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[2017] ZALCJHB 43
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United National Transport Union v Operating Company (Pty) Ltd (J674/14) [2017] ZALCJHB 43 (14 February 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase
no:J 674/14
In
the matter between:
UNITED NATIONAL
TRANSPORT
UNION (“UNTU”)
Applicant
And
OPERATING COMPANY
(PTY) LTD
(“BOMBELA”)
Respondent
Heard
:
10 February 2017
Delivered
:
14 February 2017
Summary:
(application to amend the statement of
claim-opposed-whether amended statement would be excipiable –
tacit agreement not relied
on by applicant – leave to amend
granted)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter (‘UNTU’)
has brought an application to amend its statement of claim dated 17
October 2016.
The application is opposed by the respondent
(‘Bombela’) on the basis that if the amendment was
permitted, the statement
of claim would still be vague and
embarrassing and would not disclose a cause of action. Prior to the
notice of intention to amend
of 17 October 2016, the applicant’s
statement of claim has been through numerous revisions.
[2]
To contextualise history of the matter, it
is sufficient for present purposes just to state that the applicant
filed its original
statement of claim on 20 March 2014. It then filed
a first amendment of its statement of claim on 29 July 2016.
Following the filing
of answering statements and the applicant’s
replication, the applicant filed a further notice of intention to
amend his statement
of claim on 26 September 2016. The respondent
filed a notice of intention to accept to that proposed amendment,
calling upon the
applicant to remove the causes of complaint. On 17
October 2016 the applicant filed a notice of intention to amend
paragraph 8
of the statement of claim and the respondent gave notice
of its intention to object thereto.
[3]
I mention the above because, it simply
illustrates that the applicant’s statement of case has evolved
through a number of
iterations, which might have been avoided by
obtaining better instructions at an earlier stage. Be that as it may,
all that the
court needs to determine is whether the latest proposed
amendments, if permitted, would result in a statement of claim that
is
vague and embarrassing and does not disclose a cause of action.
[4]
The claim the applicant is pursuing is a
claim for overtime payment. In essence, it claims that the train
drivers which it represents
work an ordinary working week of 40
hours, but since May 2013, they only received overtime rates of pay
once they had worked more
than 48 hours a week. Initially, the claim
was based on their interpretation of the terms of their contracts of
employment and
the operating procedures of the respondent.
Subsequently, they amended their claim to take account of an email
which they allege
amended the operating procedures.
[5]
The clause which they seek to insert by way
of amendment reads:
“
8.
By
custom/and/or practice and/or conduct
and/or in accordance with the Policy
,
train drivers
were and/or are required
to work
by Bombela, in the following
way-
8.1
Since they started working at Bombela, or since Bombela and UNTU
concluded a recognition agreement
on 9 October 2011, train drivers
scheduled by rostered shifts to work in periods of 6 x 9 -hour
shifts (of which 1 hour is
an unpaid lunch hour) totalling 54 hours,
with a two day break between each period;
8.2
The number of hours that train drivers work in such periods depends
on the number of shifts
that are allocated by shift rosters, so that
some employees work up to 54 hours in a week and others were less
than 54 hours in
a week;
8.3
The rosters are compiled taking account of the operational needs of
Bombela and the availability
of train drivers;
8.4
The
number of hours worked in any period of rostered shifts that
is in excess of hours constituting the ordinary hours of a working
week, is overtime
.”
(emphasis
added)
[6]
UNTU objected vehemently to the
respondent’s opposition to its application to amend the
statement of case. UNTU had called
on Bombela to withdraw its notice
of intention to except on the basis that the crux of the exception
was that, it claimed UNTU
had to plead evidence in its statement of
case which was plainly bad in law. Other criticisms related to
Bombela’s claim
that UNTU had failed to identify the parties to
the contract and on whose behalf it was acting, but these issues
appear to have
been resolved so I will not deal with them.
[7]
At paragraph 46.3 of its replication to
Bombela’s opposition, UNTU stated:
“
UNTU’s
cause of action
is that by custom and/or practice and/or conduct and/or in accordance
with Bombela’s Working Hours Policy, its members are
entitled
to be paid overtime for work in excess of 400 per week.
The
facts pleaded in paragraph 8 of the intended amendment
,
if true,
establish that case
.”
