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[2014] ZALCJHB 95
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Mpofu v Maxis Grill Marketing (Pty) Ltd (J1217/12) [2014] ZALCJHB 95 (28 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO J 1217/12
NOT
REPORTABLE
In
the matter between:
MPOFU,
THOKOZANI
TOGS APPLICANT
and
MAXIS
GRILL MARKETING (PTY)
LTD RESPONDENT
Application
heard: 25 March 2014
Judgment
delivered: 28 March 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application in terms of s 158 (1) (c) to have an
arbitration award made an order of court. The award was issued on
28
April 2011, under the auspices of the National Bargaining Council for
the Restaurant Catering and Allied Trades. In the award,
the
arbitrator found that the respondent had unfairly dismissed the
applicant. She ordered that the applicant be reinstated with
retrospective effect and that he be paid back pay, quantified in the
amount of R52 920.00.
Factual
background
[2]
It is common cause that the respondent has failed to comply with the
award. On 24 May 2012, the applicant filed the present
application.
In the answering affidavit filed on the respondent’s
behalf, a Mr Philip Maré of the General, Domestic
and
Professional Employers’ Organisation, deposed to the following:
‘
5.1.2
The Respondent, through me had several meetings with the Applicant
wherein same respondent agreed to settle the
matter between the
parties upon receipt of monies to the respondent and on the basis
that he would not return to the workplace.
Applicant refers himself
to his former employer and has not taken phone calls from the
employer calling him. Mr Mpofu is thus a
lying, despicable,
disingenuous, opportunistic and poorly constructed character.
5.1.3 I
tried contacted the applicant by way of telephone on the following
dates and times on the 20
th
, 21
st
and 22
nd
of May 2011 inclusive of an sms sent to the respondent that the
applicant accepts he’s terms of full payment and that it
is
agreed he does not return to the workplace. When he says he was not
contacted he is lying. He is a disingenuous, opportunistic
and poorly
constructed character. Him referring to it in dismay and that he was
surprised it should be disregarded with the disdain
and contempt it
deserves. After agreeing to taking the money so owed to him from the
award and the matter not proceeding to review
and then turning around
and denying having agreed to it is sick and twisted. When he denies
that there has been compliance with
the award should be disregarded
and should be dismissed with the contempt it deserves (sic).
[3]
The applicant filed a replying affidavit in which he denied having
agreed to any kind of settlement with the respondent. He
states that
the respondent attempted to force him to accept an offer of R30 000
and not return to work, which he refused.
[4]
On 23 August 2013, presumably on account of the dispute effect
disclosed in the papers, this court ordered that the matter be
referred for the hearing of oral evidence.
[5]
Mare testified that in his capacity as a representative of the
respondent, he was instructed by the respondent, after the
arbitration
award had been issued, to discuss the various options
available to it. The respondent wished to apply to have the award
reviewed
and set aside; alternatively, it wished to offer the
applicant an amount less than that to which the applicant was
entitled in
terms of the award by way of a settlement.
[6]
Mare testified that he had a number of meetings with the applicant,
the most significant of which was a meeting on 17 May 2011,
held in
the respondent’s boardroom. He told the applicant in that if no
settlement was possible, the respondent intended
to take the award on
review. He offered the applicant some R 30,000 to settle the matter,
but without the option of reinstatement.
Mare stated that the
applicant rejected the offer and said that if he was not to be
reinstated, he wished to receive the full amount
of the back pay
awarded. Mare testified that he did not have a mandate to agree to
the proposal, and needed to consult the respondent.
He went to speak
to his client to explain terms of what the applicant sought. He
received instructions to the effect that the applicant’s
offer
was acceptable and return to the boardroom. When he arrived there,
the applicant had left.
[7]
Mare states that he then tried calling the applicant to tell him that
the respondent had accepted his proposal and that he followed
up with
a number of SMSs to advise the applicant that his offer had been
accepted. In particular, on 22 May 2011, he sent an SMS
to the
respondent and the following terms:
‘
Please contact
Philip Mare re Maxis revised offer. They are willing to pay you the
amount and agree that you do not come back. I
have left messages as
well…
[8]
Mare stated further that in his mind, the applicant had agreed to
settle the matter and he accordingly went ahead with arrangements
to
apply for a tax directive and to pay the applicant a sum of R52 920,
being the back pay in terms of the award.
