About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 57
|
|
Snyders v Epic Foods (Pty) Ltd (JS 565/11) [2013] ZALCJHB 57 (23 April 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 565/11
In the matter between:
GERRIT SNYDERS
.........................................................................................
Applicant
and
EPIC FOODS (PTY) LTD
............................................................................
Respondent
Heard: 06 July 2012
Delivered: 23 April
2013
Summary: Jurisdiction
– In the case of a dispute which is governed by the provisions
of section 191(5)(a)(ii) of the LRA,
the applicant can rely on the
doctrine of
causa continentia
only where there has been a
referral of its dispute to the Labour Court by the Director of the
CCMA in terms of section 191(6)
of the LRA. Applicant’s claim
of constructive dismissal stayed in the Labour Court and referred to
the CCMA for arbitration
in terms of section 158(2)(a) of the LRA.
JUDGMENT
___________________________________________________________________
MEMANI AJ
[1] In this matter, the
applicant has filed a statement of claim in which he claims the
payment of bonuses that he alleges are due
to him in terms of an
agreement between himself and the respondent.
[2] The total amount
claimed by the applicant is R617 285.11, which the statement of claim
states is made up of (a) bonuses of R256
575.77 and R266 827.01 for
the years 2009 and 2010 respectively, (b) accrued leave pay for 22
days in the sum of R75 882.33, (c)
R18 000.00 for expenses incurred
on behalf of the respondent.
[3] The applicant also
alleges that his resignation constitutes a constructive dismissal
which was caused by the interference of
the shareholders of the
respondent in management issues and the non-payment of agreed
bonuses. The final straw was when one of
the shareholders insulted
the applicant’s mother.
[4] The respondent has
filed an exception on the following grounds:
(1) The Labour Court
lacks jurisdiction to determine a constructive dismissal claim.
(2) The statement of
claim does not disclose a cause of action.
(3) The statement of
claim does not show how the amount of the bonuses was calculated and
how the respondent acted
male fide
.
(4) The applicant avers
that the bonus amounts were agreed upon by the parties, yet in
paragraph 15.2.1 he avers that the payment
of bonuses was at the sole
discretion of the respondent.
[5] The applicant
concedes that ordinarily this Court does not have jurisdiction to
hear constructive dismissal claims. However,
in his heads of argument
he contends that, based on the doctrine of
causa
continenta
,
conjunction
causarum, identitas causarum, connexitas causarum
and the once-and-for-all
rule, this Court has jurisdiction to hear both his damages claim in
terms of section 77 of the of the BCEA
and his constructive dismissal
claim.
[6] However, in argument,
Mr Snyman who represented the applicant did not refer to the
doctrines of name, but I understood him to
be contending that a
connexitas
causarum
exists
which related to the applicant’s section 77 claim and his claim
for damages in that what led to an intolerable employment
relationship between the applicant and the respondent is the fact
that despite repeated demands, the respondent has failed to honour
its obligations to pay him agreed bonuses. Thus, the facts relied
upon in support of the section 77 claim are the same as the facts
that will be relied upon in support of the constructive dismissal
claim. To the extent that some of the issues fall exclusively
within
the jurisdiction of the CCMA and some fall exclusively within the
jurisdiction of the Labour Court, respectively, there
is a
conjunctio
causarum
in
that there has been an unfair dismissal which has been followed by a
timeous referral to the CCMA, conciliation has taken place
there, and
there is a certificate of outcome. I should, therefore, apply the
doctrine of
causa
continentia
,
to extend the jurisdiction of the Labour Court to the applicant’s
constructive dismissal claim.
[7] Ms Tilly who
represented the respondent objected to the placing of facts that
relate to the dispute having been referred timeously
and that
conciliation has failed because they do not appear
ex
facie
the
statement of claim, and Mr Snyman cannot tender evidence from the
bar. I do not agree. The applicant’s causes of action
did not
call for the making of the allegations in the statement of case. If
it were the case that the matter was not properly referred
to the
CCMA, one would have expected that the respondent would have taken
the point as part of its exception. It is usual in circumstances
like
these for the bench to accept statements such as the ones that Mr
Snyman made from the bar. I, therefore, will follow practice
and
accept Mr Snyman’s statements from the bar.
[8] For his submissions
Mr Snyman relied in the main on
Roberts
Construction Co Ltd v Wilcox Bros (Pty) Ltd.
1
The main purpose of the
causa
continentia
rule
is to avoid an unnecessary multiplication of actions concerning the
same subject-matter which might cause inconvenience and
result in
contradictory judgments.
