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[2012] ZALCJHB 70
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Solidarity obo Van Niekerk v Denel (Pty) Ltd (JS600/11) [2012] ZALCJHB 70; [2012] 10 BLLR 1030 (LC); (2013) 34 ILJ 435 (LC) (4 July 2012)
REPUBLIC OF SOUTH AFRICA
Not reportable
THE LABOUR COURT OF SOUTH
AFRICA,
IN JOHANNESBURG JUDGMENT
CASE NO.: JS600/11
In the matter between:
SOLIDARITY
obo A J VAN NIEKERK
….........................................................................
Applicant
And
DENEL
(PTY) LTD (DENEL DYNAMICS)
…................................................................
Respondent
Date heads submitted: 15 June
2012
Date of judgment: 4 July 2012
JUDGMENT
VAN
NIEKERK J
Introduction
[1] The referral to this court
embraces a contractual claim as well as a claim in terms of section
10(6) (a) of the Employment
Equity Act 55 of 1998 (the EEA). The
parties agreed that the contractual claim would be argued on the
common cause facts, and
that the discrimination claim would be set
down for trial, if needs be, after the court has determined the
contractual issues.
[2] The parties agreed further
that they would submit heads of argument in respect of the
contractual issue and that if necessary,
the matter would proceed
thereafter in respect of the discrimination claim.
Factual background
[3] The relevant facts are
those listed as common cause in the pre-trial minute. These are, in
essence, that Ms. van Niekerk (the
employee) was employed as senior
secretary (electronic engineering) from 9 February 2009 to 28
February 2011 on a series of seven
consecutive three-month contracts
and a final one-month contract. During this period, her position was
advertised four times,
both internally and externally. Each
advertisement indicated that an "HDI" candidate would be
preferred, and one proclaimed
that the respondent is an "employment
equity employer" and that preference would be given to
candidates who would
"add diversity" to
the company. Two advertisements further stated:
"A pleasant, sen/ice-
orientated person with a suitable profile and experience is urgently
required, regardless of ethnicity
or gender"
[4] The
employee applied for the post twice, but was unsuccessful. On the
third occasion the employee applied for the post, she
was not even
interviewed. On 2 February 2011 the applicant lodged a grievance
regarding,
inter
alia,
the
respondent's failure to appoint her as a permanent employee. The
employee was subsequently informed that the post was an "ACI"
(African, Coloured, Indian) position, and that an offer had been
made to a suitable candidate on 9 February 2011, while the employee
was still in service.
[5] Nothing came of the formal
grievance lodged by the employee. She was informed that the post was
"defined as a temporary
position" and that "[e]mployment
transformation is a company objective and this vacancy, as well as
the specific job
category, is a company transformation target".
The employee's final one-month contract was not renewed, and the
employment
relationship with the respondent terminated.
[6] It is clear from the above
facts and from the respondent's pleadings that the reasons for the
termination of the employee's
services with the respondent were that
the post occupied by the employee was made "permanent" and
advertised as such,
and that the respondent did not appoint the
employee to the post solely because she is white.
The terms of the contract
[7] The relevant express terms
of the final fixed term contract of employment are as follows:
'With reference to the discussion we had with you, we
would like to extend your fixed term contract at Electronic
Engineering.
Your present remuneration and other fringe benefits
will remain the same. For ease of reference we have highlighted the
more
important issues of your conditions of employment. Note that
your complete conditions of-employment are contained in the Das
Conditions of Employment for Temporary: Hourly Employees...
1.1 Period- 1 February 2011 to 28 February 2011 after
which it will expire without further notice.
Please note thai this agreement is a fixed term
contract, therefore you do not ; qualify for any other benefits or
fringe benefits
in terms of the Denel Conditions of Employment.
Denel's disciplinary code and grievance procedure and the Das
Conditions of Employment
for Temporary Hourly Employees,
COSAD-00256-618 is nevertheless applicable to you.'
[8] The
Conditions
of Employment for Temporary Hourly Employees ('the conditions of
employment') contains
inter
alia
the
following relevant provisions:
'Synopsis
This document describes the conditions of employment
applicable to temporary hourly Denel Dynamics employees. It also
defines
the parameters of service benefits and the duties of the
employees in this regard.
1
.
Introduction
... Unless otherwise agreed to in writing, these
Conditions of Employment will be regarded as an integral part of the
service
contract between the employee and Denel Dynamics.
When somebody accepts an appointment at Denel Dynamics,
it will be deemed that he or she has accepted these Conditions of
Employment....
