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[2012] ZALCJHB 79
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Van Metzinger and Another v Conservation Corporation t/a CC Africa (JS 383/07, JS 387/07) [2012] ZALCJHB 79; (2013) 34 ILJ 1309 (LC) (14 August 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 383/07
Case no: JS 387/07
In the matter between:
DEON VAN METZINGER
….....................................................................
First
Applicant
RINA VAN METZINGER
….................................................................
Second
Applicant
and
THE CONSERVATION
CORPORATION t/a CC AFRICA
….......................
Respondent
Heard on: 13 August
2012
Delivered on: 14
August 2012
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This matter was set down
for trial on 13 August 2012. Parties agreed that the two matters
that were brought under separate case
numbers by the applicants
would be consolidated and heard together as the claims were similar
and brought against the same respondent.
At the commencement of
the trial parties sought leave from the Court to allow a point in
limine raised by the respondent to be
argued first and a ruling be
made by the Court on that issue in order to curtail the proceedings.
Ordinarily points in limine
are raised in application proceedings
and not during the trial. It was for the sake of expediency that the
Court entertained
the application.
The point in limine
raised by the respondent is that this Court has no jurisdiction to
determine the performance bonus claim sought
by the first applicant
as it did not comply with section 74(2) of the Basic Conditions of
Employment Act
1
(“the BCEA”).
This issue is dealt with in greater detail herein below.
The respondent further
submitted that the onus of proving whether or not the court had the
necessary jurisdiction to entertain
that issue rested with the
applicants. The applicants agreed to begin on this issue and called
the first applicant as a sole
witness merely to give evidence on
whether or not the performance bonus dispute was referred to the
Commission for Conciliation
Mediation and Arbitration (“the
CCMA”) together with the unfair dismissal dispute which would
therefore make it competent
for this Court to determine that issue
and order the relief sought.
No witnesses were called
by the respondent on this issue.
Facts
It
is common cause that the first and second applicants were employed
by the respondent as a couple in its airwing charter division
at
Phinda Game Reserve (“Phinda”).
The
first applicant was employed as an aircraft pilot on 26 June 1999
whilst, the second applicant, his wife was employed as an
administrative manageress.
Both
applicants were dismissed on 31 October 2006 by the respondent for
operational requirements. The substantive and procedural
fairness of
that dismissal remains in dispute.
The
applicants referred separate disputes to the CCMA dated 08 November
2006.
The
disputes remained unresolved leading to the applicants launching
claims to this Court on 12 June 2007.
The issue that gives
rise to the point in limine raised by the respondent is the second
relief sought by the first applicant in
clause 27.2 of his statement
of claim.
In addition to the 12
months compensation of R472 632.00, the first applicant seeks
compensation in the sum of R938 511.00
in respect of
performance bonus.
It is important to note
that the second applicant does not seek any performance bonus in her
statement of claim.
Submissions
The issue raised by the
respondent is that this Court has no jurisdiction to entertain the
performance bonus claim raised by the
first applicant because the
first applicant has failed to comply with section 74(2) of the BCEA.
Section 74(2) of the BCEA states
as follows:
“
74.
.............................
(2) If an employee institutes
proceedings for unfair dismissal, the Labour Court or the
arbitrator hearing the matter may
also determine any claim for an amount that is owing to that employee
in terms of this Act if—
the claim is referred in
compliance with section 191 of the Labour Relations
Act, 1995;
the amount has not been owing to
the employee for longer than one year; and
(c) no compliance order has been
made and no other legal proceedings have been
instituted to recover the amount
...........”
The respondent submits
that the first applicant did not refer a performance bonus dispute
to the CCMA in terms of Section 191(1)
of the Labour Relations (“the
LRA”)
2
and
therefore the Court may not determine that claim for an amount
allegedly owing together with the unfair dismissal claim.
Counsel for the
Respondent referred to the case of
Douglas
& Others v The Gauteng MEC for Health
3
where Van Niekerk AJ (as
he then was) held as follows:
“
Section
191 contemplates two forms of referral. The first is the referral of
a dispute to the appropriate statutory dispute resolution
agency (see
section 191(1)), the second contemplates the referral of a dispute to
this Court or to an arbitrator for adjudication
(section 191(5)).
Which form of “referral” does section
74(2)
of
the Basic
Conditions of Employment Act contemplate? In my view, it can only
be the former. The Labour Courts have consistently
held that a
dispute as framed in the initial referral to the CCMA or bargaining
council is definitive, and that it is not competent
for a party to
change the nature of the dispute at the second stage of referral to
arbitration or adjudication (See NUMSA v Driveline
Technologies (Pty)
Ltd & Another
[2007]
ZALC 66
;
[2000]
1 BLLR 20
(
LAC)).
In the present instance, the referral form in terms of which the
Applicants referred their dispute to the Bargaining Council
makes no
mention of a claim for remuneration for the month of April 2006. The
claim for remuneration appears for the first time
in the Applicants’
statement of claim filed in these proceedings. In these
circumstances, the Applicants have not met the
condition established
by section
74(2) (a)
and
this Court is accordingly precluded from making any order in this
regard.”
Applying the Douglas
case to the facts of this case, the respondent contends that the
7.11 referral form to the CCMA only referred
to unfair dismissal for
operational requirements as a nature of the dispute referred.
Nowhere is the dispute concerning performance
bonus mentioned in the
first applicant’s referral form, his application for
condonation which accompanied the referral
form nor is it mentioned
in the Certificate of Outcome as a dispute that the commissioner
conciliated.
