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[2011] ZALCCT 44
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Steele v Riga Boutique CC (C1085/2010) [2011] ZALCCT 44 (19 August 2011)
Not reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case no: C1085/2010
In the matter between:
JULIA TANDI STEELE
...................................................................................
Applicant
and
RIGA BOUTIQUE CC
..................................................................................
Respondent
Date of hearing: 16 August 2011
Date of judgment: 19 August 2011
JUDGMENT
Conradie AJ
In this matter the Applicant referred a dispute to this Court in
terms of Section 77 (3) of the Basic Conditions of Employment
Act,
75 of 1997 (BCEA).
According to the Applicant she was employed by the Respondent on 19
January 2009, as an Assistant Store Manager based at the
Waterfront.
In October 2009 she was promoted to the position of Store Manager,
which position she held until 17 August 2010 when she alleges
that
she was dismissed by the Respondent.
According to the Applicant she reported to a Mr Adriaan Vaakel and
had limited contact with the managing members of the Respondent
i.e.
Mr and Mrs Kaplan.
On 17 August 2010 Mr Kaplan requested her to meet him at a coffee
shop at the Waterfront. On her version she was told at this
meeting
that she needed to leave as her services were no longer required at
the Waterfront. The Applicant also claims that she
was presented
with a document titled “Settlement Agreement”, but which
Kaplan explained to her was a letter of resignation.
The Applicant refused to sign the document as she felt that it was
forced on her and she had no intention to resign from her
employment. She was, however, instructed by Kaplan to vacate the
store and to hand in her keys at the close of her shift on that
day.
The Applicant refused to sign the document and indicated that she
would get back to Kaplan the following Wednesday. This meeting,
however, only took place on Monday 23 August 2010 at the Cavendish
Square Shopping Mall. At this meeting the Applicant again
protested
against the “letter of resignation” and questioned the
process and method followed by the Respondent in
arriving at the
decision to terminate her employment. No explanation was provided by
Kaplan. However, the document was amended
to refer to retrenchment,
instead of resignation.
The Applicant claims that she was under the impression that the
document would be the first step in a retrenchment process to
be
followed by the Respondent and as a result signed the document. She
also claims that she did not understand, or realise that
the
document that she signed, was in full and final settlement, nor did
she intend that it should be.
The Applicant subsequently
referred an unfair dismissal dispute to the CCMA. The Respondent’s
legal representatives, however,
raised a point
in
limine
that the CCMA
did not have jurisdiction due to the fact that a full and final
settlement agreement had been entered into between
the Applicant and
the Respondent. The Commissioner appointed to hear the matter ruled
in favour of the Respondent in respect
of the point
in
limine.
The Applicant then referred this matter on 9 December 2010, and on
20 December 2010 the Respondent filed a Statement of Response.
It appears from the Respondent’s Statement of Response that
much of that which the Applicant alleges is denied.
There is clearly in my view a
material dispute of fact which would need to be resolved on the
basis of oral evidence. If regard
is had to the Rules of this Court,
then
“
if a
material dispute of fact is foreseen, Rule 6 may be used to initiate
the determination of any matter concerning of contract
of employment
in terms of
Section 77(3)
of the
Basic Conditions of Employment
Act..”
1
It
appears that this is the route which the Applicant set upon,
hence the referral to this Court in the form of a Statement of Case.
However, the Respondent raised a point
in limine
in its
statement of response on the basis that a valid settlement agreement
was concluded between the parties and accordingly
the Applicant is
precluded from raising the dispute before this Honourable Court.
This point
in limine
was followed up by a substantive
application on affidavit in support of the preliminary objection.
The Applicant thereafter filed
an answering affidavit and the
Respondent filed a replying affidavit.
It is this application in support of the
point in limine
raised by the Applicant which was set down for determination before
me. I raised the concern that based on the Statement of Case
it
appeared that the Applicant was seeking to have the settlement
agreement set aside as well as for this Court to rule on the
fairness of the dismissal, if any. It was pointed out to the
representative for the Applicant that this Court would not have
jurisdiction to entertain a dismissal dispute in circumstances where
such a dispute was not conciliated. The Applicant’s
representative conceded that that would then leave only the issue of
the validity of the settlement agreement to be determined
and that
such a determination could only be made on the basis of oral
evidence in light of the substantial dispute on the papers.
This matter in my view should not have been dealt with on the basis
of an application. The rule referred to above is clear that
in the
event that a dispute of fact is anticipated in a
Section 77
(3)
referral then that matter should be dealt with by way of a Statement
of Claim. This is exactly the procedure which the Applicant
followed
to begin with. The parties now unfortunately find themselves in the
position where the only way in which the validity
of the settlement
agreement can be determined is if the matter is indeed heard by way
of oral evidence.
Although the Respondent launched a substantive application in
respect of its point
in limine
, it is not possible to blame
the Respondent for the fact that the matter was set down for the
preliminary point to be heard.
I say this because it has a bearing
on the issue of costs.
In the circumstances I make the following order
The dispute referred to this Court in terms of
Section 77(3)
of the
BCEA is to be determined by way of oral evidence as envisaged by
Rule 6
of the Rules of this Court.
There is no order as to costs.
Conradie AJ
________________
Appearances
For the applicants: F H Cronjẻ
Instructed by: Cronjẻs Incorporated Attorneys
For the respondents: P Maharaj
Instructed by: Cliffe Dekker Hofmeyr Inc
1
See
footnote 5 to
Rule 6
of the Rules for the Conduct of Proceedings in
the Labour Court.