2
I agree with Mr Snyman
that the evidence that will be led in the Labour Court regarding the
applicant’s claim for section
77 damages is the same as the
evidence that will be led in the CCMA in support of his claim of
constructive dismissal. The common
evidence will be that there was an
agreement to pay bonuses which the respondent has breached. He has
found the respondent’s
conduct to be unacceptable, and these
facts have led him to terminate the employment relationship or they
entitle him to payment
of the damages which he has claimed. The fact
that he is also going to rely on undue interference in his work does
not detract
from the validity of Mr Snyman’s contentions.
3
I also agree with him
that there is a real risk that the Labour Court and the CCMA might
reach contradictory conclusions on these
facts. However,
causa
continentia
does
not apply where the court lacks jurisdiction to hear the cause
concerned.
4
[9] In this matter, the
cause of action is an alleged unfair dismissal in terms of section
191(5)(a)(ii) of the LRA. The Labour
Court has jurisdiction to hear
such a dispute only if the Director of the CCMA has referred the
dispute to it in terms of section
191(6) of the LRA. In my view, a
litigant cannot invoke the doctrine of
causa
continentia
unless
it has complied with the pre-jurisdictional facts that would entitle
it to litigate in the forum concerned. For example,
a party who has
not yet applied with the provisions of section 3(1) of the Limitation
of Proceedings Against Certain Organs of
State Act
5
cannot invoke
causa
continentia
in
order to prosecute a claim which the Act is applicable. In the
context of the LRA, an applicant cannot invoke
causa
continentia
unless
it has complied with the referral provisions that are applicable to
the forum to which it seeks a hearing. In the case of
a dispute which
is governed by the provisions of section 191(5)(a)(ii) of the LRA the
applicant can rely on the doctrine of
causa
continentia
only
where there has been a referral of its dispute to the Labour Court by
the Director of the CCMA in terms of section 191(6) of
the LRA.
[10] The applicant’s
dispute has not been referred to the Labour Court by the Director of
the CCMA acting in terms of section
191(1)(6) of the LRA. This means
that the applicant’s reliance on the doctrine of
causa
continentia
must
fail. I therefore, have to uphold the exception that this Court lacks
jurisdiction to hear the constructive dismissal claim,
but I will, in
terms of section 158(2)(a) of the LRA, stay its prosecution in this
Court and refer it to arbitration by the CCMA.
[11] The respondent also
avers that the statement of claim fails to disclose a cause of
action. The first complaint in this regard
is that the applicant
avers that his functions and authority became watered down, but does
not plead sufficient facts to indicate
in what respects his functions
and authority became watered down. I do not agree with this
allegation, taken alone, or together
with the rest of the averments
that have been made do not disclose a case of action. What may be a
problem is a failure to plead
sufficient particularity which is an
irregular step. As I have decided to refer the applicant’s
constructive dismissal claim
to the CCMA, I refrain from making any
ruling in this regard.
[12] The second complaint
is that in paragraph 9 of his statement of claim, the applicant avers
that there was an agreement relating
to the payment of profit shares,
but does not plead the terms of the agreement. In construing a
pleading, I have a duty to construe
it in a manner that makes sense
of it rather than in a manner that destroys it. Flowing from this
duty is that I must not read
this paragraph in isolation, but I must
read it in conjunction with the rest of the statement of claim.
Paragraph 15.2 bears particular
reference. Therein, the applicant
avers that in addition to his remuneration, the applicant was also
eligible for the payment of
an annual bonus in terms of the written
contract of employment referred to in paragraph 15.1. In paragraph
16, he then avers that
on 26 July 2010, and at or near Johannesburg,
the applicant and one Swanepoel who represented the respondent,
agreed on the calculations
for 2009 and 2010 to be paid to the
applicant. In paragraph 17.1, it is averred that the bonuses would be
payable not later than
15 July 2010. In construing the allegation,
in support of the
non-payment of profit shares, I have taken into account the fact that
sometimes bonuses are referred to as profit
shares, and the words
“profit share” occur only in paragraph 9 which appears to
have been intended as a background
to both claims A and B. I,
therefore,
have
come to the conclusion that the applicant used the words “bonus”
and “profit share” interchangeably
and that paragraph 9
must be read together with the other paragraphs that deal with
bonuses. Accordingly, I dismiss the complaint.
[13] The third complaint
is that in paragraph 11 of the statement of claim, the applicant
avers that he was entitled to the payment
of bonus amounts for 2009
and 2010, but does not plead how the amounts were calculated and in
what respect the respondent acted
mala
fide.
