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[2016] ZALCD 23
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Mtolo v Merrivale Spar (D790/2012, D150/12) [2016] ZALCD 23 (16 November 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
CASE
NO:
D
790/2012
D150-12
In
the matter between:
BHEKIZITHA
JAMES
MTOLO
APPLICANT
And
MERRIVALE
SPAR
RESPONDENT
Heard
:
20 April 2016
Delivered
:
16 November 2016
Summary
:
Section
158 (1) (c) application referred to oral evidence – whether an
agreement was reached by parties for employee to work
at alternate
place - whether employee agreed to delay resumption of duty –
whether employer complied with the settlement
agreement –
application granted.
JUDGMENT
CELE
J
Introduction
[1]
This is an application in terms of Section 158(1) (c) of the Labour
Relations Act (the Act),
[1]
to make a Commission for Conciliation, Mediation and Arbitration,
(the CCMA), settlement agreement an order of court. The Applicant
initiated two applications one under case number D150/2012 and
subsequently another under case number D790/2012. There arose a
dispute of facts and at the request of the parties the matter was
then referred to oral evidence on the disputed issues. The
application
is opposed by the Respondent
on
the basis that it complied with the settlement agreement
.
Background
Facts
[2]
The Applicant was in the employment of the respondent, a shop owned
by Mr Lee Nelson Parau (hereafter referred to as Lee) since
August
2006. Lee and his brother, Mr Ricardo Parau (hereafter referred to as
Ric), as he was known, were joint owners of both the
Respondent, that
is, Merrivale Spar and Greendale Spar, both of which are located in
Howick. The Applicant worked as a Receiving
staff in the receiving
area of Merrivale Spar and he resided at the premises of the same
shop.
He
earned R 4 700.00 per month. In terms of the Applicant’s
written contract of employment:
"
The
employee will work at 13 Zeederberg Road, Merrivale or any other
places as the employer may from time to time direct".
return
on 8 December 2011. He was dismissed on that day and he referred an
unfair dismissal dispute for conciliation to the CCMA.
The CCMA
scheduled a hearing as a con/arb on notice to both parties for 19
January 2012. The Applicant attended the hearing in
company of his
attorney, Mr M Mathonsi. The Respondent was represented by Ms D
Padayachee from an employers’ organisation
known as Neesa. The
deliberations held culminated in the parties agreeing to settle the
dismissal dispute. In the execution of
their agreement they signed a
document which is the standard agreement form of the CCMA with a
number of clauses, giving various
options to choose from. All options
from clause 1 to 5 were cancelled off, leaving clause 6. Clause 1 had
the option for reinstatement
and Clause 2 was for re-employment.
Corresponding to clause 6 there is a hand written entry made in the
following terms:
“
Applicant
to return to work on Monday 23 January 2012 at 07h00 for duty.”
[4]
What should be clause 7 has incorrectly been written as clause 4,
followed by clauses 5 and 6, which is a clear error. This
second
clause 4 has the following typed entry:
“
No
variation of this agreement shall be legally binding unless reduced
to writing and signed by the parties.”
[5]
The Applicant duly complied by presenting himself at the Respondent
shop on 23 January 2012 as expected and he met Lee. The
contents of
the discussion which ensued between the Applicant and Lee are
embroiled in the bone of contention. It remains common
cause that on
the same day the Applicant was paid some money, described in the
answering affidavit as the full back pay. He was
taken to Greendale
Spar where on arrival he met Ric. A discussion took place between him
and Ric. At that shop there was also Mr
Rikesh Hansraj, referred to
as Rikesh. He worked as a Receiving Manager. Yet again there is no
agreement between the parties on
what was said by Ric to the
Applicant but the Applicant left those premises without working on
that day. He has since never returned
to either shop from that day.
Instead he initiated the present application. At the hearing of this
application the parties were
in dispute as to what caused the
Applicant not to resume work and the matter was referred to oral
evidence.
The
purported agreement
[6]
As already alluded to, the parties agrees that the Applicant was to
return to work on Monday 23 January 2012 at 07h00. There
is no
dispute between the parties that the Applicant presented himself at
the Respondent as agreed to. So he tendered his services.
The
Applicant had undertaken to return to work, meaning to go back to
work. This can only mean a return to the
status
quo ante
and a revival of the terms of the contract of employment. What is
conspicuous though by its absence is a term dealing with whether
that
return was or was not with retrospective effect. In the absence of
any specific details about it, the intention of the parties
on
whether they contemplated a retrospective revival of the terms of the
agreement of employment may be discerned from their subsequent
unison
behaviour, if any. The Applicant had last worked on 8 December 2011
and resumed work on 23 January 2012. He had been away
from work for a
period that was just more than six weeks. The Respondent paid him
some money on 23 January 2012. The Applicant
accepted that payment
without questions.
[7]
The Applicant did not and could not resume work at Merrivale Spar but
he was taken to Greendale Spar of Ric. It is also common
cause that
his failure to return to the workplace he usually worked at was
because of what Lee had said to him. At this stage of
the chronology
of events therefore, the evidentiary onus has shifted from the
Applicant to the Respondent, based on common cause
facts.
