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[2015] ZALCCT 71
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Hill v CCMA and Others (C789/14) [2015] ZALCCT 71 (9 December 2015)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Not
Reportable
Case Number: C789/14
In the matter
between:
LAUREN
HILL
Applicant
and
CCMA
First
Respondent
Z. MADOTYENI
N.O. Second
Respondent
UNIVERSITY OF
CAPE TOWN Third
Respondent
Date heard:
3 June 2015
Delivered:
09 December 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed review application. The second respondent (the Commissioner)
found that the applicant had not
been dismissed by the third
respondent (UCT).
[2] The
applicant, a researcher-lecturer had, before the termination of her
employment been in the in the employ of UCT for a period
of seven
years. On the 24 March 2013, while she was still in permanent
employment but facing an internal hearing, she entered into
an
agreement with UCT. The Agreement defined ‘termination date’
as meaning “31 March 2014 or, if earlier, the
date of
commencement of Dr Hill of employment in a Funded Position.”
[3] It included
the following provisions:
“
Resignation
4.
Dr Hill hereby resigns her employment from UCT with effect from the
Termination Date subject to the terms of this agreement.
Payment
5.
Dr Hill will continue to be paid her ordinary remuneration and
benefits until the Termination Date.
6.
If the Termination Date is earlier than 31 March 2014 because Dr Hill
has commenced employment in a Funded Position, Dr Hill
shall be paid
in a lump sum the balance of the costs to the University of her
remuneration and benefits between the Termination
Date and 31 March
2014.”
[4] The
following definitions in the agreement are also of relevance:
“
the
New Unit” shall means the proposed Critical Care Nutrition
Research Unit in the Division of Critical Care within the Department,
or such other unit as may be established arising from the Funding
Proposal.
“
Funded
Position” shall mean an externally funded position created as a
result of external funding obtained for Dr Hill.”
“
the
Funding Proposal” shall mean the proposal prepared by Dr Hill
for external funding for the New Unit, as may be amended,
revised or
replaced with a new funding proposal and approved by the Head of
Department.”
[5] The parties
further agreed terms regarding possible further employment in a
funded position thus:
“
9.
In the event that external funding is obtained for Dr Hill to work in
the University, she shall be employed in the Funded Position
with
recognition of past service with UCT and without probation, but
subject to all such conditions as may be specified in the
external
funding arrangement.
10.
To the extent permitted by the external funding, Dr Hill’s
remuneration and benefits in the Funded Position shall be no
less
favourable than at present, the intention of the parties being that
Dr Hill shall be employed on terms and conditions ordinarily
applicable to externally funded positions, but otherwise no less
favourable than those under which she is currently employed.
11.
UCT will in good faith consider any proposal for the establishment of
the New Unit with all reasonable expedition with a view
to completing
the process ahead of 31 March 2014.
12.
Approval of the New Unit will, subject to 11., follow the established
internal procedures within the University and will be
subject to any
constraints placed upon the application of the funding by any donor.”
[6] The final
terms of the Agreement are headed “Full and Final Settlement”
and read as follows:
“
20.
This agreement resolves, and is entered into in full and final
settlement of, all and any claims or allegations between Dr Hill
and
the University relating to or arising from past grievances, conduct,
capacity, performance, compatibility, unfair labour practice
or
victimisation, and whether such claims arise in contract, delict,
statute or otherwise, but it does not preclude Dr Hill from
lodging a
claim for compensation in terms of the Compensation for Occupational
Injuries and Diseases Act in respect of any injury
or incident in
terms of that Act applicable to her.
21.
This document contains the entire agreement between the parties in
respect of the matters dealt with in it. Neither party has
any claim
or right of actions arising from any undertaking, representation or
warranty not included in this document.
22.
No agreement to vary, add to or cancel this agreement shall be of any
force or effect unless reduced to writing and signed by
or on behalf
of the parties to the agreement.”
[7] On the 21
February 2014 a letter of motivation for a fixed term employment
contract for the applicant was sent to the Dean of
the Faculty of
Health Sciences from the Head: Division of Critical Care and the
Head: Department of Surgery. It reads in part as
follows:
“
A
legally binding settlement agreement was reached between Dr Lauren
Hill and UCT, which obliges UCT in clauses 9 and 10, to further
employ Dr Hill in the event that external funding is obtained to
cover the costs of Dr Hill’s remuneration and benefits at
a
level no less favourable than her current position.
At
this point, the Division of Critical Care has secured the necessary
financing in the form of donor funding to support the proposed
COE
package for Dr Hill, which is outlined below. The Division of
Critical Care is strongly motivated to uphold the further employment
of Dr Hill for reasons outlined below.”
