About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 92
|
|
NUMSA obo Vanqa v Engen Bassons Services Station (J2179/14) [2017] ZALCJHB 92 (20 March 2017)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase
no: J2179/14
In
the matter between:
NUMSA OBO ANDILE
VANQA
Applicant
and
ENGEN BASSONS
SERVICES
STATION
Respondent
Heard
:
09 March 2017
Delivered
:
20 March 2017
Comments:
(arrear wage claim –
non-compliance with settlement agreement – tender of services
not accepted in breach of agreement
– estoppel- waiver –
prescription – prescription of award not in issue)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant, a petrol attendant, is
claiming arrear wages for the period 31 May 2010 until 2 September
2013. The claim arises
out of a settlement agreement which was later
made an order of court in terms of which the respondent (‘Engen
Bassons’)
had agreed to reemploy him with effect from 31 May on
the same terms and conditions that applied to him previously except
that
he would render his services but at a different petrol station
from the one he had been employed at.
[2]
Although the matter had been launched in
the form of an application on 13 May 2016 the Labour Court ordered
that the founding and
answering affidavits would stand as a statement
of case and responding statement for the purposes of trial.
[3]
The respondent raised a special plea of
prescription in respect of his claim for the period 31 May 2010 to 17
October 2011 prescription,
on the basis that he only filed his claim
on 18 October 2014.
[4]
The respondent also disputed that the
applicant had tendered his services on 31 May 2010. Further, on
account of an affidavit in
which he said that he did not want to work
for the respondent anymore it claimed that “... the applicant
is barred/stopped
from claiming any remuneration as from 11 December
2010 as the applicant, in writing represented he does not want to
render services
for the respondent.“
[5]
A claim of non-joinder in respect of Willow
Crest Motors CC was withdrawn by the respondent, because Engen
Bassons accepted that
in so far as the court determined that the
applicant was entitled to any of the wages he claimed for the period
in question, it
accepted liability for such remuneration.
[6]
Condonation for the late filing of the
respondent’s answering affidavit was granted.
Chronology
[7]
The applicant was dismissed in March 2010.
He referred his dispute to the relevant bargaining council the same
month and on 4 May
2010 a settlement agreement was concluded between
himself and Engen Bassons in terms of which he would be employed from
31 May
2010 at Willow Crest Motors CC and would be paid a cash amount
of R 800.00.
[8]
The Applicant was paid the cash amount but,
despite him tendering his services on 31 May and reporting on two
subsequent days for
that purpose at Willow Crest Motors, he was not
re-employed in terms of the agreement. The applicant went back to the
bargaining
council’s dispute resolution centre to obtain
assistance following the respondent’s non-compliance with the
agreement
and on 4 June 2010, he deposed to an affidavit that the
respondent had failed to call him back for work.
[9]
Thereafter, he launched proceedings on 26
July 2010 to make the award an order of court. The settlement
agreement was finally made
an order of court on 10 November 2010.
Having obtained the order he then sent it to the manager of Engen
Bassons, Mr C De Waal.
He phoned Mr De Waal to check whether he
received the court order and the manager told him that there was
nothing he could say
to him and that everything would be done by the
respondent’s lawyer. He was never contacted by the respondent’s
attorneys.
[10]
On 11 November 2010 the applicant stated in
an affidavit that he was not going back to work for the respondent,
that he wanted them
to pay him backpay from the date of his dismissal
and that it failed to put him back at work. He claimed that he made
the affidavit
after he was advised by staff at the Labour Court that
he should claim the monies owing to him because it was obvious that
the
employer did not want him back anymore. He stated in the
affidavit:
“
I
am not going back to work for Bassons Service Station I want them to
pay me money from the date they terminate my job with them
from 16
March 2010 the company failed to put me back at work in D. R.C. so I
want those payments to be made after 10 day I used
to get R 1000-00
and R 800.00 per week + R 4000- leave pay per year.”
