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2015
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[2015] ZALCJHB 214
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Maya v DB Thermal (a division of DBT Technologies) (J738/13) [2015] ZALCJHB 214 (22 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
C
ase no: J 738/13
In the matter between:
JOHN
MKHULU MAYA
APPLICANT
and
D B THERMAL (A DIVISION OF DBT TECHNOLOGIES)
RESPONDENT
Heard: 29
January 2015
Delivered: 22 July 2015
Summary: application to make settlement
agreement an order of court
JUDGMENT
WHITCHER J
Introduction
[1]
This is an application to make a settlement
agreement concluded between the Applicant and Respondent under the
auspices of the MEIBC
under case number
MEGA
36921
an order of court in terms of
section 158 (1)(c) of the LRA.
[2]
It is common cause that the terms on which
the dispute (MEGA 36921) were settled are housed in two signed
agreements, namely the
DBT Settlement Agreement and the MEIBC
Agreement. It is also common cause that the dispute arose from the
dismissal of the Applicant
and one Mr Siwedi and the settlement
agreements were in respect of both of them.
[3]
There is a dispute concerning what the
parties intended by the use of the term “reinstatement”
in the MEIBC document.
[4]
In essence the Applicant’s case is
that given the reference to the term ‘reinstatement’ in
the MEIBC document,
one of the terms of the settlement agreement is
that the Respondent was required to reinstate him on the same terms
and conditions
of employment as existed prior to his dismissal.
[5]
It is the Respondent’s case that the
DBT and MEIBC documents must be read together in order to give effect
to the intention
of the parties.
[6]
The Respondent contends that the salient
terms of the settlement agreement as contained in the DBT document
were that the Respondent
would pay the Applicant and Mr Siwedi two
months wages each and the Applicant and Mr Siwedi would be
re-employed on a contractual
basis for not less than 12 months by AMT
Africa (Pty) Ltd t/a AMT Placement.
[7]
The Respondent further contends that the
MEIBC agreement was concluded subsequent to the DBT agreement in
order to make provision
in the DBT agreement for a term requested by
the Applicant and Mr Siwedi that their years of service with the
Respondent be recognized
and included in the settlement agreement. It
is for this reason that paragraph 1 of the MEIBC document which
refers to reinstatement
were included.
[8]
For the reasons set out below, I accept
that on a purposive interpretation of the two agreements and the
surrounding circumstances
that the facts illustrate that the parties
understood the purpose for which the two agreements were concluded
and that the purpose
of the MEIBC agreement was limited to the
recognition of years of service.
[9]
The veracity of this fact is confirmed by
Mr Siwedi who has confirmed in an affidavit that the parties did not
agree or intend that
the Respondent would reinstate him and the
Applicant but that the intention was to be employed by AMT Placements
with recognition
of their years of service.
[10]
The Applicant accepted the payment of the
two months’ salary in terms of the DBT document.
[11]
On 5 November 2012, four days after the
conclusion of the settlement agreement, the Applicant signed an AMT
Placement Engagement
form and Limited Duration Contract of Employment
with AMT Placements.
[12]
AMT Placements issued a letter confirming
that the Applicant’s years of service with the Respondent would
be recognised for
reference purposes and package calculations in the
event of restructuring.
Conclusion
[13] In the circumstances, I find that the Respondent has complied
with the settlement agreement which is the subject of the
application.
Order
[14]
The application is dismissed with no order as to costs.
_______________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: J Mthimunye instructed by Mncedisi Ndlovu &
Sedumedi Attorneys
FOR THE RESPONDENT: P Fouche: Fasken Martineau
incorporated in SA as Bell Dewar Inc