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[2015] ZALCJHB 53
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Mamelodi Sundowns Football Club (Pty) Ltd v Ngomane and Others (JR2710/10) [2015] ZALCJHB 53 (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Judgment
Case
No: JR2710/10
DATE:
24 FEBRUARY 2015
Reportable
Of
interest to other judges
In
the matter between:
MAMELODI
SUNDOWNS FOOTBALL CLUB (PTY)
LTD
..............................................
Applicant
And
Simon
Ngomane
............................................................................................................
First
Respondent
CCMA
........................................................................................................................
Second
Respondent
G
Janse Van Vuuren
N.O
............................................................................................
Third
Respondent
Heard:
5 February 2015
Delivered:24
February 2015
Summary:
Review – question whether employee (assistant coach of Sundowns
Football Club) had been dismissed or whether his
contract of
employment expired at end of season.
Judgment
STEENKAMP
J
Introduction
[1]
Mamelodi Sundowns Football Club plays in
the Premier Soccer League. If they get relegated they lose millions.
That is why they place
great store in their coaching team. Mr Simon
Ngomane was appointed as second assistant coach on 1 June 2008. His
contract of employment
– that neither party ever signed -- was
terminated on 14 May 2009. Was he unfairly dismissed or did his
contract expire,
commensurate with the end of the football season?
[2]
Ngomane claims he was dismissed. He
referred an unfair dismissal dispute to the CCMA. The arbitrator
(the third respondent)
agreed with him. He ordered the Club to
pay Ngomane compensation of R480 000, equivalent to 12 months’
remuneration.
The Club argues that the award is reviewable.
Background
facts
[3]
The president of Mamelodi Sundowns Football
Club is Mr Patrice Motsepe, the chairman of African Rainbow Minerals
and a non-practising
attorney. He met Ngomane in a restaurant in
Sandton in May 2008 and offered him a job as assistant coach to Trott
Moloto for Sundowns.
Ngomane says he was offered the position for a
period of “at least three years”; Motsepe never testified
at arbitration.
[4]
Motsepe and Ngomane agreed that Ngomane
would start as assistant coach, together with Harris Choeu, on 1 June
2008. He did so. A
written contract of employment was to be drafted
by the Club’s attorneys of record, Bowman Gilfillan.
[5]
The Club’s financial controller, Mr
Charles Ferreira, presented Ngomane with a draft contract, prepared
by the Club’s
attorneys on instructions from the board of
directors, after he had already started with his coaching duties. The
contract, drafted
by the attorneys and presented by Ferreira,
contained an internal contradiction. Under the definition of
“termination date”,
it indicated that the contract would
terminate on 31 May 2010, i.e. after two years; but elsewhere it
referred to a limited duration
contract for one year.
[6]
Ngomane made comments on the draft contract
by way of handwritten notes. He insisted that Motsepe had offered him
a three year contract.
Ferreira said that the “Club
administration” would consider Ngomane’s comments and get
back to him. That never
happened and the parties never signed a
contract of employment.
[7]
Ngomane nevertheless continued his coaching
duties on the other terms agreed to with Motsepe, such as a monthly
salary of R40 000.
In November 2008, mid-season, the Club
appointed a new head coach, Henri Michel, in the place of Trott
Moloto. Michel brought his
own “technical team” in the
form of coaching staff with him. Moloto and Choeu were told that they
had to focus on recruiting
new players. However, Ngomane retained his
title as assistant coach, as well as his salary.
[8]
In March or April 2009 Michel and his
technical team, in turn, were replaced by Ted Dimitroeu as head coach
with his own assistants.
On 14 May 2009 the Club’s Chief
Operations Officer, Mr Oupa Mminele, called Ngomane to a meeting. He
handed him a letter
referring to a “restructuring” of the
Club’s technical team stating that,
“…
due
to the changes that have been implemented, and the redundancy of your
position as assistant coach, the club has decided to offer
you a
retrenchment package”.
[9]
Mminele told Ngomane to hand over his car
keys and other assets relating to his job and he never returned to
work. Instead
of R40 000 he was paid R25 846, 66 for
the month of May 2009. He referred an unfair dismissal dispute to the
CCMA. Conciliation
failed and it was referred to arbitration.
The
award
[10]
At arbitration the Club argued that Ngomane
had not been dismissed, but that his fixed term contract for 12
months had come to an
end; therefore, went the argument, the CCMA did
not have jurisdiction as there was no dismissal.
[11]
Mr
Nalane
,
who appeared for the Club in these proceedings, also represented it
at the arbitration. He argued that the parties entered into
a fixed
term contract that expired on 31 May 2009.
[12]
The arbitrator rejected that argument for
two reasons:
12.1
Firstly, Mminele (the COO) testified that
Ngomane would have been employed until the end of August – and
not May – 2009.
And Dan Simelane, the chairman of the board –
also the chief executive of African Rainbow Minerals Exploration, who
is legally
trained and has LL B and LL M degrees -- testified that
Ngomane’s employment would have terminated at the end of June
2009.
Both these witnesses also testified that the Board’s
instructions were to retrench Ngomane. That is obviously at odds with
the contention that his contract would simply expire.
12.2
Secondly, Ngomane was dismissed on 14 May
2009. Even if his contract were to expire on 31 May 2009, he was
dismissed prematurely.
He was advised of his “retrenchment”
on that day and Mminele instructed him to hand over the Club’s
assets, including
the keys to the company car. He was also not paid
his full salary for the month.
[13]
The arbitrator found that Ngomane had been
dismissed prior to the date that, even on the Club’s version,
his fixed term employment
contract would have come to an end.