Evidence
Respondent’s
version
[8]
Three witnesses of the Respondent testified and they are Lee, Ric and
Rikesh. Lee said that on 23 January 2011 he told the Applicant
that
he had to juggle his staff around by moving one Teller to the
receiving area left by the Applicant on 8 December 2011. Because
January 2012 was still a pretty busy period he did not want to change
the working plan and could therefore not be able to accommodate
the
Applicant at Merrivale Spar. As a result, he had then arranged with
his brother Ric who promised that the Applicant could come
over as
Rikesh was to go on leave. He explained this arrangement to the
Applicant and the Applicant agreed with the change. It
was common
cause that from time to time, employees from one Spar would work at
the other Spar, if they were needed to fill in or
if there was any
staff shortage at the other Spar. He then telephoned Ric to confirm
the arrangement. Upon Ric agreeing with the
plan, he then sent the
Applicant over to work at Greendale Spar just for a little while as
he would sort out things at his shop.
According to Lee the monetary
payment made to the Applicant on that day was a leave payment. He
only became aware of what transpired
at the Greendale Spar when he
received a call from Ric on 30 January 2012, enquiring as to why the
Applicant had not turned up
for work. He said that on and after 30
January 2012, he attempted to contact the Applicant to return to work
but he simply got
into voice mail. He said that the box number on the
contract of employment of the Applicant was old and no longer
operative.
[9]
Ric testified that he received a call from Lee on the morning of
Monday, 23 January 2012, confirming that the Applicant was
on his way
to Greendale Spar. He met with the Applicant and Rikesh and it was
agreed that Rikesh would take his leave on 30 January
2012 and that
the Applicant would come to work at Greendale Spar on 30 January 2012
to replace him. The Applicant agreed to this
suggestion. On 30
January 2012, Rikesh went on leave but the Applicant did not turn up
for work. He telephoned Lee enquiring as
to the whereabouts of the
Applicant. The failure of the Applicant to attend work on 30 January
2012 caused a great deal of problems
in that he did not have a
receiving manager for the week.
[10]
Rikesh testified that he applied for a leave for 3 January 2012 to 18
January 2012, but Ric declined to grant him leave at
that time. He
then applied for leave from 23 January 2012 to 29 January 2012 and
Ric tentatively agreed to it but he asked Rikesh
to come in on
Monday, 23 January 2012, because there was no certainty that the
Applicant would turn up for work on that day. He
was present at the
meeting between Ric and the Applicant. He said that he indicated that
as he had started to work for the week,
he preferred to take his
leave from 30 January 2012. It was then agreed by all three that the
Applicant would come back to work
on 30 January 2012 to fill in for
him.
[11]
During the trial, Rikesh produced the application for leave form he
said he had completed. It shows the deletion of leave applied
for,
from 3 January 2012 to 18 January 2012 and from 23 January 2012 to 29
January 2012. It depicts the leave taken to be from
30 January 2012
to 6 February 2012. It purports to have been signed on 26 August
2011, in respect of both the leave from 26 October
2011 to 30 October
2011 and the leave from 3 January 2012 to 18 January 2012. The same
form suggests that it was used for the replacement
periods of leave
for those cancelled periods.
Applicant’s
version
[12]
In his evidence, the Applicant said that he met with Lee at the
commencement of work on 23 January 2012, whereupon he was not
allowed
to enter into the shop. He was stopped by Lee and instructed to jump
into a van that was heading for Greendale Spar owned
by his brother,
Ric. He said that he did not know why he was told that as he had
never worked there. He stated that he simply jumped
into the car as
requested even as he was shocked as to what was happening. The
Applicant denied that he was told that there was
no vacancy for him
at Merrivale Spar, stating that such information was never
communicated to him. He confirmed that he was aware
that Lee had
called Ric to inform him of the Applicant’s arrival at
Greendale Spar but he said that Ric had said to him that
he did not
know why Lee had telephoned him because he did not have a position
for him.
[13]
The Applicant testified that he had given Ric his cellular telephone
number so that Ric could call him if there was a vacancy.
He then
stated that his cellular telephone number changed after four days
from 23 January 2012 and that the telephone was in his
wife's
possession. He said that after being told on 23 January 2012 that
there was no vacancy at either Spar shop, he did not return
to either
shop. He said that he did not attempt to contact either shop. He
realized that he was being ill-treated and he immediately
approached
his attorneys who represented him at the CCMA and informed them of
the situation.
Evaluation
[14]
As alluded to earlier, it remained common cause between the parties
that the Applicant tendered his services on 23 January
2012, in terms
of his undertaking to return to work. When it was agreed that the
Applicant would return to work, the Applicant
was undertaking to
tender his services and the Respondent was making an undertaking that
it would receive him back. While he was
paid back what the Respondent
referred to as the back pay, he was not taken back on that day to
execute his duties, either at Merrivale
or Greendale because of the
exigencies of the Respondent. It has to be determined whether
those exigencies are exculpatory
or not. The real dispute between the
parties is about the explanation proffered by the Respondent on why
it could not take the
Applicant back on that day. On common cause
facts therefore, the Applicant demonstrated that the Respondent
failed to allow him
to return to his work on 23 January 2012.