My
understanding is that the applicant relies on an agreement with
traceable methods of calculation or formulae. If that is not
so, it
is open to the respondent to assert the contrary. It follows,
therefore,
that
this ground also falls to be dismissed.
[14] The fourth complaint
is that in paragraph 11 of the statement of claim, the applicant
avers that the bonus amounts were agreed
upon by the parties, yet in
paragraph 15.2.1, the applicant avers that the payment of bonuses was
at the sole discretion of the
respondent. However, the complaint goes
on, the applicant has failed to prove
6
that the discretion was
exercised in bad faith, and the details of the agreement. My
understanding of the applicant’s statement
of case is that the
agreement between the parties stipulates that the applicant does not
have a right to claim the payment of a
bonus unless and until the
respondent has exercised its discretion favourably. The respondent,
indeed, exercised its discretion
to pay bonuses and thereafter,
agreed with the applicant what the amount of the bonuses would be. I
do not see how, on the facts
of this case, the decision to pay
bonuses could have been made in bad faith. This, therefore,
makes nonsense of the
complaint that the applicant has failed to allege that the
respondent’s discretion was exercised in
bad faith. I,
therefore,
have decided to dismiss
this complaint as well.
[15] In argument, Ms
Tilly pointed out that in paragraph 20.3 that the applicant simply
claims payment of an amount of R18 000.00
for expenses that he
incurred on behalf of the respondent. The problem with this complaint
is that it does not form part of the
case that the applicant was
invited to meet. Even if it were, if one has regard to paragraph
15.2.2 of the statement of case, it
cannot be said that a cause of
action is not disclosed regarding this claim. The difficulty might be
that the applicant does not
set out how this amount is arrived at,
which is an irregular step. However, the respondent’s case was
that the applicant’s
statement of case failed to disclose a
cause of action. I, therefore, will not make any order against the
applicant in this regard.
[16] Paragraphs 16 and 17
of the statement of claim appear to be vague and embarrassing in that
it is alleged that the agreement
to pay bonuses was concluded on 26
July 2010, but the bonuses were payable on 12 July 2010, a date which
preceded the alleged date
of agreement. This point was not raised in
the heads of argument, nor was it raised when the exception was
heard. However, I do
not wish to make any finding with regard thereto
without having heard the applicant as it might be that had the issue
been better
pleaded, it would emerge that there was backdating. I,
therefore,
recommend
that the applicant should amend these paragraphs so as to remove
uncertainty.
Costs
[17] The applicant has
been partially successful. Therefore, costs must follow the cause.
However, in making a costs order against
the applicant, I am mindful
of the fact that he has been dismissed from his employment, and I
have no reason to believe that he
has another source of income, that
makes his dismissal financially immaterial. I take into account the
fact that it is not consonant
with the constitutional principle of
ubuntu
not to have concern for the fact that a costs order
that I make might affect his ability to live a dignified life and to
care for
his children if he does have. I have also taken into account
that the cause of this application was that he attempted to save
litigation
costs and avoid the possibility of contradictory judgments
on the same factual issues.
[18] In the result, I
make the following order:
1. The exception that the
Labour Court lacks jurisdiction to hear the applicant’s case of
constructive dismissal (“Claim
B”) is upheld.
2. The exception that the
statement of case does not disclose a cause of action is dismissed.
3. Claim B is stayed in
the Labour Court, and is referred for arbitration by the CCMA in
terms of section 158(2)(a) of the LRA.
4. The applicant,
respondent in the exception is ordered to pay the costs which costs
must not exceed R20 000.00. The costs is payable
over a period of 12
months commencing as and from the date of this judgment in equal
instalments.
____________________
MEMANI AJ.
Acting Judge of Labour
Court of South Africa
APPEARANCES
For the Applicant: Van
Niekerk Attorneys
For the Respondent:
Sikander Tayob Attorneys
1
1962
(4) SA 326
(A).
2
Katz
NO v Segal and Others
1977 (2) SA 1038
(C) at 1042B-D.
3
See
Thomas v BMW South Africa
1996 (2) SA 106
(C) at 127G-128B,
Geyser v Nedbank Ltd and Others
:
In re Nedbank Ltd v
Geyser
2006 (5) SA 355
(W) at paras 11-13.
4
See
Berger and Others v Aiken and
Others
1964 (2) SA 396
(W) at 403E-F.
5
40
of 2002.
6
For
“prove” read “allege” or aver”.