[9]
On about 30 May 2011, an official from the bargaining council
contacted Mare to tell him that the applicant was at the council’s
offices and wished to make the arbitration award an order of court.
Mare testified that he was upset and that in his mind there
was an
agreement that the applicant would be paid his back pay, he
would abandon his right to reinstatement and that of the
respondent
would not seek to review the award. On 2 June 2011 Mare sent an email
to the council in which he recorded that the respondent
had complied
with the award by making contact with the applicant and making
payment of the monies in terms of the award. The email
concluded by
noting that the applicant had agreed verbally not to return to the
workplace. It is not disputed that on 1 June 2011,
the respondent
deposited the amount of the back pay, less tax, into the applicant’s
bank account.
[10]
What followed is inexplicable. On 6 June 2011, the respondent issued
a notice to attend a disciplinary hearing calling on the
applicant to
attend a hearing to explain his unauthorised absence from the
workplace and what is described as “conduct negatively
affecting the employment relationship”. The applicant did not
attend at this hearing and was dismissed in absentia. I understood
Mare to suggest that this dismissal was to effect some form of
insurance and their to the respondent would rely on it if the
applicant
where the reinstated. If that is so, the less said about
the so-called dismissal the better; on the respondent’s own
version
the applicant had been found to be unfairly dismissed and
reinstated, but had agreed to abandon any right to reinstatement.
[11]
The applicant’s version is that after receipt of the
arbitration award and a number of unsuccessful attempts to present
himself for work at the respondent’s workplace, he was told
ultimately to return on 13 May 2011. He was told by Mare that
the
respondent wished to settle the case for R30 000 he refused that
offer. The applicant specifically denies any agreement to
the effect
that he would accept the back pay owing to him and abandon his right
to be reinstated. In the course of his evidence,
the applicant stated
that Mare left the room after he, the applicant, had rejected the
offer of R30 000 made by Mare. At that point,
Mare left the room for
about five minutes. When he returned, the meeting continued. The
applicant denied that he walked out
of the meeting – he stated
that he left when the meeting was over.
[12]
After the applicant had been cross-examined, it transpired that the
applicant had recorded the meeting on 17 May 2011 on his
cellphone.
The court issued directives as to the transcription of the recording
and on 4 March 2014, the applicant produced a transcribed
record.
When proceedings resumed on 25 March 2014, Mr Schabort, who appeared
for the respondent, did not object to the admission
of the transcript
into evidence. However, he submitted that there were a number of
inaccuracies in the transcript and more fundamentally,
that the
transcript did not reflect the entire meeting. In particular, he
submitted that some 14 minutes were unaccounted for.
Mare was
recalled and testified that the transcription stopped at a point were
the meeting had not yet been concluded. He testified
that the
agreement he contends was reached with the first respondent was
reached at a point in the meeting not reflected in the
transcription.
Analysis
[13]
Section 158 (1) (c) empowers this court to make arbitration awards
issued by commissioners and bargaining council arbitrators
orders of
court, thus bringing to bear the court’s power of enforcement.
The power to make an award an order of court
is a discretionary
power, to be exercised judicially. As I have indicated, in the
present instance, the respondent does not dispute
the existence of
the award, nor does it dispute that it has failed to comply with its
terms. The respondent has raised the defence
of the existence of a
settlement agreement in terms of which the applicant agreed to
abandon his right to reinstatement in terms
of the award, and to
accept only that part of the award which entitled him to back pay.
[14]
The respondent accepts that it bears the onus to prove the existence
of the agreement for which it contends. Mare’s evidence,
in
essence, is that after the respondent’s offer of R 30 000 was
rejected, the applicant stated that for him not to come
back to work,
he would accept payment of the full amount of back pay. He left
the room to get instructions, he received instructions
to settle on
that basis and when he returned to the room, the applicant had left.
