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[2012] ZALCJHB 27
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Johson Matthey (Pty) Ltd v National Union of Mine Workers of South Africa (NUMSA) and Others (J515/2011) [2012] ZALCJHB 27; (2012) 33 ILJ 2420 (LC) (24 April 2012)
7
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other
judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no
:
J515/2011
In the matter between:
JOHSON MATTHEY (PTY)
LTD
…...................................................................
Applicant
and
NATIONAL UNION OF MINE
WORKERS
OF SOUTH AFRICA
(“NUMSA”)
…....................................................
First
Respondent
MADLANGU P
…............................................................................
Second
Respondent
MOTLUONG L
…................................................................................
Third
Respondent
MOHAPE E
…...................................................................................
Fourth
Respondent
Heard
:
13 April
2012
Delivered
:
24
April 2012
Summary: Application
to declare 2
nd
to 4
th
respondents bound by the applicant’s terms and conditions of
employment; ordering them to sign all necessary documents to join
medical aid. Granted
JUDGMENT
GUSH J
In this matter, the
applicant applies for an order declaring that the second to fourth
respondents are bound by the applicant
terms and conditions of
employment and accordingly obliged to take all necessary steps and
to sign all necessary documentation
facilitates then joining the
Discovery Health Medical Aid Scheme; ordering the second to fourth
respondents to take all necessary
steps to sign all necessary
documentation to join the Discovery Health Medical Aid Scheme in
accordance with the contracts of
employment or alternatively in the
event of the second to fourth respondents refusing to comply
authorising the sheriff of the
court Germiston South to take all
necessary steps and sign all necessary documentation to facilitate
second to fourth respondents
joining the Discovery Health Medical
Aid Scheme.
The second, third and
fourth respondents, who are members of the first respondent, had
been employed by the applicant on 1 November
2001, 15 February 2020
and 29 November 1972 respectively. On 27 February 2009, the
applicant dismissed, for operational requirements,
a number of its
employees including the second, third and fourth respondents.
The second, third and
fourth respondents contracts of employment prior to their dismissal
provided:
The
employee shall continue to be required to belong to one of the
medical aid schemes currently subscribed to. Exemption from joining
one of the above medical schemes would only be granted in the event
of an employee being a member of the medical aid scheme of
which his
spouse is the principal member or he has private membership to a
medical scheme...’
The second, third and
fourth respondents had all initially been members of the Discovery
Health Medical Aid Scheme. However in
accordance with their
contracts of employment at the time of their dismissal, the second
and third respondents had terminated
their membership of the
Discovery Health Medical Aid Scheme and become members of the Sizwe
Medical Fund, which at the time was
a medical aid scheme to which
the applicant subscribed.
During 2008, the
applicant ‘decided to consolidate its offerings in respect of
medical aids’ and elected to subscribe
only to the Discovery
Health Medical Aid Scheme. Those employees who had elected to become
members of Sizwe Medical Fund were
permitted to remain members of
that fund.
At the culmination of
the consultation process regarding the dismissals for operational
requirements, the applicant and the first
respondent entered into a
‘Section 189A Agreement’ which provided
inter alia
that it would ‘... give preference to retrenched employees for
a period of 36 months should a vacancy occur...’
From the papers, it is
clear that vacancies did occur, that the second, third and fourth
respondent together with a number of
other retrenched employees were
not given preference and that as a result a dispute was declared and
referred to the bargaining
Council for arbitration.
The arbitrator in
addition to awarding 12 of the retrenched employees (including the
second third and fourth respondents) compensation
ordered the
applicant to re-employee all 12 of the retrenched employees (again
including the second third and fourth respondents).
The order reads:
‘
[The
applicant] is ordered to re-employee ... Madlangu [2
nd
respondent], Motluong [3
rd
respondent] and Mohapi [4
th
respondent]
... In the operator positions formerly occupied by them at the
prevailing
rates of pay and other
conditions
of employment attached to these posts on date of re-employment
as the herein specified. The re-employment is ordered ... to take
effect on 10 January 2011 when the applicant shall report for
duty in
terms hereof.’ (my emphasis)
The second, third and
fourth respondents appear to have accepted the award of reemployment
and duly reported for duty. The applicant
likewise appears to have
accepted the award, and in compliance offered second, third and
fourth respondents employment and presented
them with a new contract
of employment for signature.
The new contract of
employment which contains the “prevailing conditions of
employment” as at 10 January 2011 under
the heading Medical
Aid provides:
‘
The
employee shall be required to join Discovery Health medical aid
scheme. Exemption from joining the medical scheme would only
be
granted in the event of an employee being a member of a medical
scheme of which is spouse/partner is the principal member or
if
he/she has private membership to a medical scheme
...’
The second, third and
fourth respondents, despite having accepted their re-employment by
the applicant, refused to sign the contract
of employment and those
documents and/or take such steps as are required in order to be
registered as members of the Discovery
Health Medical Aid Scheme.
