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[2014] ZALCJHB 140
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Mathopa v Pioneer Foods (Pty) Ltd t/a Sasko Milling and Baking (Grobersdal Bakery) (JS25/2011) [2014] ZALCJHB 140 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO: JS 25/2011
In
the matter between:
DAVID
MANKU
MATHOPA
Applicant
and
PIONEER
FOODS (PTY) LTD t/a
SASKO
MILLING AND BAKING
(GROBERSDAL
BAKERY)
Respondent
Heard
: 15-16 August 2013
Delivered
: 16 August 2013
Date
edited : 30 April 2014
Summary
: No dismissal on the basis of operational requirements. Parties have
reached an agreement
to terminate the employment relationship.
EX-TEMPORE JUDGMENT
AC
BASSON, J
Introduction
[1]
The applicant in this matter is Mr David
Mathopa (‘Mathopa’) who claimed that he was unfairly
dismissed on the basis
of operational requirements. The respondent is
Pioneer Foods (Pty) Limited trading as SASCO Milling and Baking
(Groblersdal Bakery).
[2]
In light of the fact that the issues in
this matter are extremely crisp, I intend to give brief
ex
tempore
reasons for my order.
[3]
According
to the pre-trial minute the Court is required to decide the following
issues: Firstly whether Mathopa's services were
terminated by
agreement as it is the respondent’s contention that Mathopa was
not dismissed in the context of section 186
of the Labour Relations
Act
[1]
(‘the LRA’)
and secondly, in the alternative, whether the retrenchment was
procedurally and substantively fair.
[4]
Mathopa contended that he was dismissed on the basis of operational
requirements and that his dismissal was substantively and
procedurally unfair. During the course of these proceedings Mathopa
also indicated that he wished to be reinstated. He also
made it
clear that he was unhappy with the manner in which severance pay was
calculated. His last working day was 30 September
2010, I will return
to the issue of severance pay hereinbelow.
Brief exposition of
the relevant facts
The 2010 Dispute
[5]
According to the respondent Mathopa’s
employment was terminated by mutual agreement by way of the
conclusion of a settlement
agreement (the ‘2010 settlement
agreement’). I will return to this settlement agreement herein
below.
[6]
The respondent contended that its Polokwane
Bakery was upgraded and this bakery took over some of the production
of the Groblersdal
Bakery, this according to the respondent, resulted
in one shift at the Groblersdal Bakery becoming redundant. According
to the
respondent retrenchment consultations were conducted with the
staff.
[7
]
It appears from the evidence that Mathopa
addressed a letter to the respondent acknowledging that he did not
have a problem with
the retrenchment and that he only needed a letter
from the respondent giving an undertaking that he would be
called back
to work in the event a vacancy arose within the next 12
months. It further appears from the evidence that the dispute between
the
parties is not about the unfair retrenchment of Mathopa but more
about the manner in which his severance pay was calculated. According
to Mathopa, his severance pay should have been calculated as from
1984. He based his argument on the fact that he had previously
obtained relief from the CCMA in terms of a default judgment
reinstating him to his previous position. (I will return to the terms
of this settlement agreement herein below as it is in dispute what
was agreed upon.) Accordingly his severance should be calculated
as
from 1984.
The 2007 Dispute
[8]
Mathopa was initially employed on
26 May 1984 at the respondent's Bochum Bakery. At one
stage Mathopa was dismissed
by the respondent for misconduct. He,
however, successfully obtained a default award from the CCMA and in
terms of the arbitration
award that was issued on 21 January 2007
he was reinstated. The award was certified on 11 April 2007.
By the time the default award was received by the respondent, the
Bochum Bakery had already been closed down and on 1 December
2007
Mathopa commenced work at the Groblersdal Bakery. Mathopa worked as a
shift supervisor and received an annual package of R
137 960.00.
[9]
Because the respondent was not in a
position to comply with the terms of the default award, the parties
concluded a formal settlement
agreement in terms of which (according
to the respondent) Mathopa was afforded the back-pay and interest as
per the default arbitration
award and
re-employment
into the position of a shift supervisor at the Groblersdal Bakery.
According to the respondent Mathopa’s entitlement to severance
pay for the years 1984 – 2007 had accordingly been compromised
by him entering into the settlement agreement which he never
disputed.
[10]
It is clear from the papers and the
evidence before the Court that the parties have in fact reached a
settlement agreement. What
is, however, in dispute is what was
contained in the 2007 settlement agreement that was signed by Mathopa
on 12 November 2007.
[11]
Two versions of the 2007 settlement have
been placed before the Court. In the respondent’s bundle the
2007 settlement agreement
is reflected on page 6. This version of the
settlement agreement comprises five paragraphs. Paragraph 4
states that Mathopa
will be
re-employed
as from
01 December 2007
.
It is common cause that Mathopa in fact commenced his employment a
little bit earlier. Paragraph 5 of the settlement agreement
provides
for an undertaking that the respondent will assist with the furniture
removal of Mathopa.
[12]
Mathopa handed in his version of the 2007
settlement agreement and conspicuously absent from his version of the
settlement agreement
is paragraphs 4 and 5. In fact, half of
the page is completely blank.
