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[2017] ZALCJHB 123
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Peter v Capacity Outsourcing (P206/16) [2017] ZALCJHB 123 (27 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: P206/16
In the matter between:
SIVUYILE
PETER
Applicant
and
CAPACITY OUTSOURCING
Respondent
Heard:
15
February 2017
Delivered:
27 March 2017
JUDGMENT
MAHOSI AJ
[1]
This is an application in terms of section 158(1)(c) of the Labour
Relations Act
[1]
(“LRA”) for an order to make a settlement agreement
issued by the Commission for Conciliation, Mediation and Arbitration
(CCMA) under case number ECPE 587-15 an order of the court. It is the
applicant’s case that this order is sought as a result
of the
respondent’s failure to comply with the terms of the said
settlement agreement.
[2]
The respondent objected to the applicant’s late filing of his
replying affidavit and submitted that it was not supported
by an
application for condonation. The applicant’s advocate conceded
at the hearing that the replying affidavit was filed
on the 28
th
of November 2016, which was after the respondent’s Heads of
Argument were filed and that an application for condonation was
not
filed. The applicant’s replying affidavit is, therefore, not
properly before this Court. As such, it will not be taken
into
consideration.
[3]
It was common cause that on the 3
rd
of February 2016 and
pursuant to an alleged unfair dismissal, the parties concluded a
settlement agreement in terms of which the
respondent would re-employ
the applicant from the 17
th
of February 2016. The parties
seem to have agreed on the re-employment of the applicant on wholly
different terms. This is evident
from the fact that paragraph 2.3 of
the agreement was cancelled and the parties put their initials next
to the said cancellation.
Paragraph 2 of the said agreement states
that:
‘
2.1
The respondent agrees to re-employ the applicant with effect from 17
February 2016.
2.2
The applicant must report for duty on 17 February 2016 at 08h00 at 13
East Bourne Road,
Central.’
[4]
The applicant alleged that the respondent failed to comply with
paragraphs 2.1 and 2.2 of the settlement agreement by failing
to
re-employ him as of the 17
th
February 2016. He submitted
that on the 17
th
of February 2016, he reported for duty at
the offices of the respondent. However, he was allegedly informed
that there was no site
available for him to be placed accordingly. He
further submitted that the respondent informed him that they would
notify him as
and when the site becomes available. On the 1
st
of April 2106, the applicant allegedly contacted the respondent
through an sms to enquire whether the site was available for him
to
be re-employed. He allegedly received no response and that led to
this application. In its answering affidavit, the respondent
denied
these allegations.
[5]
Instead, the respondent submitted that it complied with the
settlement agreement when it re-employed the applicant on or about
the 28
th
of August 2016 at its client, Grindrod. The
applicant allegedly worked for one day and thereafter he absconded.
The respondent
further submitted that prior to the 28
th
of
August 2016, it made reasonable attempts to comply with the
settlement agreement in that it had secured alternative employment
for the applicant but when contacted the applicant simply advised the
respondent that he was not available for the positions offered.
[6]
The applicant, on the one hand, argued that there was a substantial
dispute of facts that emerged from the affidavits filed
in this
matter and sought an order to refer this matter for hearing of oral
evidence. However, the applicant did not specify the
facts that were
in dispute. It is my view that the applicant has failed to make out a
case for this Court to invoke the provisions
of Rule 7(7)(b) of the
Rules of this Court.
[2]
On the other hand, the respondent’s case was that it complied
with the settlement agreement when it re-employed the applicant
and
submitted proof of payment of his salary for the day he worked. The
respondent asked for the dismissal of this application
with costs.
