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[2013] ZALCCT 2
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Du Randt v Ultramat South Africa (Pty) Ltd and Another (C 376/2012) [2013] ZALCCT 2; [2013] 6 BLLR 573 (LC); (2013) 34 ILJ 2228 (LC) (15 February 2013)
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C 376/2012
In the matter between:
Deon DU RANDT
Applicant
and
ULTRAMAT SOUTH AFRICA (PTY) LTD
First Respondent
IAN SCHWARTZ
Second Respondent
Heard
:
29 January 2013
Delivered
:
15 February 2013
Summary:
Alleged unilateral change to terms and conditions of
employment – application to reinstate terms and conditions.
Unfair labour
practice – demotion – alternative remedy to
refer unfair labour practice dispute to CCMA. Application dismissed.
JUDGMENT
STEENKAMP J
Introduction
[1] The applicant is a single employee. He alleges that the
respondent unilaterally varied his terms and conditions of
employment.
He referred a dispute to the CCMA in terms of s 64(4) of
the LRA
1
;
but he cannot strike. What is his remedy?
Background facts
[2] The applicant is employed with the first respondent, Ultramat
South Africa (Pty) Ltd, as its regional manager for the Western
Cape.
He is also a shareholder and former director of Ultramat. The second
respondent, Ian Schwartz, is its sole remaining director
and its
largest shareholder. It is unclear why the applicant has sought to
cite the second respondent in his personal capacity.
Du Randt says in
his founding affidavit that he did so “as I believe that his
citation as a second respondent will ensure
that the matter receives
the appropriate attention.” That is no basis in law to join an
individual as a party to legal proceedings.
[3] The applicant was initially based in Gauteng. His wife was
offered a job in Cape Town and Ultramat agreed that he could move
to
Cape Town to accompany her. The parties agreed that he would work
from home. Ultramat would pay him a monthly allowance on top
his
salary to set up a home office and to pay for telephone and ADSL
lines.
[4] The applicant started working from home in Tokai on this basis in
July 2008. Ultramat eventually established an office in Edgemead.
Towards the end of 2011, Ultramat formed the view that it was too
costly to maintain that office and to contribute to the costs
of Du
Randt keeping a home office and working from home. Schwartz, the sole
director, decided to reduce Ultramat’s losses
in the Western
Cape and to transfer its administrative functions to the head office
in Johannesburg. Schwartz instructed the applicant
to start working
from the Edgemead office and instructed him to report for duty there.
The applicant refused.
[5] The applicant also alleges that Schwarz removed the financial
management of Ultramat from his control. The applicant, as the
financial manager, had oversight of Ultramat’s finances. The
respondents say that the applicant mismanaged those finances,
and
that contributed to the decision to move the finance function to
Johannesburg. They wanted the applicant to concentrate on
sales.
[6] On 14 December 2011 the respondents passed the following
resolution:
“
It was
resolved by the directors of Ultramat that as from 1 January 2012 the
Ultramat home office of D du Randt in Cape Town will
no longer
operate. Mr du Randt will be based in the Ultramat premises in
Edgemead.
Mr du Randt will be afforded the
opportunity to purchase any of the fixed fittings belonging to
Ultramat in his home office, at
their depreciated value as at 31
December 2011. This amount may be debited from his loan account if he
so wishes, subject to the
general provisions of the shareholders’
agreement covering shareholder loans.”
[7] Schwarz telephoned Du Randt and informed him accordingly. The
outcome of the conversation was inconclusive.
[8] On 19 January 2012, Schwarz sent Du Randt an email, stating
inter
alia:
“
I have
been giving the issue of your sales role in Cape Town further
consideration since our conversation in December. I’ve
come to
the conclusion that, as I had first decided, it would probably be in
Ultramat’s best interests if the premises were
to be
consolidated, you were to work from the depot in Edgemead and the
home office were to be closed.”
[9] On 28 February 2012, the respondents’ attorneys, Mahons,
sent a letter to Du Randt’s attorneys, HeroldGie, setting
out
the history and instructing him to report for duty in Edgemead by 3
March 2012. He did not.
[10] Ultramat viewed the applicant’s refusal to report to the
Edgemead office as “desertion” and stopped paying
him,
asserting that he is refusing to tender his services.