In other words, Mare contends that after the
rejection of the
respondent’s offer, the applicant made a counter proposal that
he accepted, conditional only on ratification
by the respondent.
[15]
Mare concedes that the agreement for which he contends was never
reduced to writing. The best available evidence of the
meeting
on 17 May is the recording made by the applicant. Even if allowance
were to be made for inaccuracies in the transcription
and even if, as
the respondent contends, the meeting continued for a further 14
minutes, the tenor of the conversation supports
the applicant’s
version. The discussion comprises an attempt by Mare to persuade the
applicant to accept a financial settlement,
a proposal backed up by
the threat of a review and the inevitable delay that would be
occasioned by a review application. It was
he who said “
No,
but you know, if you say, look, give me my R 52 000 and I will leave
and we sign an agreement, and that agreement there, we
will pay you
on tax value, and failure to give us tax directive , they will pay
whatever is left
.” The respondent’s attitude was
plain and put to the applicant more than once – the respondent
was not going
to comply with the arbitration award. The applicant’s
attitude on the other hand, was that the award was right, and that he
wanted justice from the respondent. He is recorded as saying “
But
what you are saying I, those people for the bargaining council, they
are the people that when you have got problems, you have
to go to
them. So if they have got a decision they make, people must comply
with it. If they did not comply with it, then they
must submit to the
Labour Court, which is the step we should take then, because the
thing that worries me is that I want justice
to come, I want justice
because there is nothing wrong that I did. I did not do anything
wrong.”
This statement is made toward the end of the
recorded portion of the conversation between the applicant and Mare.
Mare fairly conceded
that there was nothing in the transcript that
supported his version that he reached an agreement with the applicant
on the terms
for which he contends. It is unlikely that the
applicant, having made his position as clear as he did, would soon
afterward reverse
his position either by making a proposal to Mare
that he would accept the sum of R52 490 in settlement, or by
accepting such a
proposal from Mare.
[16]
The respondent’s conduct after the meeting on 17 May is also
indicative of a lack of confidence in its version. First,
Mare’s
sms sent to the applicant on 22 May 2011 refers to “Maxi’s
revised offer”. It continues “They
are willing to pay you
the amount and agree you do not come back. “ This is not the
language of a party to an agreement concluded
on unequivocal terms,
where ratification by a principal was the only suspensive condition.
The language of the sms is tentative
– it suggests an offer
made by the respondent and invites a response by the applicant. Had
the parties reached a firm agreement
on 17 May, the language would
have been very different. It would have recorded the terms of the
agreement and indicated that the
applicant was bound by it. Secondly,
Mare testified that after the applicant had taken steps to enforce
the award, the respondent
convened a disciplinary enquiry at which
charges of unauthorized absence from the workplace and conduct
negatively affecting the
employment relationship were brought against
the applicant. The legal absurdity of these charges and the
subsequent ‘dismissal’
aside, the irresistible conclusion
is that having failed to secure confirmation from the applicant of
the terms of an agreement
that the respondent alleged to exist, the
respondent was prepared to resort to desperate and disingenuous
measures to avoid compliance
with the award.
[17]
There is no reason for me to doubt the evidence given by the
applicant. He gave clear testimony on the steps he had taken to
enforce the award granted in his favour, and the attempts by the
respondent to frustrate the implementation of that award.
As I
have indicated, even if the transcript is not a perfectly accurate
reflection of the applicant’s meeting with Mare,
it supports
the applicant’s version. In my view, the probabilities favour
the applicant and on the evidence before me, I
am unable to conclude
that the applicant and the respondent concluded an agreement in terms
of which the applicant abandoned his
right to reinstatement. It
follows that the arbitration award should be made an order of court.
The consequence of course is that
the applicant is to be reinstated
in the respondent’s employ with retrospective effect, from 12
October 2010, and paid all
monies due to him from that date, less
only the amount already paid in terms of the award.
I
make the following order:
1. The
arbitration award issued by Commissioner MS Raffee on 31 March 2011
under case number DSP/ARB 10/11/31
is made an order of court.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Representation
Applicant:
In person
For
the respondent: Mr J Schabort, McGregor Erasmus Attorneys