[7]
In the case of
South
African Post office Ltd v CWU obo Permanent Part-Time Employees,
[3]
the Labour Appeal Court
held that
before
the Labour Court will grant an order sought in terms of Section
158(1)(c) of the LRA, it must be satisfied, at the very least,
that:
‘
i.
the agreement, is one which meets the criteria set in s 158 (1)(c)
read
with section 158(1A) of the LRA, and if it is an award, that it
satisfies the criteria set in section142A of the LRA;
ii.
that the agreement or award is sufficiently clear to have enabled the
defaulting party to know exactly what it is required to do in order
to comply with the agreement or award; and,
iii.
there has not been compliance by the defaulting party with the terms
of the
agreement or the award.
[22]
Once the Labour Court is satisfied with all of the above then it
must, nevertheless, exercise its discretion whether to grant
or
refuse the order. In exercising the discretion, the Court must take
relevant facts and circumstances into account, such as are
necessary
to satisfy the demands of the law and fairness. Necessarily, each
case must be decided on its own facts and circumstances.
There is,
otherwise, no closed list of factors to be taken into account. A
relevant factor is the time it took the party seeking
the relief to
launch the application to make the settlement or award an order of
court. The Labour Court may, for example, be more
reluctant to make
an award for reinstatement of employees an order of court where the
employees unreasonably delayed in seeking
the enforcement of the
award, yet a delay in years in seeking to make an award for payment a
sum of money may not be grounds for
refusing to make the award an
order of Court. Finally and most crucially it must be remembered that
the purpose of making an agreement
or award an order of the Labour
Court is to compel its enforcement, or enable its execution and not
for some other purpose.’
[4]
[Footnotes omitted]
[8]
In this case, it is not in dispute that the settlement agreement is
one which meets the criteria set out in section 158(1)(c)
read with
section 158(1A) of the LRA and that the agreement is sufficiently
clear to have enabled the defaulting party to know
exactly what it is
required to do in order to comply with the agreement.
[9]
The question is whether there has been compliance by the respondent
with the terms of the settlement agreement. In other words,
whether
the respondent re-employed the applicant. Fundamental to the
determination of whether the applicant was re-employed is
the
question of the existence of an employment relationship between the
applicant and the respondent pursuant to the settlement
agreement.
The applicant’s advocate conceded in the hearing that the
respondent placed the applicant at its client, Grindrod,
where he
worked for one day. He also conceded that the applicant was paid for
the day he worked for. What he took issue with was
the fact that the
compliance took place after this application was
filed and that the applicant absconded after
working for one day.
[10]
My view is that the employment relationship came into existence as a
result of the applicant’s tender of services to
the
respondent’s client on the 28
th
of August 2016 after
being assigned work. The respondent’s submission that, prior to
the 28
th
of August 2016, the applicant failed to make
himself available when offered re-employment remains undisputed, as
the applicant
did not reply to the respondent’s answering
affidavit.
[11]
Therefore, I find that the applicant failed to prove non-compliance
on the part of the respondent. In view of the Labour Appeal
Court
judgment in the case of
South
African Post office Ltd,
[5]
the applicant’s
application to make the settlement agreement an order of the court,
cannot succeed. With regard to costs,
I am of the opinion that the
requirements of law and fairness dictate that there should be no
order as to costs.
Order
[12]
In the premises, I make the following order:
(i)
The application for an order to make a settlement agreement issued by
the CCMA
under case number ECPE 587-15 an order of the court is
dismissed.
(ii)
The is no order as to costs.
__________________
Mahosi AJ
Acting
Judge of the Labour Court
APPEARANCES:
FOR THE
APPLICANTS:
Adv. D Bands,
Instructed by
Jacques Du Preez Attorneys.
FOR THE THIRD RESPONDENT:
Adv. M. Grobler,
Instructed by
Kirschmanns Incorporated.
[1]
Act 66 of 1995.
[2]
Rule
7
(7)
provides that “the court must deal with an application in any
manner it deems fit, which may include-
(a)
an order to hold a pre-trial conference;
(b)
referring a dispute for the hearing of oral evidence; and
(c)
an order as to costs.”
[3]
[2013] 12 BLLR 1203
(LAC).
[4]
At paras 21-22.
[5]
[2013] 12 BLLR 1203
(LAC).