[8] The
motivation attached a proposed job description, as well as letters
from donors pledging funds to the UCT’s division
of Critical
Care for their discretionary use. In a lengthy letter dated 26 March
2014 the Dean of the Medical School replied to
the motivation letter
(which reached him on the 11 March 2014), explaining that the
proposal presented a number of difficulties,
these premised on the
following observation:
“
2.1
First, although you have stated that the memorandum of agreement
previously concluded with Dr Hill obliges the University to
appoint
Dr Hill in the event that external funding is obtained, that cannot
be correct. The further employment of Dr Hill can occur
only pursuant
to the creation of the position which is to be externally funded, and
external funding for such a position can be
secured only in terms of
the established procedures within the University for doing so. I need
not set out here all of the reasons
why internal procedures must be
followed to create positions and to secure funding, but I am sure
that you will agree that this
is so. The difficulty presented by your
proposal to engage Dr Hill on a fixed term contract is that as far as
I am aware neither
of these steps has been followed.”
[9] The letter
contains the following statement that: “I am unable at
this stage to approve the appointment of Dr Hill
on a fixed term
contract on the terms proposed by you. If you wish me to consider
this further I ask that you provide me with a
copy of the external
funding proposal submitted by you or Dr Hill together with full
details of the response and any conditions
proposed by the external
funders secured for the proposed position, so that this may be
considered further by the faculty.
It is possible, though by no
means certain, that this might mitigate some of the concerns that I
have raised above and which militate
against the proposal to engage
Dr Hill on a further fixed term contract.”
[10] In a letter
dated 27 March 2014, the Applicant wrote to the Dean as follows:
“
1.
Dr Joubert has forwarded to me a copy of your letter to him dated 26
March 2014 in the above regard. I am writing this as a matter
of
urgency since my Agreement with UCT expires on 31 March 2014.
2.
That Agreement provided, inter alia as follows:
9.In
the event that external funding is obtained for Dr Hill to work in
the University, she shall be employed in the Funded Position
with
recognition of past service with UCT and without probation, but
subject to all such conditions as may be specified in the
external
funding arrangement.
3. The Funded Position is simply an externally funded position
created as a result of external funding obtained by me.
4. Clause 9 clearly creates an obligation to employ me if the funds
are obtained.
5. The funds have been donated to the Department of Critical Care on
an unconditional basis, as can be seen from the attached letters
from
Adcock Ingram, Nutricia and B.Braun Medical.
6. Funds donated on an unconditional basis do not require an internal
faculty approval process. I verified this with the Faculty
Accountant
in a meeting early in 2014, who also indicated at that time that it
is acceptable to receive a donation for a salary,
and that donated
funds do not require faculty approval since the faculty approval
process is for the purpose of cost recovery on
contracts between the
university and external third parties. Cost recovery does not apply
to donor funds. The letters of commitment
say this (see attached),
and are in line with what UCT Donations office indicated to me is
required for incoming donations as opposed
to contracts.
7. The reasons set out in your letter for failing to employ me in the
Funded Position, are not relevant to the Agreement, and,
in any
event, are not valid. I need to reserve all my rights, including the
right to respondent in detail at the appropriate time
and in the
appropriate forum should that prove necessary.
8. The attached letters demonstrate that I have obtained the
necessary funding.
9. Should you fail to comply with the obligation to employ me in
terms of Clause 9, the University will be in material breach of
the
Agreement.
10. In the circumstances, I request you to reconsider your decision,
and let me have your response by no later than 12 pm (noon)
on Monday
31 March 2014, failing which I shall have no option but to assume
that you abide by your decision. Naturally I reserve
the right to
respond accordingly.
11. I sincerely regret the necessity for the urgent time frame, and
for having to write to you in this manner.”
[11] In answer
on the 31 March 2014, the Dean stated in a letter that he could not
agree that the University was either obliged
to or should appoint
applicant for the further fixed period proposed. In a letter in
reply, hand delivered on the same date, the
applicant claimed that
the University had breached clause 9 of the Agreement and stated:
“
6.
I hereby accept the University’s repudiation of the Agreement
and cancel the Agreement.
7.
My indefinite term employment with the University, which was amended
by the Agreement, therefore remains as it was on 24 March
2013, and I
hereby continue to tender my services in terms thereof.”
[12] On the 1
April 2014, the Dean wrote a letter headed “Termination of Your
Employment” stating inter alia that:
“
The
University does not agree that it has breached the agreement of 24
March 2013 or repudiated it. It also does not agree, even
if it had
done so, that you are entitled to cancel it. This was not intended by
the parties, and you have accepted the University’s
performance
of various other obligations under the agreement thus far. In
addition, even if you were entitled to cancel the agreement
the
University does not agree that this would have the consequence, as
you claim, that your employment “remains as it was
on 24 March
2013.”
Evaluation
[13] Mr Kantor
for the applicant put up a myriad of arguments before the arbitrator
and the court to submit that applicant was dismissed.
