as follows:
The express language of the
agreement must not preclude the importation of the tacit term.
1
The tacit term must be one that is
not only reasonable but necessary to give effect to the
agreement.
2
Either the tacit term is one that
the parties actually understood at the time to be an unexpressed
part of their agreement,
or it is one that may be imputed into the
agreement in the sense that the parties would have readily agreed
to the term if
had they been alerted at the time to the issue
which the term addresses
.
3
In the case of a tacit term which
the parties actually understood to exist at the time, it must be
proved, on a balance of
probabilities, by unequivocal evidence of
conduct and circumstances that the parties must have been
satisfied that they were in agreement on the tacit term
.
4
T
he
tacit term must be capable of being formulated in a clear and
exact form
.
5
The settlement agreement concluded
by the parties in this instance simply refers to the applicant
reporting for duty in Germiston
and makes no reference to him being
transferred to work in another province. It cannot be said that a
tacit term to the effect
that his reinstatement would be subject to
him accepting a transfer was necessary to give effect to his
reinstatement by the
employer. The respondent contends that the
conditions attaching to the applicant’s reinstatement were
specifically discussed
and agreed upon at the conciliation hearing,
so it is not relying on the imputation of such term, but an actual
meeting of
minds on this issue. However, given the level of
disagreement over the respondent's attempt to transfer the
applicant to Mpumalanga,
it is difficult to conclude that such an
understanding was something which the parties clearly reached.
In this instance it is clear that
both parties must have applied their mind to the question of
whether or not the applicant
would perform his duties in Mpumalanga
or Gauteng and yet did not include such an important concession by
the applicant in
the agreement. This is particularly strange when
the parties did direct their minds to where the applicant should
report for
duty and stated this in the agreement. Given the
surrounding circumstances, it seems to me that the respondent has
failed to
show on a balance of probabilities that it is more likely
that the parties did intend that the applicant could only resume
his services on transferring to Mpumalanga, than not.
Considering the other alternative,
namely that the parties concluded a separate oral agreement that
made the applicant’s
re-instatement conditional on him
accepting a transfer to Mpumulanga, there are difficulties with
this too. If such a supplementary
oral agreement were reached its
effect would be to amend the written agreement which attaches no
conditions to the applicant’s
reinstatement. Consequently, it
would conflict with the unconditional terms of the written
agreement. It is an established
principle that evidence of a
supplementary oral contract can be led, but only if that collateral
contract is not in conflict
with the terms of the written
agreement.
6
In this case, the respondent is effectively arguing for the
existence of a collateral oral agreement in terms of which the
reinstatement was subject to a suspensive condition that it would
only be effective if the applicant agreed to the transfer.
The
difficulty with admitting evidence of such an agreement is that the
parties expressly agreed that the reinstatement would
take place on
the same terms and conditions governing the applicant’s
employment prior to his dismissal. The oral agreement
contended for
by the respondent has the effect of contradicting that because it
entails a material change in his conditions
of employment, namely
agreement on a transfer to Mpumulanga province. For this reason, I
cannot accept evidence of the existence
of the alleged oral
agreement which conflicts with that term of the written agreement.
Accordingly, the respondent has
failed to establish that the applicant had agreed to perform his
services in Mpumalanga
,
either in terms of a tacit term in the settlement agreement or on
the basis of a collateral oral agreement entered into at
the time
the settlement agreement was concluded. Consequently, I am also
satisfied that the respondent has failed to comply
with the
settlement agreement by reinstating the applicant in accordance
with his previous terms and conditions of employment
when it
insisted that his reinstatement was conditional on transferring to
another province whereas he had always been allocated
duties in
Gauteng province.
.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date of hearing and order: 04
August 2011
Date
of filing reasons: 08 September 2011
Attendance:
For
the Applicant: J Mohapi (Union Official)
For
the Respondent: I G Theron (Employer representative)
1
Pan
American World Airways Inc v SA Fire and Accident Insurance Co Ltd
1965 (3) SA 150
(A)
at 175C:
“
When
dealing with the problem of an implied term the first enquiry is, of
course, whether, regard being had to the express terms
of the
agreement, there is any room for importing the alleged implied
term.
”
2
Wilkins v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A)
at
137:
“
Since
one may assume that the parties to a commercial contract are intent
on concluding a contract which functions efficiently,
a term will
readily be imported into a contract if it is necessary to ensure its
business efficacy; conversely, it is unlikely
that the parties would
have been unanimous on both the need for and the content of a term,
not expressed, when such a term is
not necessary to render the
contract fully functional.
”
3
In
Techni-Pak
Sales (Pty) Ltd v Hall
1968
(3) SA 231
(W)
at 236-237, the
court explained this alternative as follows: “
It
does not matter, therefore, if the negotiating parties fail to think
of the situation in which the term would be required,
provided that
their common intention was such that a reference to such a possible
situation would have evoked from them a prompt
and unanimous
assertion of the term which was to govern it.
”
4
Minister
van Landbou-Tegniese Dienste v Scholtz
1971 (3) SA 188
(A)
at
196H-197A
5
Botha v Coopers and Lybrand
2002 (5) SA 347
(SCA)
,
at 360B-D
6
See
Sealed
Africa (Pty) Ltd v Kelly and Another
2006 (3) SA 65
(W)
at 71, par [18] on the admissibility of collateral oral agreements.
In
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
2006 (5) SA 548
(SCA)
at
554, Brand JA restated the general principle thus:
“
[16]
The general import of the parol evidence rule, which formed the
basis of the appellants' second answer, is well known. It
is to the
effect that, where an agreement is embodied in writing, the written
document is conclusive as to its terms. No evidence,
save the
document itself, is admissible to prove them. Nor may the contents
of the document be contradicted, altered, added to
or varied by oral
evidence (see eg Union Government v Vianini Ferro-Concrete Pipes
(Pty) Ltd
1941 AD 43
at 47; National Board (Pretoria) (Pty) Ltd and
Another v Estate Swanepoel
1975
(3) SA 16 (A)
at 26A - D).
”