[11]
The applicant agreed that he had faxed this
affidavit to Engen Bassons, but never got any response nor did he
receive any of the
payments he was claiming. He denied that he had
given the original affidavit together with the court order to De Waal
on or about
11 or 12 November 2010, but claimed that he had given all
his documents to his union, NUMSA. The respondent never called any
witnesses
to rebut the applicant’s version of how it came to
have the affidavit, but nothing really turns on this. There was also
no
evidence given by the respondent about what it did on receiving
the applicant’s affidavit in relation to the representation
it
claims he had made that he did not want to tender his services to it
any longer.
[12]
Under cross-examination, it was repeatedly
put to the applicant that, when he stated he was not going back to
work that was a decision
on his part. The applicant said that the
reason he had done so was because he had been ‘to many places
to get his job back’,
which appeared to be a reference to his
previous tendering of his services and approaches to the Labour Court
and the bargaining
Council Dispute Resolution Centre. He was also
asked when he decided that he ‘wanted more money’ and is
somewhat cryptic
response was that “The more I stayed at home I
realised the money would be more”.
[13]
In any event, within a couple of months, on
16 March 2012, the applicant through his union had launched a
contempt application to
enforce the settlement agreement which had
been made an order of court. There was no evidence of any other
communications between
the union and the respondent before this.
[14]
For reasons which are not explained, it was
only much later on 2 August 2013 that the applicant obtained an
ex
parte
order calling upon the second
respondent , Mr S De Walt ,to show cause by 23 August 2013 why he
should not be found guilty of contempt.
According to the respondent,
it was Mr S Gebhardt who should have been cited as the second
respondent in the contempt application.
Although the court order also
stated that the second respondent was guilty of contempt, it would
appear that the honourable judge
had intended to hold Engen Basson in
contempt and that the reference to the second respondent was probably
a patent error, because
one of the objects of the obtaining the order
was to summons the second respondent to court to answer to the
contempt charge.
[15]
Be that as it may, on 23 August 2013 the
court ordered Engen Bassons to re-employ the applicant from 2
September 2014. It is common
cause that it did so. The court also
ordered that the question of arrear payments should be dealt with by
way of separate process,
which is what these proceedings are
concerned with.
[16]
On the evidence, I am satisfied that the
applicant took every reasonable step to fulfil his side of the
settlement agreement by
tendering his services, but his efforts had
simply been stonewalled by the respondent which had done nothing to
enable him to take
up employment at Willow Creek Motors as agreed.
The applicant took the next logical step which was to apply to have
the settlement
agreement made an order of court and succeeded in that
on 10 December 2010. His evidence that the employer was non-committal
when
he served the order on it and never came back to him is
uncontradicted.
[17]
By the time he obtained the court order, he
should have been employed already for approximately six months.
Instead, he had been
out of work and going from pillar to post to
enforce the agreement. He was obviously anxious to obtain financial
relief as soon
as possible. He claimed he was advised that the
respondent was clearly set against taking him back and that he should
demand monies
owing to him. This evidence was not disputed. This
advice appears to have prompted him to depose to the affidavit on 11
December
2010 and serve it on the respondent in the hope it would at
least elicit the payment of backpay to him by the respondent.
[18]
There
was no evidence Engen Bassons did anything when it became aware of
the affidavit. If it indeed accepted it as a representation
that the
applicant was tendering a resignation, it gave no indication of this
and did not elect to respond to his claim for arrear
wages or leave
pay up to that date. In the absence of any evidence from the
respondent itself, it cannot be said that the
respondent acted on the
representation it claims the applicant made. It seems it had adopted
a tactic of simply not responding
to any communication from the
applicant. It is trite that a party that wishes to rely on estoppel
must show not only that it relied
on a representation made but that
it acted to its detriment.