3. Abbreviations and definitions ...
Service/Employment Contract
A written agreement between the employer and the
employee, which forms the contractual basis for a working
relationship....
6.
Fringe
benefits;
6.1.
Retirement
scheme
The employee does not qualify for membership.
6.2.
Medical
scheme
The employee does not qualify for membership....
10 General
10 8. Amendments
The employer reserves the right to
change these Conditions of Service as may be necessary. Such changes
shall take place according
to fair procedure and may be changed with
one calendar month's written notice.
10.9
Contract
period
Should employees be contracted
for periods longer than 24 months, they will be obliged to convert
to standard conditions of employment.
Membership of the retirement
scheme and the medical scheme will then be compulsory
(own emphasis).
This is applicable to all employees appointed after 30
September 2008.'
The issue
[9] The
parties do not dispute that the employee was appointed after 30
September 2008, and that the conditions of employment
for temporary
hourly employees, including clause 10.9 thereof, form part of the
express terms of each of the employment contracts
between Denel and
the employee. This much is apparent from the wording of the final
fixed term contract and others, which specifically
provide that
these conditions of employment are applicabieftp the employee.
Analysis
[10] The
applicant contends that the plain import of clause 10.9 is that any
"contracted" employees -
i
.e.
those on fixed-term contracts - are bound to accept permanent
employment after two years, because Jstandard conditions of
service"
are of indefinite duration and only permanent employees can become
members of the respondent's pension fund and
medical aid scheme.
Since an employee on one or more fixed-terimcontraets totaling a
period of longer than 24 months cannot compel
the respondent to
appoint them permanently or admit her to the fund or scheme, it
follows that the respondent was under a reciprocal
obligation to do
so.
[11] The respondent contends
that the common intention of the parties was that the employee .was
employed on a temporary fixed-term
contract, and that this common
intention never changed. No person could reasonably assume from a
reading of a fixed term contract
that they were being offered
permanent employment. Read as a whole, on the ordinary grammatical
meaning of the words, the employment
contract is one of fixed term
temporary employment. The express terms of the final contract could
not have been clearer as to
the nature of employment - the contract
expressly states that it is operative from 1 to 28 February 2011,
'after which it will
expire without further notice'. Previous fixed
term contracts were equally explicit as to the nature of employment.
The final
contract is an extension of previous fixed term contracts.
Clause 10.9 does not indicate a conversion in the nature of
employment
from temporary to permanent employment - rather it
creates an obligation on the employee to convert to certain other
terms and
conditions of employment, and in particular, membership of
the medical and retirement schemes. Clause 10.9 does not serve to
override the express written terms of the employment contract.
[12] In my view, the
respondent's submissions beg the question of the employee's right to
appointment on the respondent's standard
conditions of employment.
Although each of the eight fixed-term contracts signed by the
employee provided for employment for
a fixed term, each of them ma%s
direct reference to the conditions of employment for temporary
hourly employees, and incorporates
them as terms of the contract.
The reference to "Standard conditions of employment" in
clause 10.9 can only refer to
those not specified in the document
applicable to temporary hourly employees. Clause 6 of the conditions
of employment for temporary
employees expressipprovides that they do
not qualify for membership of either the retirement or medical
schemes. It must follow
as a matter of logic that "standard
conditions" are those that apply to permanent employees, which
include compulsory
membership of the retirement and medical schemes,
and are of indefinite duration. It also follows logically that the
membership
of the company's retirement scheme implies employment of
indefinite duration.
[13] Clause
10.9 of the policy
:
repeated in
all the employee's fixed-term contracts, is clear and unambiguous:
once a "temporary employee" has been
employed for 24
months (which the employee was on 10 February 2011) the employee
becomes entitled to be employed and the respondent
is under a
reciprocal obligation to employ her, on "standard" (i.e.
indefinite) terms. The employee is therefore entitled
to appointment
in the post of senior secretary or such comparable position as may
be available, on the respondent's standard
conditions of employment,
with effect from the date on which she had been contracted as a
temporary employee for longer than
24 months, i.e. 10 February 2011.
[14]
The parties are in agreement that costs should follow the result.
I
accordingly
make the following order:
1. The respondent is ordered to
abide by clause 10.9 of its Conditions of Employment for Temporary
Hourly Employees, and to appoint
the employee to the post of senior
secretary (or such comparable position as may be available) on its
standard conditions of
employment, with .effect from 10 February
2011.
2. The respondent is to pay the
costs of these proceedings
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR COURT
Representation
For the applicant: Adv. J
Grogan
For the respondent: Heads
drafted by Adv. G Fourie, instructed by Crawford & Associates