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[2017] ZALCJHB 224
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Mavundlela v Matlosana City Council (JS297/14) [2017] ZALCJHB 224 (7 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
case
no:
JS 297/14
In
the matter between:
HENDRICK
MAVUNDLELA Applicant
and
MATLOSANA
CITY
COUNCIL
Respondent
Heard
:
2 March 2017
Delivered
:
7 June 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter was enrolled for trial on the 2 March 2017. On that day
the parties agreed to set out the common cause facts and
the
applicant testified on a very limited basis. The parties were also
requested to include the issue of jurisdiction, raised
mero moto
by the Court, in their written submissions.
[2]
It is not disputed that the applicant was appointed by the respondent
by means of an appointment letter dated 17 May 2004. He
had applied
for the position of senior security guard and the appointment letter
correctly recorded his salary as being in the
range of R41 688
to R45 900 per annum. He had applied for the job after
responding to an advertisement that both parties
agree contained a
mistake i.e. the remuneration was stated as being in the range of
R104 352 to R115 236.
[3]
The applicant had worked for the respondent for some seven years when
he referred a dispute to the Bargaining Council. He was
granted
condonation. A jurisdictional issue was raised by the respondent and
he withdrew the matter from the Council and filed
his claim in this
Court. The statement of case records the legal issues arising from
the statement of claim as follows:
“
3.1 It is expected
that it will be the case of the First Respondent that the salary as
reflected in the advertisement was a mere
mistake. Further, that the
salary level of the Applicant was initially a level 14 which was over
the years escalated to a salary
level 16, and in terms thereof, the
Applicant is currently earning an annual salary on that level. The
Respondent will allege that
this is in line with all other security
personnel on the same level.
3.2 The Applicant intends
to defeat this defence by means of estoppel.
3.3 It is the Applicant’s
case that the Respondent is estopped from denying that the advertised
salary of R104 352.00
– R115 236.00 was the incorrect
amount. Further, that the post was supposed to be on a level 14,
whereas it was not
advertised as such. . .”
[4]
The pleadings make no reference to the basis on which the
jurisdiction of this Court is founded. The applicant seeks to be
remunerated retrospectively in terms of the lowest figure of the
advertised amount, together with annual increases thereon and
interest on those amounts. The applicant now submits that the main
issue between the parties is: “
whether
or not the Applicant is entitled to the advertised salary, as opposed
to the salary contained in his appointment letter.
The nature of this
dispute therefore falls squarely with the ambit of the terms of his
contract, whether or not such was reduced
to writing.”
In other words, the applicant submits that this court has
jurisdiction in terms of section 77(3) of the Basic Conditions of
Employment
Act.
[1]
[5]
The statement of claim does not contain any plea to the effect that
the advertisement was an offer which the applicant accepted.
The
submission that the cause of action is found on section 77(3) of the
BCEA is therefore an afterthought. Section 77(3) provides
that: “
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.”
.
[6]
In
Randwater v Stoop &
Another
[2]
the Labour Appeal Court considered the meaning to be given to section
77(3) as follows:
“
1 The word
'concurrent' in s 77(3) places the Labour Court in exactly the same
position as the High Court with the same powers and
authority in
relation to matters concerning a contract of employment.
2 The last part of s
77(3) provides the Labour Court with jurisdiction irrespective of
whether any basic condition of employment
constitutes a term of the
employment contract. This demonstrates that the Labour Court has
jurisdiction over any claim as long
as it involves a contract of
employment
3 The words 'concerning a
contract of employment' mean about or in connection with an
employment contract. The pleaded claim clearly
falls within this
categorization.
4 The words 'any matter'
in s 77(3) are broad and the literal interpretation does not limit
the claims, in relation to a contract
of employment, to a specific
category. Damages, both liquid and illiquid, are included.”
[3]
[7]
The pleaded claim in this matter contains none of the material
averments necessary to establish that the advertisement and
subsequent application by the applicant for the post amounted to an
express, implied or tacit employment contract or that a contract
was
concluded at all, prior to the letter of appointment signed by the
applicant.
[4]
For this reason I am of the view that the Court has no jurisdiction
to hear the claim.
Order
[8]
I make the following order:
1.
The referral is dismissed for want of
jurisdiction.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Henk Wissing of Henk Wissing Inc. Attorney
For
the Respondent: X.D. Matyolo
Instructed
by: Kgomo Attorneys.
[1]
75 of 1997,
(BCEA).
[2]
[2012] ZALAC 32
; (2013) 34 ILJ 576 (LAC); [2013] 2 BLLR 162 (LAC).
[3]
Id at para
39.
[4]
See Amler’s precedents of pleadings 6
th
edition at p110-114.