[11] On 15 February 2012 the applicant’s attorneys, HeroldGie,
addressed a letter to the respondents under the heading:
“
UNFAIR
LABOUR PRACTICE AND OBJECTION TO AMENDMENT OF EMPLOYMENT STATUS OF D
DU RANDT”.
[12] In the letter, the applicant’s attorney referred to
Schwarz’s email of 19 January 2012. He asserted that Du Randt’s
proposed position in terms of the email would be “a significant
and material downgrade in responsibilities and authority,
and
restructuring of income prospects.” He continued:
“
We
advise that unilateral actions of yourself [
sic
],
Mr I Schwarz, in altering or amending, or attempting to alter or
amend the employment status of our client constitutes not only
a
breach of the shareholders’ agreement, but constitutes an
‘unfair labour practice’ in terms of section 186(2)(a)
of
the Labour Relations Act, 1995 (hereinafter referred to as ‘unfair
labour practice’).”
[13] After quoting section 186(2)(a) of the LRA, the applicant’s
attorney went on to say:
“
We
advise that the above is unacceptable, and our instructions are to
defend same [
sic
]
vehemently, including the applying for an interdict to prevent the
current Board from enforcing the provisions of the abovementioned
e-mail and to declare such actions as ‘unfair labour
practice’.”
After asking for an undertaking
by 27 February 2012 that Du Randt’s “current position of
employment and such status
as is enjoyed for the past five years
shall remain in place”, the attorney concluded:
“
Should
you fail, refuse or neglect to respond on or before the
abovementioned date, our client will have no other choice than to
proceed to the High Court to obtain an interdict against the Board
decision, and to apply for the Labour Court for an Order in
terms of
the 186(2)(a) [
sic
]
of the LRA declaring the action as ‘unfair labour practice’,
which includes compensation in the amount of 12 (twelve
) months
[
sic
]
salary, the legal cost occasioned thereby to be for your account.”
[14] It is not clear on what basis the applicant’s attorney
advised him that he could approach this Court for relief in terms
of
s 186(2)(a) of the LRA. Unfair labour practice disputes arising from
s 186(2)(a) of the LRA must be referred to the CCMA for
conciliation
and, if necessary, arbitration.
2
This Court has no jurisdiction to entertain referrals in terms of s
186(2)(a).
[15] The respondents’ attorneys, Mahons, responded on 28
February 2012.They denied that Du Randt had been demoted; recorded
that his refusal to report for duty in Edgemead was viewed as the
failure to obey a lawful instruction, alternatively desertion;
and
added:
“
We
wish to place on record that our client does not wish to damage its
relationship with your client and to the extent that he believes
that
he is demoted then he is invited to make submissions a to why he
believes that his status has been changed, which submissions
our
client will consider, failing which we are confident you will advise
your client on his rights to refer a dispute to the CCMA.”
[16] The applicant did not take up this invitation. Instead, despite
the threat to refer an unfair labour practice dispute to this
Court
(which would in any event have been an irregular step), the applicant
– assisted by HeroldGie -- referred a dispute
to the CCMA in
terms of s 64(4) of the LRA on 5 March 2012, alleging a unilateral
change to his terms and conditions of employment.
Conciliation failed
and on 28 March 2012 the commissioner issued a certificate recording
that the dispute remained unresolved.
Apparently because the
applicant had referred a dispute in terms of s 64 of the LRA, the
commissioner ticked the box “strike/lockout”
on the
pro
forma
CCMA certificate under the heading, “If this dispute
remains unresolved, it can be referred to [strike/lockout]”.
[17] The applicant, apparently acting on legal advice that he could
not strike, brought an urgent application on 21 May 2012, asking
for
an interim order in the following terms:
“
That first and second respondents be
directed to reinstate applicant’s terms and conditions of
employment in full and
retrospective to the end of January 2012 as
set out in Annexure A to the Notice of Motion;
Directing that first and second respondents pay to applicant all
amounts due in terms of the terms and conditions of employment
as
set out in Annexure A hereto;
First and second respondents are interdicted from unilaterally
amending applicant’s terms and conditions of employment.”
[18] The applicant did not pursue the application for urgent interim
relief. Instead, the matter was eventually set down for hearing
on
the opposed motion roll on 29 January 2013 as an opposed application
for final relief. In essence, the applicant seeks specific
performance and interdictory relief.
