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[2015] ZALCPE 3
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Metjielies v Stratostaff (Pty) Ltd t/a Adecco (P294/12) [2015] ZALCPE 3 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
No: P 294/12
DATE:
27 JANUARY 2015
Not
Reportable
In
the matter between:
WILLEM
RICHARD METJIELIES
.......................................
Applicant
And
STRATOSTAFF
(PTY) LTD t/a ADECCO
..........................
Respondent
Heard:
9 September 2013
Delivered:
27 January 2015
Summary:
The respondent’s failure to explain to the applicant the
contests of an agreement terminating the employment relationship
by
mutual consent rendered the agreement null and void.
JUDGMENT
LALLIE
J
Introduction
[1] In this
application the applicant seeks an order directing that the
settlement agreement concluded by the parties be set aside
in terms
of section 77 (3) read with section 77(A)(e) of the Basic Conditions
of Employment Act 75 of 1997 (“the BCEA”)
alternatively,
declaring the settlement agreement entered into between the parties
null and void.
[2] The facts of
this matter are briefly that the applicant was employed as a driver
by the respondent which is a labour broker.
He performed his duties
at UTI, a client of the respondent. In February 2012, the respondent
suspected the existence of a theft
syndicate which stole parts which
belonged to VW, a car manufacture. As part of its investigation it
had a number of its employees
including the applicant subjected to a
polygraph test. The applicant was amongst employees who failed the
polygraph test. On 13
March 2012, UTI terminated its agreement with
the respondent in terms of which the applicant performed his duties.
The following
day the respondent informed the applicant of the
decision taken by UTI. An agreement was subsequently reached between
the applicant
and the respondent in terms of which their employment
relationship was terminated by mutual consent and the applicant paid
all
statutory money due to him. The agreement was signed by both
parties. When the applicant referred an unfair dismissal dispute to
the Commission for Conciliation Mediation and Arbitration (“the
CCMA”) the respondent raised a
point in limine
that the
CCMA lacked the necessary jurisdiction as the employment relationship
between the parties had been terminated by mutual
agreement. The
applicant submitted that at the time of entering into the agreement
he was of the view that he was acknowledging
receipt of documents
from UTI and not aware of the fact that he was entering into the
agreement. He therefore approached this Court
to have the agreement
declared null and void. His application is opposed by the respondent.
When the application was set down for
hearing there was a dispute of
fact as a result of which the matter was referred to oral evidence.
[3] The applicant’s
version was that on 12 February 2012,(the applicant conceded that the
incident took place in March) he
was informed by Mr Kukkuk
(“Kukkuk”), a manager at UTI, that Ms Celest Dorfling
(“Dorfling”), an employee
of the respondent wished to see
him. He then joined Kukkuk and Dorfling in the office where the
latter told him that UTI did not
need his services any more because
he had failed the polygraph test. His response was that he did not
want to fight and Dorfling
told him not to worry and promised him
that the respondent would find him another position elsewhere. He
added that he was disappointed
and cried because he had done nothing
wrong. Dorfling told him to sign a document and further gave him his
letter of the termination
of his contract of employment. He noticed
later that the letter had been signed on behalf of the respondent by
his supervisor,
Mr Behr who was not even at the meeting. He
challenged the fairness of his dismissal at the CCMA where he was
shown for the first
time the agreement of the termination of his
employment by mutual consent. He conceded that the signature appended
to the agreement
on behalf of the employee was his. He however,
stated that he was misled into signing the agreement by Dorfling who
put a file
on the document and told him to sign it. He signed the
agreement under the impression that it was a letter confirming UTI’s
decision that it no longer required his services. He submitted that
had the agreement been read out to him he would not have signed
it as
it deprived him of his right to approach the CCMA and the Labour
Court. He denied that Dorfling raised the issue of his investigation
or anything related to his dismissal with him.
[4] Dorfling
testified on behalf of the respondent. The difference between her
version and the applicant’s is that she never
misled the
applicant into signing the agreement. The documents she had were
clearly marked and as she was explaining them to the
applicant, the
applicant interrupted and told her that it did not help to fight. She
denied covering the agreement with a file.
She further denied that
the applicant was emotional.
[5]
It was argued on behalf of the applicant that the agreement was void
ab initio. The applicant sought to rely on the following
dictum in
Eastwood
v Shepstone
[1]
which was relied on in
Sasfin
(Pty) Ltd v Beukes
:
[2]
‘
Now
this court has the power to treat as void and to refuse in any way to
recognise contracts and transactions which are against
public policy
or contrary to good morals. It is a power not to be hastily or rashly
exercised, but when once it is clear that any
arrangement is against
public policy, the Court would be wanting in its duty if it hesitated
to declare such an arrangement void.
What we have to look to is the
tendency of the proposed transaction, not it’s actually proved
results’.
The Applicant
further sought to rely on Christie, the Law of Contract in South
Africa, fifth edition at page 345 where the author
confirmed that a
contract or its term may be declared contrary to public policy if it
is clearly inimical to the interest of the
community, contrary to law
or morality, or is contrary to social or economic experience, or is
plainly improper and unconscionable,
or unduly harsh and oppressive.