(emphasis
added)
[8]
The respondent raised a number of
objections to the proposed paragraph 8 on the basis that it implied
that the applicants are relying
on a tacit agreement which has not
been properly pleaded. In the result, the respondent contends the
amendment is deficient because
it does not disclose a cause of action
based on a tacit agreement. The respondent refers to a number of
requirements to be met
if a party wishes to rely on the existence of
a tacit agreement, including:
8.1
it
must be specifically alleged that the contract relied on is a tacit
one,
[1]
and
8.2
the
facts and circumstances from which the tacit contract can be inferred
must be set out;
[2]
[9]
The central question then is whether the
applicant has indeed pleaded a tacit agreement as an alternative
cause of action to its
main cause of action, and if so whether it
pleaded it with sufficient particularity to disclose the basis for a
cause of action
based on a tacit agreement, which would also enable
the respondent to plead to the facts and circumstances it intended to
prove
to establish the existence of a tacit agreement.
[10]
Before dealing with that, it is necessary
to emphasise that if one has regard to the other portions of the
applicant’s statement
of claim dealing with the individual
train drivers’ contracts of employment, it is clear from
paragraph 3 of the statement
of claim that the applicant’s
claim that the employment contracts are incorporated in written
letters of appointment concluded
at various times from 2010 onwards
which have similar or the same provisions and amongst other things
state that the appointments
are subject to Bombela’s conditions
of service. The claim further elaborates in paragraph 6 that the
working conditions of
service relating to hours of work contained in
the Working Hours Policy of the respondent as amended in terms of an
email which
reflected changes to the terms and conditions of
employment.
[11]
In the proposed amendment to paragraph 8,
the essential change proposed is in the preamble of that paragraph
which previously simply
read:
“
8.
By custom
and
practice
and
in accordance with the policy-
8.1
....”
[12]
It is very clear from the proposed
amendment that nowhere in the statement of claim does the applicant
expressly state that it is
relying on a tacit agreement as an
alternative contractual basis of the claim set out in the statement
of claim preceding paragraph
8, which is based on driver’s
letters of appointment and that the working conditions relating to
hours of work are contained
in the Working Hours Policy as amended by
the email. A careful reading of the proposed amendment to paragraph 8
shows that, that
paragraph does not set out a basis for contending
that the ordinary hours of work ought to be 40 as part of the
drivers’
conditions of service. All it states is that hours in
excess of ordinary hours are considered overtime which appears to be
a somewhat
trite proposition. For the rest, paragraph 8 records what
the UNTU claims was the established practice for rostering of
drivers.
[13]
Thus, it would be completely disingenuous
of the UNTU to argue subsequently that it had indeed pleaded an
alternative contractual
basis for its members’ claims based on
the existence of a tacit contract, when this was never made explicit
despite the numerous
revisions of their statement of claim. In the
absence of making such a claim, I do not see how their amendment can
be criticised
as being deficient in establishing the basis for a
tacit agreement. For that reason, I do not believe it is excipiable
as vague
and embarrassing or as not disclosing a cause of action.
Nonetheless, it seems to be true from the claim made in paragraph
46.3
of the replication that UNTU believed that the proposed
amendment somehow disclosed the essential requirements of its
members’
cause of action. In the circumstances, it is
understandable that the respondent would have felt justified in
opposing it on the
basis that it concealed a badly pleaded
alternative cause of action.
[14]
In his replying argument however,
Mr
Bruinders
SC
who appeared for UNTU assisted by
Ms
Millard
also expressly disavowed any
contention that paragraph 8 sought to set out a cause of action
different from the contractual cause
of action based on written
letters of appointment and documents governing conditions of service
set out in the preceding paragraphs
of the statement of claim. On a
careful reading of paragraph 8, I think the text supports this view.
[15]
Having regard to the above, I believe the
amendment should be permitted but I am disinclined to award the
applicant any costs because
of its somewhat misleading suggestion in
paragraph 46.3 of its replication that the amended provision did set
out a cause of action.
Order
[16]
The applicant is granted leave to amend its
statement of claim in accordance with its notice of intention to
amend dated 17 October
2016.
[17]
No order is made as to costs.
[18]
The parties are further directed to hold a
pre-trial meeting and file a pre-trial minute by 14 March 2017.
_______________________
Lagrange J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
T
Bruinders SC assisted by K
Millard instructed by Fluxmans
Inc.
RESPONDENT:
P
Buirski assisted by S
Khumalo instructed by
Bowmans
[1]
E
C Chenia And Sons CC v Lamé & Van Blerk
[2006] ZASCA 10
;
2006 (4) SA 574
(SCA) at 578F
[2]
Roberts
Construction Co Ltd v Dominion Earth-Works (Pty) Ltd and Another
1968 (3) SA 255
(A) at 261F-262A.