In ‘heads’
of argument comprising some 83 pages he submitted inter alia that:
13.1
The agreement was void ab initio through material misrepresentation
and a dismissal took place on the 1 April 2014;
13.2
alternatively the agreement was validly cancelled by the applicant
due to the University’s material breach, and
13.3
either the Agreement was divisible from the original contact and the
cancellation of the Agreement left the original agreement
in place,
which was terminated by the University, resulting in a dismissal;
13.4
or, alternatively, the agreement was indivisible from the original
contract and the indivisible contract was terminated by
the
applicant, resulting in a constructive dismissal;
13.5
alternatively, the Agreement turned the employment contract into a
fixed term contract, which expired on 31 March 2014, the
applicant
reasonably expected the University to renew it on the same or similar
terms, and the University’s failure to do
so was a dismissal.
[14] It is trite
that a party to an agreement who is faced with two inconsistent
remedies must make an election between them and
cannot both approbate
and reprobate. A classic statement of this well-established principle
of the law of contract is that of Innes
CJ in Bowditch v Peel and
Magill
1921 AD 561
at 572:
'A
person who has been induced to contract by the material and
fraudulent misrepresentation of the other party may either stand
by
the contract or claim rescission. . . . It follows that he must make
his election between those two inconsistent remedies within
a
reasonable time after knowledge of the deception and the choice of
one necessarily involves the abandonment of the other. He
cannot both
approbate and reprobate.'
[15] Mr Kantor
has relied on inconsistent contractual remedies in order to found his
argument that the applicant was dismissed.
He presented a similar
case at the arbitration. He has not at any stage sought rescission of
the Agreement. This prong of
his approach is vague and
embarrassing. In addition his submissions based on cancellation of
the contract do not assist the applicant.
[16] In essence,
Mr Kantor submits the cancellation of the Agreement was the trigger
for a dismissal to arise in law. The arbitrator
found that the
applicant had resigned voluntarily. As he records in his Award:
“
70.
In fact her version had always been that she voluntarily concluded an
agreement with the respondent that settled all disputes
between them
by resigning in return for extended notice period, consideration of
funding proposal and a possibility of a future
fixed term contract of
employment.”
[17] The
Agreement is unambiguous in stating that the “applicant hereby
resigns”. The Agreement records inter alia under
the heading
“Grievances”:
“
13.
In May 2012 Prof Visser issued a report on stage 3 of a grievance
brought against Dr Hill. In June 2012 a letter was sent to
various
persons by the Dean communicating certain findings in the report.
14.
Dr Hill disputes the findings of Prof. Visser in the grievance
reports and contends that she was prejudiced both by the findings
and
by the manner in which those findings were communicated. Her grounds
for these contentions are set out in a letter from her
legal
representative dated 7 February 2013.
15.
The parties have agreed that the conclusion of this agreement makes
it unnecessary to resolve the competing contentions on these
matters.”
[18] The
Agreement also contained a clause whereby UCT made a contribution to
applicant’s legal costs in respect of the previous
disputes.
This was an agreement of compromise in terms of which the applicant
resigned her permanent employment effective from
31 March 2013.
Pending the termination date, and from 1 April 2013, the Agreement
provided that: “Dr Hill shall vacate her
post in the Department
of Human Biology and take up employment in the department, where she
shall occupy a position, perform functions
and report to a person to
be determined by the Head of Department in consultation with the
Dean.”
[19] On the
facts before the Commissioner, the applicant only sought to cancel
the agreement on the 31 March 2014 i.e. once her
resignation, in
terms of the agreement, had already become effective. The various
arguments proffered on her behalf that a ‘dismissal’
arose consequential on the purported cancellation must therefore
fail.
[20] The final
in the series of alternative reasons supporting a purported dismissal
listed by Mr Kantor was that the Agreement
had converted her
employment into a fixed term contract which applicant had a
reasonable expectation would be renewed. Here he
returns to “blowing
hot and cold” and dispensing with his claim that the contract
was breached. In any event, the content
of the Agreement bears of no
such interpretation setting out as it does the conditions on which
any future employment with UCT
will be premised. These contemplate a
funded position which she did not have during the currency of the
Agreement, neither the
same or similar conditions as that which
pertained before the 31 March 2014.
[21] In
view of the above, and whether applying the review test in
jurisdictional matters
[1]
or the ‘reasonableness’ test, the Award is not
susceptible to review. This brings me to the issue of costs. The
University
argued that the applicant had sought costs both at
arbitration and on review and that her insistence on reopening
matters that
had been finalised by prior settlement was unreasonable.
I do not find any reason that costs should not follow the result. In
the
premises, I make the following order:
Order
1. The
application is dismissed with costs.
_____________________
H. Rabkin-Naicker
Judge of the Labour Court of South Africa
Appearances:
Applicant:
Peter Kantor instructed by Dorrington Jessop Attorneys
Third
Respondent: Bowman Giffillan Attorneys
[1]
See SA Rugby Players association & Ithers v
SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 LAC