The first applicant
testified that there were two conciliation meetings held, one in
respect of his wife, the second applicant
on 05 December 2006, which
he did not attend and the other which was held on 04 May 2007 in
respect of his dispute. Both applicants
attended the conciliation
hearing on that day.
The first applicant’s
evidence in essence was that, although the referral documents may
have been silent on the performance
bonus issue, the matter was
discussed at conciliation, amongst other benefits discussed. The
first applicant sought to disclose
details of the conciliation
discussions.
Rule 16 of the CCMA
Rules
4
does not permit
reference to any of the discussions held at the CCMA. It states as
follows:
“
16
Conciliation
proceedings may not be disclosed
Conciliation proceedings are
private and confidential and are conducted on a without prejudice
basis. No person may refer to anything
said at conciliation
proceedings during any subsequent proceedings, unless the parties
agree in writing.
No person, including a
commissioner, may be called as a witness during any subsequent
proceedings in the Commission or in any court
to give evidence about
what transpired during conciliation.”
Evidence relating the
conciliation discussions must therefore be rejected. Applicants’
Counsel suggested that even if those
discussions may not be
disclosed, the performance bonus issue has always been a “dispute”
that the respondent has
been aware of. The basis of this submission
is that, correspondence between the parties and evidence given by
the first applicant
would clearly suggest that parties have during
the section 189
5
discussions at the
workplace discussed the performance bonus issue.
I cannot agree with the
applicants that these alleged discussions at the workplace indicate
that the dispute was referred to the
CCMA. Those discussions in my
view are irrelevant.
I equally reject that
the respondent had admitted in its response that the Court had
jurisdiction to hear performance bonus claim.
In my view there is
clear non-compliance with section 74(2) of the BCEA.
Can the Court
determine the claim in terms of Section 77(3) of the BCEA
The matter, however,
does not end there in my view. The applicants have submitted that
even if the Court were to find that the
dispute was not referred to
the CCMA in accordance with section 191of the LRA as required by
section 74(2) of the BCEA, the Court
would still have jurisdiction
to hear this matter in terms of section 77(3) of the BCEA.
The basis for this
submission was that there was an oral employment agreement that was
not disputed. Section 77(3) of the BCEA
provides as follows:
“
(3) The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment.
irrespective of whether any basic condition of employment constitutes
a term of that contract.”
The only place where the
performance bonus issue is mentioned in the body of the statement of
claim (apart from the relief sought)
is in paragraph 24.7. That
paragraph reads as follows:
“
24. The
monthly remuneration package earned by the Claimant was as follows:
24.7.1 Amount overdue 2001 to 2006
747 145.00
24.7.2 Amount due for 4 months
ending
on 31 October 2006 98 501.00
24.7.3 Due for 2007 based on
forecast Figures 92 865.00
TOTAL DUE AND PAYABLE 977 897.00”
Apart from this there
are no other allegations dealing with performance bonus. If the
first applicant believes that he is entitled
to a performance bonus,
it is necessary for him to allege so as to prove that he is
contractually entitled to that amount. It
is not sufficient for him
to merely prove that failure to pay that amount was unfair. No basis
is mentioned in the pleadings
entitling the first applicant to the
performance bonus he now seeks to enforce.
6
He must allege the terms
of the contract on which he seeks to rely.
The respondent’s
response either does not take the matter any further. The respondent
merely denies paragraph 24.7 of the
statement of claim in its
response without placing basis for its denial.
7
The respondent further
indicated its intention to bring an exception in terms of which it
would contend,
amongst
others, that “the statement of case fails to disclose a cause
of action in respect of claim 27.2. The Respondent
did not bring
that exception but simply argued that it was raising the point in
limine as a special plea. No formal special plea
was lodged. The
entire point in limine was argued orally. The fact the respondent
mentioned that it believed that the court had
no jurisdiction to
entertain the performance bonus claim in the pre-
trial minute takes this
matter no further. What is also interesting is that the respondent
submitted that its attack on jurisdiction
was not whether or not the
issue was pleaded but it was merely non-compliance with section
74(2) of the BCEA.
The respondent’s
Counsel argued that section 77(3) of the BCEA was not applicable in
this case because the claim is framed
as an unfair dismissal claim
and the performance bonus relief is sought under the unfair
dismissal dispute.
Jurisdictionally, the
Court is entitled to entertain the performance bonus issue as a
contractual claim in terms of section 77(3)
of the BCEA. However,
the contractual claim has not been properly pleaded, which is a bar
to the applicant to lead evidence on
the issue as the pleadings
stand.
In the circumstances, I
find that the applicants have failed to comply with section 74(2) of
the BCEA. Section 77(3) of the BCEA
performance bonus claim has not
been properly pleaded.
Therefore, the
applicants are barred from leading evidence on the pleadings as they
stand;
The issue of costs shall
be determined at the end of the trial.
__________________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES:
For the applicants: Adv
DH Wijnbeeck
Instructed by: Dewey
Souza, Sandton
For respondent: Adv R
Moultrie
Instructed by: Wright
Rose Innes, Saxonwold
1
Act
75 of 1997 as amended
2
Act
66 of 1995
3
(2008)
29 ILJ 1499 (LC) at paragraph 39
4
Rules
for the Conduct of Proceedings before the CCMA ,
Act
Published
under
GN R1448 in
GG
25515 of 10 October 2003 as
amended
5
Act
66 of 1995
6
See
Voster v Real Africa Corporate Services (Pty) Ltd (2003) 24 ILJ 451
(LC)
7
See
paragraph 4.9 of the Respondent’s response to the statement of
claim
9