[14]
Turning to the question whether the
dismissal was fair, the arbitrator pointed out that the onus was on
the Club; and that, contrary
to Mr
Nalane
’s
argument that the fixed term contract had expired, both Simelane and
Mminele testified that Ngomane had been retrenched.
[15]
The
arbitrator further noted that the Club never argued that it had
complied with the provisions of s 189 of the LRA
[1]
and that it had fairly dismissed the employee for operational
requirements. However, the Club also “made no effort to justify
the [employee’s] premature dismissal on any other ground and
consequently failed to discharge the onus of proving that the
[employee’s] dismissal (on any ground) had been fair from a
substantive or procedural point of view.”
[16]
The arbitrator then considered whether
Ngomane’s contract would in fact have expired on 31 May 2009,
as that would impact
on the amount of compensation.
[17]
He took into account the following factors
that pointed to the contrary of the Club’s argument that the
parties entered into
a fixed term contract for one year:
17.1
The draft employment contract specified 31
May 2010 (and not 2009) as the termination date. “This
contradicted another clause
to the effect that the contract would
endure for a period of twelve months, but Mr Ferreira conceded that
the [employee] had insisted
that this was incorrect and that the
period should have been longer."
17.2
The fact that Ngomane had been advised of
his “retrenchment” on 14 May 2009. If his contract were
to expire on 31 May
anyway, “why did the [Club] not simply wait
for two more weeks?”
17.3
The COO’s letter of 14 May 2009 made
no mention of the impending termination of the contract on 31 May;
and Mminele’s
evidence showed “that he had no knowledge
of that”.
17.4
The letter from Bowman Gilfillan of 10 June
2009 acknowledged that “it was proposed that the maximum
duration of your client’s
employment would be for three years,
however that proposal was subsequently reduced to a maximum duration
of one year, although
the definition of ‘termination date’
in the draft contract was inadvertently not adjusted to reflect
that”.
17.5
The employee made out a
prima
facie
case that he had been employed
for more than one year. The person best place to rebut that was
Motsepe, yet he never testified.
[18]
The arbitrator then took into account that
the employee, in his referral to the CCMA, stated that he had been
employed for “a
minimum of two years” and that his
attorney had relied on 31 May 2010 as the termination date, as
reflected in the unsigned
draft contract. He accepted, for the
purposes of compensation, that the parties had intended Ngomane to be
appointed for two years.
In those circumstances he ordered the Club
to pay him compensation equivalent to twelve months’ salary at
R40000 per month.
Evaluation
[19]
The
Club’s main challenge remains the question of jurisdiction,
i.e. whether Ngomane had been dismissed. The test on review
in such a
challenge is not the reasonableness test in
Sidumo
[2]
,
but whether the arbitrator was right or wrong.
[3]
[20]
In my view, the arbitrator was correct. He
carefully considered all the factors outlined above. The Club’s
witnesses were
inconsistent; not one of them could say with any
certainty that Ngomane had been employed for a fixed term of twelve
months. If
the Board were so adamant about that intention, it would
surely have ensured that Ngomane sign a contract to that effect. And
even
at the stage of this hearing Mr
Nalane
simply could not explain why the Club would terminate Ngomane’s
employment two weeks before it was due to expire anyway,
coupled with
an offer of a severance package in what was termed a retrenchment.
Both Simelane, the chairman of the board, who is
legally qualified,
and Mminele, a high powered COO who testified that was responsible
for staff intake and “the exits of
staff” at the Club,
viewed it as a retrenchment. Simelane went further to say that the
board issued the instruction that
Ngomane should be retrenched. That
is simply incompatible with the argument that the contract of
employment expired with the effluxion
of time.
[21]
Mr
Nalane
argued that the arbitrator committed a gross irregularity. He could
not explain what the arbitrator did that amounted to a gross
irregularity.
[22]
With regard to the fairness of the
dismissal, Mr
Nalane
argued that the arbitrator “misconceived the nature of the
inquiry”. I disagree. The arbitrator first had to decide
whether the employee had been dismissed. He decided –
correctly, in my view – that he had. He then had to decide
whether
the dismissal was fair. He ruled that it was. That was a
reasonable decision. The Club appeared to view the dismissal as a
retrenchment;
yet it did not even attempt to follow the procedure set
out in s 189 of the LRA. And, as the arbitrator pointed out, it “made
no effort to justify the [employee]’s premature dismissal on
any other ground.”
Conclusion
[23]
The award is not open to review. That
leaves the question of costs.
[24]
The Club brought the employee to court to
defend a well-reasoned, comprehensive arbitration award that is not
only reasonable, but
correct. The Club – one of the richest in
the PSL – has deep pockets. The individual employee, who has
been forced
to incur significant legal costs, does not. There is no
longer any employment relationship between the parties. Both parties
asked
for costs to follow the result. There is no reason in law or
fairness to deviate from that request.
Order
The
application for review is dismissed with costs.
Steenkamp
J
APPEARANCES
APPLICANT:Joe
Nalane
Instructed
by Bowman Gilfillan.
FIRST
RESPONDENT:G Shakoane SC
Instructed
by Tshiqi Zebediela
.
[1]
Labour Relations Act 66 of 1995
.
[2]
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC); (2007) 28
ILJ
2405
(CC);
[2007] 12 BLLR 1097
(CC).
[3]
SARPA
v SA Rugby (Pty) Ltd
(2008) 29
ILJ
2218 (LAC);
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen
(2012) 33
ILJ
363 (LC).