The pleadings reveal
that the reason advanced by the respondents for refusing to sign the
contracts of employment was first set
out in a letter addressed to
the applicant on 18 March 2011 which reads:
‘
With
regard to the alleged refusal to sign written contracts of employment
union reiterates its position to the effect that our
members will not
under any circumstances sign the said contract of employment in their
current form without the union input. Further
be advised that our
members have never refuse to join the medical aid, they have all
material times indicated that they have a
right to choose the medical
aid of their choice. Please allow our members to join the medical aid
of their choice, should the company
refuse to allow the members to
join the medical aid the choice the company will be held responsible
of the consequences
’
(sic)
In the answering
affidavit, which is deposed to by the first respondent’s
regional legal organiser the respondents expand
on their reason for
refusing to sign the contract as follows:
the second, third and
fourth respondents previous contracts of employment entitled them
to choose either Sizwe Medical Fund
or Discovery Health Medical Aid
Scheme;
the bargaining council
main agreement does not require employees in the industry to belong
to a medical aid particularly one
of the employer's choice; and
the second to fourth
respondents cannot afford the monthly subscription.
Somewhat surprisingly
the second and fourth respondents did not file substantive or
confirmatory affidavits.
As regards the fact that
the new contract did not allow the second to fourth respondents the
right to choose a medical aid as
opposed to their old contract,
apart from the simple fact that as they had been reemployed
specifically on the prevailing terms
and conditions and the new
contract set out those prevailing terms and conditions, the
applicant recorded in its papers in some
detail the rationale behind
the change to the contract which more than justified the applicant’s
choice of medical aid
scheme.
Whilst it is so that the
bargaining council main agreement does not require employees in the
industry to belong to a medical aid
it most certainly does not
prevent an employer from including such a requirement in its
contracts of employment.
Mr van der Riet who
appeared for the respondents argued that in essence as the relief
sought by the applicant’s amounted
to an order of specific
performance and accordingly the court could exercise its discretion
not to grant the relief, he urged
the court not to grant the
application. Mr van der Riet conceded that although the second to
fourth respondents had not filed
affidavits supporting the averment
that they could not afford the contributions and detailing their
individual circumstances,
the applicant had set out sufficient
detail regarding the second to fourth respondent’s income to
tip the balance of hardship
in favour of the respondents.
Mr Tip, who appeared for
the applicants, emphasised that the reasons advanced by the
applicant for insisting on its employees
being members of a medical
aid scheme and the reasons for stipulating
Discovery Health Medical Aid Scheme justified not only the
applicant’s choice of scheme but its decision to include such
a condition in its contracts of employment.
There is no doubt that
the arbitration award ordered the applicant to reemploy the second
to fourth respondents (not reinstate
them) and in particular ordered
that they be reemployed on the prevailing terms and conditions of
employment at the time of their
reemployment. The prevailing terms
and conditions at the time of their reemployment included a clause
in the contract of employment
that they were required to join the
Discovery Health Medical Aid Scheme. The second to fourth
respondents accepted reemployment.
They had the option of declining
reemployment when they became aware of the prevailing terms and
conditions specifically regarding
the medical aid or challenging the
award. This they did not do.
I am satisfied that
having accepted reemployment, whether they have signed the contract
of employment or not, the terms and conditions
that are applicable
to their employment require them to join the Discovery Health
Medical Aid Scheme.
As far as the nature of
the relief sought by the applicant was concerned, Mr Tip and Mr van
der Riet were in agreement that should
the court be inclined to
grant the applicant’s application, the nature of the order
sought should include ordering the
sheriff to sign such documents
and take such steps as are necessary to facilitate the second to
fourth respondents enrolment
as members of the Discovery Health
Medical Aid Scheme in the event of the second to fourth respondents
not complying as it would
obviate unnecessary further litigation.
The nature of the
application and the circumstances which necessitated it being
brought justify, despite the ongoing relationship
between the
applicant and the first respondent an order that the first
respondent pay the costs of the application. The applicant
that the
costs order should include the cost of two counsel. I am however not
satisfied that either the complexity of the matter
or fairness
justified the employment of two counsel.
I accordingly make the
following order:
The second, third and
fourth respondents are declared to be bound by the applicant’s
terms and conditions of employment
that prevailed as at the 10
January 2011 as set out in the contract of employment, specifically
the requirement that they join
the Discovery Health Medical Aid
Scheme.
The second, third and
fourth respondents are ordered to, within 21 days of this judgment,
sign all necessary documentation and take all necessary
steps to sign all necessary documentation, required for them to
join
the Discovery Health Medical Aid Scheme;
In the event of the
second, third and fourth respondents failing to comply, the sheriff
of the court Germiston South is authorised
to take
sign all necessary documentation and take all necessary
steps on behalf of the second, third and fourth respondents as may
be
required for them to join the Discovery Health Medical Aid
Scheme;
The first respondent is
ordered to pay the costs of this application.
____________
Gush J
Judge of the Labour Court
APPEARANCES
APPLICANT: K Tip SC with
him A Snider
Instructed by: Webber
Wentzel Attorneys;
THIRD RESPONDENT: P van
der Riet SC
Instructed by: Ruth
Edmunds Attorneys