[13]
At the outset I must point out that I find
it highly improbable that there can be two version of the same
settlement agreement especially
where the most important part of the
settlement agreement is missing from the one submitted by the party
who has an interest in
not having paragraph 5 contained in the
settlement agreement. I have also listened carefully to the evidence
of Mr Gouws who testified
on behalf of the respondent in this regard.
Gouws struck me as a very honest and straightforward witness: he
answered every single
question that was posed to him sometimes under
very difficult circumstances. Gouws’ evidence in this regard
was clear: He
was contacted by Human Resources and was informed that
Mathopa would be
re-employed
in the bakery in Groblersdal where he (Gouws) was employed. Gouws
testified that he received the settlement agreement and that
he also
attached his signature to the agreement not as a witness but to
indicate that he was in agreement with what was contained
in the
settlement agreement. Gouw’s evidence in this regard was clear:
The agreement was that Mathopa would be
re-employed
.
His evidence, which I also accept, was that he had spoken to Mathopa
on various occasions about the fact that he (Mathopa)
was
re-employed.
[14]
In respect of the settlement agreement
concluded on 12 November 2007 I therefore make the
following findings. Firstly,
I accept that the settlement
agreement was signed by Mathopa despite contradictory evidence by
Mathopa on the issue of signing
the agreement. In the end Mathopa
conceded that he did in fact sign the settlement agreement.
Secondly, I accept that the
settlement agreement contained paragraphs
4 and 5 (as reflected on the copy submitted by the respondent), and I
accept that the
agreement was that Mathopa would be
re-employed
.
[15]
Having therefore made this factual finding
that Mathopa was in fact
re-employed
it follows in my view that severance pay had to be calculated with
reference to the date on which he commenced his employment in
terms
of the 2007 settlement agreement - which was November 2007.
[16]
There is a further aspect that is important
and that is the fact that Mathopa had signed this settlement
agreement on 12 November
2007 (accepting a monetary settlement and
re-employment). It was submitted on behalf of the respondent
that if Mathopa had
wanted to dispute this settlement agreement he
ought to have challenged its validity within three years from the
date of its conclusion.
Mathopa served the present claim
against the respondent on 17 January 2011, more than three years from
the date of the conclusion
of the settlement agreement. Mathopa’s
claim to change the validity of the 2007 agreement had thus
prescribed and as a result
his claim that his severance pay be
calculated from 1984 has also prescribed.
[17]
This brings me to the last issue and that
is the agreement reached on 11 September 2010 in respect of Mathopa’s
retrenchment.
I do not intend to set out the factual position
that preceded the conclusion of this agreement as it is succinctly
recorded in
the respondent's heads of argument. What is clear from
the evidence (the documentary evidence and the evidence of Bouwer),
is that
the parties had reached a mutual agreement that Mathopa would
accept his retrenchment. It is important to point out that on 10
September 2010 Mathopa, in his own handwriting, wrote a letter (which
is co-signed by the shop steward) stating unequivocally that
he did
not dispute the retrenchment: "I do not have the problem of
retrenchment".
[18]
Soon thereafter, on 11 September Mathopa
signed a settlement agreement which was also co-signed by two
witnesses in which it is
recorded that Mathopa accepted his
retrenchment. The agreement also provided for a severance package of
one week’s remuneration
for every completed year of service.
[19]
In
light of this agreement, I am therefore of the view that Mathopa was
not dismissed as contemplated by the LRA but that the employment
relationship came to an end by consensus. In this regard it is clear
from case law that once parties enter into a settlement agreement
it
puts to rest the dispute between the parties. See in this
regard:
Ngwathe
Local Municipality v South African Local Government Bargaining
Council and others
[2]
See
also
Buthelezi
v Liberty Group Ltd
[3]
In
this decision the court noted as a general rule the following:
“
[7]
Is the settlement agreement valid and binding between the parties? If
yes
cadit quaestio
.
It is correct as submitted by the respondent's representative that as
a general rule a person is bound by the terms of a signed
agreement -
the caveat rule. The rule applies even where the signatory has not
read the agreement. See in this regard
Bhikhagee
v Southern Aviation (Pty) Ltd
. A party
seeking to resile from the agreement has to prove that the agreement
is not binding on him or her (Union Government v
Gowar).”
[20]
There is nothing before this Court to show
that this agreement is not binding. Firstly the documentary
evidence supports the
fact that the agreement is binding, and
secondly the evidence of Bouwer, which I accept over the evidence of
Mathopa, also confirm
that the agreement was properly entered into.
Order
[21]
In the event the applicant's claim is
dismissed. In respect of costs I have taken note of the
evidence that Mathopa is currently
unemployed. I therefore make no
order as to costs.
_______________________
AC BASSON, J
Judge of the Labour
Court
APPEARANCES:
For
the Applicant
: Mr David Mathopa in person
For
the Respondent
:
Advocate F Boda
Instructed
by
: Vermaark Attorneys
[1]
Act
66 of 1995.
[2]
[2011]
12 BLLR 1206 (LC).
[3]
(2012)
33 ILJ 607 (LC).