About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2016
>>
[2016] ZALCD 19
|
|
Bhoodram v Legal Aid South Africa - Newcastle (D1001/12) [2016] ZALCD 19 (7 June 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Not
reportable
Case
Number: D1001/12
In
the matter between:
NAVEEN
BHOODRAM
Applicant
and
LEGAL
AID SOUTH AFRICA-
NEWCASTLE
Respondent
Heard: 19 March, 15 –
16 May 2015 and 22 and 24 June 2015.
Delivered: 7 June 2016
Summary: Contract.
Applicant claiming misrepresentation leading to consent to the
amendment of the original employment contract.
Claim dismissed.
JUDGMENT
GUSH
J
Introduction
1.
The
applicant in this matter, an attorney employed by the respondent,
applies for the amendment affected to his contract of employment,
to
which he had consented in January 2009, to be set aside and the terms
of the contract that existed prior to the amendment to
be enforced.
2.
The
applicant had applied for condonation for the late filing of his
claim and to amend his statement of claim. Condonation had
been
granted.
3.
On
19 March 2015 when the matter came to trial the court made an order,
by consent, regarding the issue in dispute. The parties
agreed and
the court so ordered that the only issue to be determined was whether
the applicant was unduly influenced by the respondent
to sign the
amendment to his contract of employment.
4.
The
applicant had entered into a contract of employment with the
Respondent on 1 December 2008 as a Professional Assistant. Prior
to
this, the Applicant had served his articles of clerkship for two
years with the Respondent. The contract was in writing and
inter alia
specified the applicant’s salary scale.
5.
During
January 2009, the Applicant was advised by the respondent that he had
been appointed at the incorrect salary scale. The respondent
advised
the applicant that the salary level at which he had been appointed
should have been R136 176 per annum as opposed to R140 247.71.The
Applicant was informed that the salary scale at which was incorrect
and his consent was sought to amend the contract accordingly.
6.
The
applicant consented to amend the contract of employment in order to
rectify the mistake. It was clear from the contract and
the amendment
that a consequence of the amendment was to reduce the salary scale at
which the applicant was to be remunerated.
7.
The
applicant averred that he had consented to the amendment due to a
misrepresentation made to him by the respondent’s Ms
Fathima
Buckus.
8.
The
Applicant alleged that had he been told the truth about how the SOD
system works he would not have signed and consented to the
amended
contract, thus alleging undue influence.
9.
At
the commencement of the matter the applicant indicated that he sought
to prove on a balance of probabilities that he had only
signed the
amendment to the contract as a result of the misrepresentation by Ms
Buckus.
10.
Both
parties adduced evidence regarding the background to the contracts of
employment salary scales and the circumstances surrounding
the need
to amend the contracts.
11.
In
essence the issue is whether the applicant was able to establish his
averment that Ms Buckus had misrepresented the effect of
the
amendments to him and that on the strength of this misrepresentation
he had been induced into signing the amendment to his
contract.
12.
A
Mr. Biyela gave evidence for the applicant as did the applicant
himself. Both had signed the amendments to the contracts of
employment
after discussions with Ms Buckus. The applicant was not
present during the discussion Biyela had had with Ms Buckus nor was
Biyela
present during the applicants discussion with Ms Buckus.
13.
During
his evidence the applicant conceded that Ms Buckus had advised him
that his contract contained a mistake regarding the salary
scale at
which had been appointed and that applicant wished to remedy that
mistake in the contract. The applicant suggested that
he believed
that an occupational specific dispensation would apply to him and
signed the amendment to the contract.
14.
That
is clear from the amended contract that no reference was made to or
regarding any occupational specific dispensation and that
the
amendment simply dealt with the salary scale. It transpired that the
occupational specific dispensation did not apply to the
applicant and
when this became apparent some years later the applicant became
aggrieved and launched this application
15.
Ms
Buckus, the employee of the respondent the applicant alleged had
induced him into signing the amendment gave evidence on behalf
of the
respondent. Ms Buckus gave her evidence clearly and unequivocally and
I am satisfied that she made no misrepresentation
that would have
induced the applicant into signing the amended contract and
specifically that she made no representation regarding
the
occupational specific dispensation at all.
16.
It
was clear from the applicant’s evidence that the amendment to
the contract contained no representations whatsoever or any
reference
to what the applicant averred he had been represented he would have
been entitled to.
17.
In
contrast to Ms Buckus’s evidence the applicant was unable to
explain why he had not raised with Ms Buckus prior to signing
the
amendment that representation he supposedly relied upon, specifically
as no reference to it was included in the contract or
the amendment
sought by the respondent.
18.
The
Respondent’s alleged misrepresentation that according to the
applicant induced him into signing the amendment to his employment
contract, related to the occupational specific dispensation, a matter
that was conspicuous by its absence.
19.
The
applicant bore the onus of establishing that he had signed the
amendments under duress and or undue influence and as a result
of a
misrepresentation.
20.
The
Respondent cogently argued that there was no misrepresentation made;
the mistake was detected within a month of the signing
of the
contract of employment; the issue was discussed with the applicant
and that he had understood andconsented to the amendment
to the
contract.
21.
I
am not satisfied that the applicant has established on a balance of
probabilities or at all that he was induced into signing the
amendment to his contract by the respondents misrepresentations an
undue influence.
22.
Although
it did not form part of the dispute in question it became clear that
the overpayment made to the applicant had continued
for some time
before being reclaimed. This and the fact that the applicant was
still employed by the respondent I have taken into
account in
considering the question of costs.
23.
For
the reasons set out above I make the following order:
a.
the
applicants application is dismissed;
b.
there
is no order as to costs
___________
Gush J
Judge of the Labour Court
of South Africa.
APPEARANCES:
For
the Applicant:
M Sewpal
Instructed by K M C
Attorneys
For
the Respondent:
V T Seboko
Instructed by Legal Aid
South Africa