Relief sought
[19] The applicant now seeks the following (final) relief:
Directing the respondents to reinstate his terms and conditions in
full;
Directing the respondents to pay him all amounts due to him in
terms of those conditions of employment; and
An interdict preventing the respondents from further unilaterally
amending his terms and conditions of employment.
Evaluation/ Analysis
[20] The respondent relies on an express, tacit or implied agreement
that the applicant would continue working from home only as
long as
that was in the interests of Ultramat and that it was not agreed to
be a permanent arrangement.
[21] That assertion raises a number of disputes of fact. However, it
is not necessary, in my view, to refer the dispute to oral
evidence.
That is because the applicant has not met the requirements for final
relief. I will deal with those requirements, as
set out in
Setlogelo
v Setlogelo.
3
A clear right?
[22] The employee has a clear right to remuneration in terms of his
contract of employment. The question that arises is whether
he has
continued to tender his services in terms of that contract of
employment.
[23] This dispute, like so many others before this Court, highlights
once again the importance of clear written agreements. No
such
agreement exists between the parties. They agree that the employee
was initially entitled to work from home and that Ultramat
would
contribute to the costs of a home office; what is not clear, is
whether that arrangement was meant to endure in perpetuity.
[24] This material dispute cannot be resolved on the papers. If this
were the only issue on which the matter could be decided,
it would
have to be referred to oral evidence in terms of rule 7(7)(b). But
the applicant faces an insurmountable difficulty, even
if the Court
were to accept that there appears to be a continuing invasion of his
rights. I turn to that element.
Alternative remedy
[25] The applicant has asserted that he was subjected to an unfair
labour practice. If that is so, he has a clear alternative remedy,
i.e. to refer an unfair labour practice dispute to the CCMA.
[26] As things stand, the applicant did refer a dispute to the CCMA,
but he did so in terms of s 64(4) instead of s 186(2)(a) of
the LRA.
Section 64 sets out the prerequisites for a protected strike.
Subsection (4) then provides for interim relief in these
circumstances:
“
Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council
or the Commission in terms of subsection (1)(a) may, in the referral,
and for the period referred to in subsection (1)(a) –
(a) require the employer not to
implement unilaterally the change to terms and conditions of
employment; or
(b) if the employer has already
implemented the change unilaterally, require the employer to restore
the terms and conditions that
applied before the change.”
[27] The difficulty that the employee faced when conciliation failed,
is that the relief envisaged for employees and trade unions
in those
circumstances is strike action. Counsel for both parties appeared to
be
ad idem
that a single employee cannot strike, but neither
of them could cite any authority for that proposition. Yet such
authority does
exist. In
Schoeman v Samsung Electronics SA (Pty)
Ltd
4
Landman J held that an individual employee cannot strike. And I agree
with the view of the learned authors in
Labour Law through the
Cases
5
that the contrary view expressed in
Co-operative Worker
Association v Petroleum Oil & Gas Co-operative of SA
6
is not consistent with the characterisation of “strike”
as “concerted” action.
[28] In these circumstances, a single employee would normally still
have the remedy of specific performance available to him. But
in this
case, the employee – advised and assisted by his attorneys –
clearly nailed his colours to the mast of an unfair
labour practice
in terms of s 186(1)(a) of the LRA. He asserted that he had been
demoted. Given that assertion, he has an alternative
remedy, i.e. to
refer an unfair labour practice dispute to the CCMA in terms of s
191(1)(a) of the LRA. He has not exhausted that
alternative remedy.
Conclusion
[29] For these reasons, the applicant has not satisfied the
requirements for final relief.
[30] Both parties asked for punitive costs. I do not agree that it
would be appropriate. Costs should follow the result, to be
taxed on
a party and party scale.
Order
[31] The application is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
G Oliver
Instructed by
HeroldGie, Cape Town.
RESPONDENTS:
MA Lennox
Instructed by Mahons
Attorneys, Johannesburg.
1
Labour
Realtions Act 66 of 1995
.
2
LRA
s 191(1)(a).
3
">
3
1914
AD 221.
4
[1997]
10 BLLR 1364
(LC) at 1367.
5
Du
Toit et al,
Labour Law through the Cases
(LexisNexis) Issue
18 at LRA 9-25.
6
[2007]
1 BLLR 55
(LC) para [23].