[1]
[19]
In its answering statement, the respondent
claimed that the applicant’s affidavit amounted to a
resignation. In the pre-trial
minute, the court was asked to
determine two issues relating to the effect of his affidavit, but not
whether he had terminated
his service on 11 December 2010. The first
issue related to the preliminary point I have just dealt with as to
whether the applicant
was barred or estopped from claiming
remuneration after that date on the basis of the representation in
the affidavit. In addition,
in framing the issues the court was
required to determine, one of them was framed thus:
“
4.4
Whether the applicant by deposing to the affidavit of 11 November
2010
abandoned any claim for
remuneration
which he might have had
subsequent to the said date.”
(emphasis
added)
[20]
This
alternative reframing of the problem amounts to asking the court to
decide if he had waived his claim to reinstatement. The
basic
requirements of waiver are that, waiver is first and foremost a
matter of intention' and 'the knowledge and appreciation
of the
party alleged to have waived is furthermore an
axiomatic
aspect
of waiver'. Furthermore, the onus of proving waiver is on the party
alleging it.
[2]
[21]
Apart from the fact that waiver had never
been pleaded, it was never put to the applicant that he must have
realised when he said
he was not going back to work for Engen Bassons
that he was abandoning any right he had under the settlement
agreement to demand
employment and that he was abandoning the
judgment in his favour he had just obtained. His own statement to the
effect that the
longer he remained at home the more the respondent
owed him does not suggest that he believed all his claims against the
respondent had come to an end on 11 December 2010, but that he still
had a claim against it as long as he was not taken back. Moreover,
to
the extent that he believed he had to abandon his claim to employment
in order to secure his backpay that was clearly based
on advice that
his prospect of securing employment in terms of the settlement
agreement was bleak and without a proper appreciation
of his rights.
[22]
It was suggested in argument that in the
absence of a recurrent tendering of his service, the applicant had no
basis for an ongoing
wage claim. If this was correct, it would mean
that a person whose tender of service has not been accepted even
though it was made
in terms of an agreement, must incur the
indefinite expense of regularly re-tendering his service despite the
non-compliance of
the employer with a reciprocal undertaking it made
to ensure that person’s employment provided they reported for
duty on
an agreed date. Once a tender of service under these
circumstances has been expressly or implicitly rejected by the
employer’s
conduct, as long as the employee takes further steps
to enforce the agreement, I do not believe it is necessary for him to
repeatedly
tender his services. Nonetheless, he did make a
representation that he would not be tendering his services going
forward when he
sent the respondent his affidavit of 11 December
2010.
[23]
I accept that between 11 December 2010 and
the launch of the contempt proceedings, the employer might
conceivably taken the view
that he had terminated his services, even
though it did nothing to obtain clarity on whether the applicant was
abandoning the judgement.
However, the respondent gave no evidence as
to its actual understanding and failed to take any steps to act on
the applicant’s
demand for his arrear wages and leave pay,
which he claimed was owing to him and which the respondent never
disputed was due to
him. The respondent could have clarified
whether the applicant had unequivocally abandoned any ongoing claim
to employment
in exchange for accepting payment of his arrear wages
and leave pay 31 May 2010, by paying him out and confirming his
acceptance
of the arrangement but it never did. It is also important
to remember that in this instance, the respondent would have been
assuming
not merely that the applicant was no longer trying to
enforce the settlement agreement, but that he was knowingly
abandoning his
right to enforce a judgement he had only just obtained
the day before after much perseverance.
[24]
He then launched the contempt application
which was clearly at odds with someone who had unequivocally
abandoned his rights. I am
not satisfied that there is enough
evidence to show that the applicant most probably knew that by making
the representations in
the affidavit of 11 December that he was
surrendering all further right to rely on the settlement agreement,
even if the respondent
still did not pay him his arrear wages up to
that date.
[25]
However, I accept that between sending the
affidavit to the respondent and when it became aware he was
persisting with enforcing
the settlement agreement by means of
contempt proceedings in March 2011, it was not obvious he was still
asserting his right to
employment during that time, on the evidence
available. Nevertheless, once it received notice of the contempt
proceedings there
is no reason, in the absence of evidence to the
contrary, to believe there was any reason to doubt that the applicant
was still
persisting with his claim to be employed.
