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[2011] ZALCCT 31
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Greeff v Consol Glass (Pty) Ltd (C 666/11) [2011] ZALCCT 31; (2012) 33 ILJ 1167 (LC) (2 December 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C 666/11
In the matter between:
MARYKA
GREEFF
….........................................................................
Applicant
and
CONSOL
GLASS (PTY) LTD
….....................................................
Respondent
Heard
:
25 November 2011
Delivered
:
2 December 2011
JUDGMENT
STEENKAMP J
Introduction
This is an application to make a settlement agreement an order of
court in terms of s 158(1)(c) of the Labour Relations Act
1
(the LRA).
Background
Maryka Greeff, the applicant, was employed by the respondent as an
accounts manager.
The respondent embarked on a process in terms of section 189 of the
LRA to consult with staff in contemplation of dismissals
for
operational requirements pursuant to a restructuring process.
On 8 October 2010, and while she was still employed by the
respondent, the applicant (“the employee”) entered into
a written agreement with the respondent. That agreement was
encapsulated in a letter that stipulated,
inter alia
, the
following:
“
1. The
effective date of termination of your contract of employment will be
30 November 2010.
2. Subject to you being able to
conclude the handover duties assigned to you during this period, you
may not be required to work
the contractual one month’s notice
period during the month of November and your last day at the office
will be 31 October
2010. Should you however not be able to finalise
these duties as required, you may be required to work part of or the
entirety
of your notice period.”
The letter then sets out a severance package and other benefits due
and stipulates that it is in full and final settlement of
all claims
that the employee may have, and that it precludes her from disputing
the termination of her employment at the CCMA
or this Court. She
countersigned the agreement on 12 October 2010.
The employee subsequently asked to be released from her duties as
from 18 October 2010. It is in dispute whether she was due
to take
up other employment as from that date or whether she merely needed
to go to an interview for other employment; what is
common cause,
though, is that the respondent insisted that she work out her notice
period; and that the respondent wrote to her
on 18 October 2010 to
place on record that it had accepted her resignation that she
allegedly tendered on 12 October. She denies
that she resigned and
says that the respondent breached the settlement agreement. The
respondent, on the other hand, alleges
that the employee had
resigned prematurely; that she was, therefore, in breach of the
agreement; and that it no longer needed
to pay her any severance
pay.
It is common cause that there was a settlement agreement and that
the respondent has not honoured it. The reasons therefor are,
as
explained above, that the respondent avers that the employee is in
breach of the agreement.
The employee now seeks to have the settlement agreement an order of
court in terms of s 158(1)(c).
Legal framework
Section 158(1)(c) reads as follows:
“
The
Labour Court may –
(c) make any arbitration award
or any settlement agreement an order of the Court.”
The same parties have previously approached this court in a review
application concerning the application of s 142A of the LRA.
In
Consol Glass (Pty) Ltd v CCMA & Others
2
[
Consol Glass (1)
] I came to the conclusion that, in terms of
that section, a settlement agreement such as this one could not be
made an arbitration
award by the CCMA. In this regard I aligned
myself with the judgment of Van Niekerk J in
Molaba & others
v Emfuleni Local Municipality
3
and distinguished the facts of this case from those in
Tsotetsi v
Stallion Security (Pty) Ltd
4
and
Dell v HPD Construction.
5
Mr
de Kock
, who appeared for the employee in both cases,
argued that my earlier decision in
Consol Glass (1) (supra)
did
not mean that this court would not have jurisdiction to entertain
the application in terms of s 158(1)(c). That is so because
of the
clear language in s 142A that I had to consider in the review
application, ie that the CCMA may make any settlement agreement
in
respect of “any dispute that has been referred to the
Commission” an arbitration award. The quoted clause does
not
form part of s 158(1)(c) and therefore, argued Mr de Kock, this
court is not restricted from making the agreement an order
of court
in the same way that the CCMA is precluded from making it an
arbitration award. In fact, he argued, the words “any
arbitration award” call for a broad interpretation.
I agree that the language of s 158 is not as clear as that of s
142A. Yet I remain in agreement with the interpretation adopted
in
Molaba.
As Van Niekerk J noted with reference to the earlier
judgment in
Harrisawak v La Farge (SA)
6
:
“
[8]
The
Harrisawak
judgment was delivered before the 2002 amendments to the LRA were
promulgated. Those amendments introduced section 142A and deleted
the
qualification in section 158(1)(c) that related to collective
agreements. After the 2002 amendments, a settlement agreement
concluded in the circumstances of
Harrisawak
can be made an arbitration award in terms of section 142A (because
the dispute had been referred to the CCMA for conciliation)
and it
would not be necessary to seek this Court’s intervention to
secure the enforceability of the agreement. But that leaves
open the
question whether the broad interpretation afforded section 158(1)(c)
in
Harrisawak
should survive the 2002 amendments.
[9] I think not. The
interpretation adopted in
Harrisawak
might suggest that this
Court ought to entertain an application in terms of section 158(1)(c)
only because the agreement in question
settles an employment-related
dispute. It implies that any party to the settlement of an
employment-related grievance, whatever
its nature, is entitled to
approach the court to have that settlement made an order. It would
also entitle any party to a collective
agreement to have that
agreement made an order, thus blurring the line between a
constitutive and a judicial act, a line that section
142A clearly
draws and that the broad architecture of the LRA preserves. A broad
interpretation would also suggest that the limitations
established by
section 142A could be entirely undermined – none of the
conditions attached to having a settlement agreement
made an
arbitration award in terms of that section would apply if a party
were simply permitted to approach this Court to have
any
employment-related agreement made an order. Finally, a broad
interpretation would blur the line between what are properly
contractual claims to be enforced either by the civil courts, or by
this Court under section 77(3) of the BCEA.
[10] An alternative, narrower
interpretation of section 158(1)(c) is to limit its application to
those instances where a party has
validly referred a dispute to this
Court for adjudication and where the dispute, at any time after the
referral, has been settled.
An interpretation to this effect would
preserve the integrity of section 142A. It would also avoid all of
the difficulties, conceptual
and practical, that the broad
interpretation presents.”
I cannot add anything more, save to say that I agree fully.
In his oral argument in this application, and subsequent to my
judgment in
Consol Glass (1),
Mr
de Kock
also referred
me to the unreported judgment of Farber AJ in
Bramley v Wilde &
Another.
7
In that case, a settlement agreement that had not been referred for
resolution in terms of the LRA was nevertheless made an order
of
court in terms of s 158(1)(c). But as the learned acting judge
pointed out in the very first paragraph, that judgment was
concerned
with the interpretation of the section prior to its amendment by Act
12 of 2002. In those circumstances, it has been
superseded by the
amendment and its interpretation in
Molaba.
Conclusion
I remain of the view that this is not a matter where the court
should exercise its discretion in favour of making the settlement
agreement an order of court in circumstances where no dispute has
been referred to the court for adjudication.
The application is dismissed. In law and fairness, though, I do not
deem it appropriate to make an order for costs.
_______________________
A J Steenkamp
Judge
APPEARANCES
APPLICANT: C de Kock
Instructed by Carelse Khan.
RESPONDENT: AC Soldatos of Fluxmans Inc.
1
Act
66 of 1995.
2
[2011]
ZALCCT 22.
3
[2009]
7 BLLR 679
(LC).
4
(2009)
30
ILJ
2802
(LC).
5
[2010]
6 BLLR 626
(LC).
6
(2001)
22
ILJ
1395
(LC);
[2001] 6 BLLR 614
(LC).
7
(2002)
11 LC 1.16.2
(J 4611/00, 28 November 2002).