[6]
The respondent sought to rely on the
caveat
subscriptor
principle which was expressed as follows in
George
v Fairmead (Pty) Ltd
[3]
:
‘
When
a man is asked to put his signature to a document he cannot fail to
realise that he is called upon to signify, by doing so,
his assent to
whatever words appear above his signature. In cases of the type of
which the three I have mentioned are examples,
the party who seeks
relief must convince the Court that he was misled as to the purport
of the words to which he was thus signifying
his assent…’.
The
respondent also relied on
Afrox
Healthcare Bpk v Strydom
[4]
in arguing that the applicant’s failure to read the agreement
before signing it did not mean that he was not bound by it.
The
respondent further argued that the court to exercise the power to
declare contracts contrary to public policy sparingly.
[7] The applicant
has the onus to prove that he signed the agreement as a result of
duress, undue influence and gross misrepresentation
by Dorfling. In
the founding and replying affidavit the applicant submitted that he
was under the impression that he was acknowledging
receipt of the
letter of the termination of his services when he signed the
agreement. It is only when he was giving oral evidence
that he stated
that the document he signed had been covered with a file when
Dorfling told him to sign it. When the version presented
in court is
consider with all the other evidence including the answering
affidavit, it becomes clear that the agreement was not
covered with a
file when the applicant signed it. What is however, consistent in the
applicant’s version is that the respondent
did not make him
aware of the contents of the agreement before he signed it. The
circumstances under which the applicant said he
did not want to
fight, are in dispute. The applicant testified that he made the
utterance after he was told that UTI no longer
required his services
and after Dorfling had promised to find him work somewhere else. His
version is consistent with evidence
that is common cause that the
respondent found alternative work for its employees who were rejected
by some of its clients. The
respondent had found work for the
applicant at UTI after he was rejected by one of its clients and
based on the promise made by
Dorfling it did find him alternative
work after he left UTI. The applicant’s version is therefore
probable. He insisted that
he was not afforded an opportunity to read
the agreement before signing it.
[8] I have
considered the respondent’s version that the applicant
interrupted Dorfling when she attempted to explain the agreement
to
the applicant. This is a concession that Dorfling did not explain the
contents of the agreement to the applicant. The interruption
did not
relieve the respondent of its obligation to explain the contents of
the agreement to the applicant. The duty on the respondent
was more
onerous because the agreement diminished the applicant’s right
to challenge the fairness of the termination of his
contract of
employment. The respondent was the sole beneficiary and, all the
applicant got from the agreement was the reduction
of his rights. The
respondent’s own version is improbable when viewed against its
submission that the applicant benefited
from the agreement in that he
was spared investigation for misconduct and leaving the respondent
under a cloud of dismissal because,
consistent with the applicant’s
version, the respondent found alternative work for the applicant from
one of its clients.
As Dorfling did not explain the contents of the
agreement to the applicant who did not read it, it is not probable
that the respondent
made the proposal to the applicant that he will
not be subjected to discipline should he not sign the agreement. The
applicant
could only agree to the promise of being spared
investigation after gaining knowledge of the contents of the
agreement. I have
noted the respondents’ attempt to rely on the
principles of the law of contract which are undeniably relevant in
Labour Law.
However, the employment relationship is different from
the relationship between other contracting parties. The authority of
this
Court to intervene in agreements of contracting parties should
be used sparingly, however, the circumstances of this matter justify
intervention as the respondent failed to explain to the applicant the
contests of the agreement as well as its consequences. The
respondent, represented by Dorfling, was a very powerful party with
knowledge of the consequences of entering into the contract.
The
applicant lacked such knowledge and entered into the agreement to his
detriment.
[9]
It was argued on behalf of the respondent that the applicant waived
his right to have the agreement explained to him. A right
that has
been waived gets extinguished. In order to establish waiver, the
respondent must prove that the applicant took a decision
to abandon
his right either expressly or by conduct inconsistent with an
intention to enforce the right relied on. Waiver is however,
not
implied easily. The decision must be taken with full knowledge of the
right the applicant decided to abandon and must be conveyed
to the
other party. See
Feinstein
v Niggle and Another
[5]
.
Dorfling’s evidence that her failure to explain the contents of
the agreement to the applicant before he signed it resulted
from his
interruption. The applicant’s interruption does not constitute
conduct consistent with the intention to abandon
his right. The
respondent did not discharge the onus that when the applicant
interrupted Dorfling, he did so with full knowledge
of his right to
have the agreement explained to him particularly the clause which
obliterated his right to challenge the fairness
to the termination of
his contract of employment. As the applicant did not waiver his right
to have the agreement explained to
him the respondent failed in its
duty of placing him in a position to be party to the agreement with
full knowledge of its contents.
[10] In the
premises, the following order is made:
10.1
The agreement concluded by the applicant and the respondent on 14
March 2012 terminating the applicant’s employment by
mutual
consent is declared null and void.
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant: Mrs Van Staden of Justice Centre
For
the Respondent: Ms Share of Kaplan Blumberg
[1]
1902
TS 294
at 302.
[2]
1989
(1) SA 1
(A) pp 8J-9A.
[3]
1958
(2) SA 465
(A) at p472.
[4]
[2002]
4 All SA 125 (SCA)
[5]
1981 (2) SA 684
(AD)