[26]
In the circumstances, the respondent was
liable for payment of the applicant’s remuneration for the
following periods:
26.1
From the date he tendered his services on
31 May 2011 until he withdrew the tender of his services on 11
December 2010, and
26.2
From 10 March 2011 when the applicant’s
union first served the contempt application on the respondent until
23 August 2013
when the respondent was ordered to employ the
applicant with effect from 2 September 2013.
The special plea of
prescription
[27]
The respondent argues that the applicants
claim is for settlement of an ordinary debt and any portion of the
claim due more three
years prior to that date has prescribed if
s
11(d)
of the
Prescription Act, 68 of 1969
, applies.
Consequently the portion of the applicant’s claim which might
be affected is the period from 31 May 2011
until 16 October 2011.
[28]
The applicant contends that on the
authority of recent Constitutional Court judgements dealing with
prescription, the referral of
the original dismissal dispute to MIBCO
in March 2010 interrupted prescription until the conclusion of these
proceedings.
[29]
Alternatively, when the applicant filed his
application to make the settlement agreement an order of court in
terms of
section 158
(1) (
[30]
C) that interrupted prescription. In the
further alternative, the filing of the contempt application on 18
March 2011 interrupted
prescription until the Labour Court judgment
handed down in September 2013.
[31]
The
first Constitutional Court judgement in the case of
Sizwe
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a
Metrobus and Others
[3]
dealt comprehensively with the issue of the relationship between the
Prescription Act and
the LRA was unanimous in effect but regrettably
lacked a common ratio. This was recognised in the constitutional
court’s
subsequent judgement in
Maria
Jane Mogaila v Coca Cola Fortune (Pty) Limited
[4]
where
it also had to deal with an award ordering reinstatement which was
more than three years old when the employee tried to enforce
it after
unsuccessful review proceedings had run their course. The court
looked at the outcome of the
Myatha
despite
the differing rationales for the three judgments in that matter and
concluded that on any approach Mogaila’s award
had also not
prescribed, viz:
“
[28]
Whether the arbitration award in [the employee’s] favour could
not have prescribed because the
Prescription Act does
not apply at
all to LRA matters, as the first and third judgments held (or
because, even if that statute were applicable, the reinstatement
order was “not an obligation to pay money, deliver goods or
render services”), or because, as the second judgment held,
the
CCMA referral interrupted prescription, persisting until the
finalisation of the review proceedings in October 2013, Ms Mogaila
must succeed.
[29]
On the second judgment’s approach, the arbitration award would
have prescribed only in October 2016. Ms Mogaila filed
her
application in this Court timeously, in April 2016. Prescription was
therefore interrupted, again, pending the finalisation
of these
proceedings. On either approach, Ms Mogaila is entitled now to
proceed with the certification of the award under
section 143
of the
LRA.”
[32]
In
Hendor
Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) v
National Union of Metalworkers of South Africa and others
[5]
the
LAC held that an order of reinstatement was not prospective in effect
and that any claim for remuneration of the date on which
reinstatement took effect is a separate contractual claim. As I
understand the respondent’s argument, it contends that the
applicant’s claim for remuneration for the period after 31 May
2011, by parity of reasoning, is also simply a claim for a
contractual debt and subject to the same prescription period
applicable to other contractual debts.
[33]
The first point to note is that in terms of
paragraph 6 of the settlement agreement entered made an arbitration
award in terms of
section 142
A (1) of the LRA. Consequently, in
terms of the outcome of the Constitutional Court decisions, it did
not require a court order
to preserve its longevity beyond three
years, though it would still have been a necessary precursor to
contempt proceedings as
the events pre-dated the amendments to
s 143
of the LRA concerning the enforcement of awards which only came into
effect on 1 March 2015. However, the prescription issue in
this case
is not about the enforceability of the settlement as an award,
in the sense that three years after it was concluded,
prescription is
being raised to bar the applicant from enforcing it. Firstly, the
future enforceability of the award more than
three years after it was
concluded on 4 March 2010 was in any event assured by the order
making it any order of court.