[15]
The explanation of the Respondent why it could not take the Applicant
back to his job at Merrivale was that, at the time of
the dismissal
of the Applicant on 8 December 2011, it was extremely busy over the
Christmas period. Lee reshuffled his business
such that one of the
cashiers was moved to the receiving Department, where the Applicant
had worked. This explanation does not
make any commercial sense. The
return of the Applicant would have had the effect of increasing the
Respondent’s manpower.
The Applicant would go back to the
receiving department and the Respondent would have a free cashier to
utilise as it wished. It
has to be remembered the Applicant had five
years of experience with the Respondent. He last worked about six
weeks ago when he
returned and would therefore not need any training.
There was never any evidence that he was replaced by any new recruit
whose
fate had to be taken care of. In other words, the vacancy
created by the dismissal of the Applicant was still in existence on
23
January 2012. The Respondent has therefore utterly failed to give
a plausible explanation why it did not take the Applicant back
as it
undertook to. The circumstances under which an employee would be
transferred to go and work at Greendale did not exist. There
is one
probable inference left to draw from the Respondent’s
behaviour, namely that it did not really want the Applicant
back. Lee
alluded to this when he said that he was sort of forced by Ms
Padayachee to stream along with the settlement agreement.
[16]
There is yet another pointer to the probability that the Respondent
did not want the Applicant back. Rikesh was in truth not
waiting to
see if the Applicant turned up for work on 23 January 2012. Early in
the morning of the day, Lee confirmed that the
Applicant had arrived
and would be brought to Greendale Spar. Rikesh should have started
his leave on 23 January 2012 as the Respondent
had no reason to doubt
that the Applicant would not peach up for work. The Applicant is the
one who had taken a number of steps
to get his job back. From this
fact alone, the Respondent had no reason to think that he would not
return to work.
[17]
Finally, a return to work is in sharp contrast to being sent back
home on 23 January 2012, whatever the circumstances. Clearly
therefore, if the Applicant agreed to it, this is a development that
the parties were expected to reduce to writing, so as to obviate
any
subsequent dispute of facts. If the Applicant agreed to it, he would
have been more than willing to append his signature to
that variation
of the agreement. To suggest, as Lee did, that the Applicant took the
back pay and decided never to come back is
an oversight to the
reality that he had been without an income during the festive season
when the Respondent was very busy.
[18]
I conclude that the version of the Respondent was very well
orchestrated to frustrate the course taken by the Applicant, to
get
his job back. Probabilities weight heavily against the version of the
Respondent as the preponderance thereof favours the acceptance
of the
version of the Applicant. It cannot therefore be reasonably said that
an agreement was reached between Applicant and Respondent
for him to
work temporarily at Greendale Spar and then return to the respondent.
He simply accepted an instruction given to him
by Lee, who was in
apposition to issue such an instruction. That the Applicant the
applicant agreed to commence employment at Greendale
Spar on 30
January 2012 makes no sense at all. The Respondent failed to comply
with the settlement agreement. I have discretion
to exercise and in
this respect I am guided by a number of cases of this Court and of
the Labour Appeal Court. One such case is
Banking
Insurance Finance & Assurance Workers Union v Zurich Insurance Co
Ltd
[2]
where the following of relevance was said:
“
An
order in terms of s 158(1)(c) is not, however, there for the taking
and the court confirmed that it retains a discretion to make
a
settlement agreement an order of court even if it meets the criteria
provided for in s 158(1A). The purpose of making a settlement
agreement an order of court is to enforce compliance with the
agreement. The court will refuse to make a settlement agreement that
is ambiguous or equivocal an order of court. At the very least
the agreement has to meet the criteria set out in s 158(1)(c)
read
with s 158(1A); it has to be sufficiently clear to enable the
defaulting party to know exactly what it is required to do and
there
has to be non-compliance by the defaulting party. Even if all
those criteria are met, the court will still take into
account
relevant facts and circumstances as are necessary to satisfy the
demands of law and fairness.”
[19]
The Applicant is entitled to the order prayed for. While two prayers
were sought in the two notices of motion filed in the
two cases
amalgamated here, the pre-trial minute refers to only one relief
sought. I will allow myself to be guided by the pre-trial
minute,
even though on evidence, the Applicant is entitled to both reliefs
sought in each notice of motion. He is also entitled
to the costs of
this application but not at a punitive scale, as prayed for, due to
the fact that he wants his job back. I proceed
to issue the following
order:
19.1
The settlement agreement dated 19 January 2012, under CCMA case
number DN3498-11, is made an order of court.
19.2
The Respondent is ordered to pay the costs hereof.
_______
Cele
J
Judge
of the Labour Court of South Africa.
APPEARANCES:
FOR
THE APPLICANT:
MR
K MUNSAMY
INSTRUCTED BY HARKOO,
BRIJLAL & REDDY.
FOR
THE RESPONDENT: MR FORSTER
INSTRUCTED
BY FORSTER ATTORNEYS.
[1]
Act
Number 66 of 1995 hereafter referred to as the Act.
[2]
(2014)
35 ILJ 2146 (LC).