[34]
Secondly, the jurisdiction of this court to
deal with the claim for arrear wages does not arise out of the LRA
but out of s 77(3)
of the Basic Conditions of Employment Act, 75 of
1997 (‘the BCEA’), which states:
“
(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.”
[35]
In
consequence of the settlement agreement, which was made an award and
subsequently an order of court, the applicant acquired a
right to
reinstatement. That right would have been preserved for more than
three years either on account of the effect of the Constitutional
judgments, even in the absence of having been made an order of court.
But this case is not concerned with whether his right to
enforce his
reinstatement prescribed. Rather, it is concerned about whether a
claim for arrear wages which is essentially “an
obligation to
pay money” and therefore does constitute a debt in terms of the
reasoning of the third judgment
[6]
in
Myathaza
and the reasoning of the first judgement,
albeit
that this was an
obiter
point in the first judgment.
[7]
[36]
The applicant’s claim to wage for the
period in question relates to whether or not he can sue for
contractual damages on the
basis that he was not employed in terms of
the settlement agreement, not whether the court can enforce his claim
for employment
in terms of it. The dispute referred to MIBCO was an
unfair dismissal dispute, not a claim for arrear wages. Consequently,
I am
satisfied the authority of
Hendor
is unaffected by the judgments in
Myathaza
and
Mogaila.
In
this instance a claim for arrear remuneration is a claim within this
court’s jurisdiction under s 77(3) of the BCEA and
is a claim
for payment due which this case is required to determine, not a claim
for enforcement of an award already made. Consequently,
the ordinary
provisions governing extinctive prescription of debts apply. The only
relevant one in this instance is
s 15(1)
of the
Prescription Act
which
states:
“
(1)
The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor
of any
process whereby the creditor claims payment of the debt.”
In
this instance, payment of the debt was only first demanded on 17
October 2014, and accordingly cannot extend to remuneration
the
applicant ought to have earned prior to 16 October 2011 in terms of
s
11(d)
of the
Prescription Act.
Order
[37]
In the circumstances, the following order
is made:
37.1
The respondent is liable to pay the
applicant arrear remuneration for the following periods in the
amounts stipulated:
37.1.1
From 16 October up to and including 10
November 2010, R 649.80 per week amounting to R 2109.33.
37.1.2
From 18 March 2011 until 31 August 2011, R
649.80 per week for 23.5 weeks amounting to R 15,270.30.
37.1.3
From 1 September 2011 until 31 August 2012,
R 708.30 per week for 52 weeks amounting to R 36,831.60.
37.1.4
From 1 September 2012 until 31 August 2013,
R 772.20 per week for 52 weeks amounting to R 40, 154.40.
37.2
The respondent is further liable for
payment of interest at 9 % per annum on the amounts due in terms of
paragraph 35.1 above, calculated
from the end of each month during
the periods mentioned in which the arrear remuneration accrued.
37.3
The respondent must pay the applicant’s
costs.
[38]
In the event parties are unable to agree on
the amount of aggregate interest payable in terms of paragraph 3 of
the order, either
party may approach the court on notice for
determination thereof.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
I Mohamed of Hogan Lovells (South Africa)
RESPONDENT:
A J Nel instructed by
Trutter, Crous, Wiggil & Vos Attorneys
[1]
Barclays
Western Bank Ltd v Fourie
1979 (4) SA 157
(C) at 161A-C
[2]
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA) at 49E-50G
[3]
CCT
232/15 (15 December 2016)
[4]
CCT
76/16 ( 2 March 2017)
[5]
[2016]
2 BLLR 107 (LAC)
[6]
At [119].
[7]
At
[59]: “But even if the
Prescription Act were
to apply,
the main award granted in favour of the applicant could not
prescribe because it is not an obligation to pay money
or deliver
goods or render services by Metrobus to the applicant.
.
.”