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 470
|
|
JBC Roof Cover (Pty) Ltd v Motsoeneng NO and Others (JR2319/17) [2017] ZALCJHB 470 (15 December 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 2319/17
In
the matter between:
JBC
ROOF COVER (PTY) LTD
Applicant
and
MBONGENI
MOTSOENENG
N.O.
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (
NO
)
Second Respondent
ADRIAAN JOHANNES DIEDERICKS
Third Respondent
Heard
:
21 November 2017
Delivered
:
15 December 2017
Summary:
(Review – dismissal – jurisdiction - agreement to engage
employee permanently after three months’
probation -
misrepresentation of fixed term agreement as probation contract –
signed agreement not encapsulating employment
contract –
dismissal occurring in any event before expiry of fixed term –
dismissal established – dismissal procedurally
and
substantively unfair)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an application to review an arbitration award in which the
3
rd
respondent, Mr A J Diedericks, (‘Diedericks’),
was held to be unfairly dismissed and reinstated with six months’
back pay. The applicant contends that the arbitrator incorrectly
found that Diedericks had been dismissed when in fact his three-month
fixed term contract had merely come to an end. As the dispute
essentially concerns whether or not Diedericks was dismissed or
whether his employment came to an end as a result of the expiry of
his fixed term contract of employment, the standard of review
is an
objective one rather than a matter of reasonableness.
[2]
Diedericks signed a “(TEMPORARY) Employment Agreement” on
8 February 2016 in terms of which he was employed as a
Quality
Controller. Other provisions of the agreement which are pertinent
read:
“
TEMPORARY CONTRACT
The employee agree
(sic) and
understand that this is only a temporary position. He will only work
for the company from 8-02-2016 until 8-5-2016.
…
Termination of employment
Either party can terminate this
agreement with immediate effect because this (sic) is a casual
worker.”
[3]
The stance of the applicant was that the agreement encapsulated all
the terms of Diedericks’s employment contract and
that when the
period of the contract expired, the employment relationship
terminated by agreement. There was also no expectation
of further
employment. Consequently, no dismissal took place. As a result of
adopting the view that Diedericks’ employment
with it was
entirely governed by the agreement, the applicant decided at the
outset that it did not intend calling any witnesses
in rebuttal of
Diedericks’ evidence.
[4]
Diedericks’ case was that he had expected to be permanently
employed and the 3 month agreement was merely intended to
cover a
probation period. In any event, he had received a letter of
termination, ending his employment on 28 April 2016 on two
weeks’
notice. At the arbitration his legal representative made it clear
that he only sought compensation, not reinstatement.
He also
contended that his dismissal was procedurally unfair because no
procedure was followed. Further, his dismissal was also
substantively
unfair because no reason for the letter of termination on 28 April
was provided, other than to refer to the termination
provision in the
agreement (cited above) which provided that termination could be
effected immediately.
[5]
Diedericks’ evidence was uncomplicated. He had left his former
permanent employment to take up the quality controller
position at
the applicant. He was interviewed by the owner of the applicant, Mr J
Conradie (‘Conradie’) for the position.
The owner told
him that “I can see that you know what you’re talking
about, you’ve got expertise, I want to use
you, I need you. He
said you will be put on a 3 months’ probation period, after
which you would be employed permanently.
He said this is a permanent
position because I asked him. I told him specifically I can’t
leave my permanent job for a temporary
job and he said Adriaan, I
want to make you part of my business.” On that understanding,
Diedericks resigned from his existing
permanent job to take up
employment with the applicant, only because the new appointment
offered better remuneration. Diedericks
had been engaged with his
previous employer for two years and after the termination of his
service with the applicant had been
re-employed by that employer.
[6]
He had been given the agreement when he commenced working by Ms A
Smit (‘Smit’), whom he described as “the
admin
human resources representative” of the applicant. She told him
that there was a probation period of 3 months after
which he would be
employed permanently. He testified that he queried the three month
contract, but was told that, that was the
applicant’s contract
for probation so he signed it. Diedericks did not dispute the terms
of the written agreement, but said
on his first day of employment by
the applicant he had no reason not to trust Smit’s
clarification. Despite the terms of
the agreement he felt that they
were subject to that clarification. He did not seek to amend the
agreement because he did not want
to introduce an element of mistrust
into his new employment.
[7]
His employment ended when he was called back to the applicant’s
office and was given “the resignation letter”
by Smit,
who told him that his “work has been terminated” and he
must leave immediately.’
Evaluation
[8]
The essence of the dispute between the parties is that the applicant
decided to stand for by what was in the written agreement
as
representing the entire contract between the parties, whereas
Diedericks contended that the contract was that, it had been both
agreed with the owner of the business and confirmed by Smit’s
representations that the written agreement should merely be
construed
as a probationary contract, and that he would be permanently employed
thereafter.
[9]
Critically, even though Smit was present in the arbitration she was
never called to rebut Diedericks’s version of her
representations, nor was his version about his interview with the
owner contradicted. Consequently, on the evidence, the only version
is Diedericks’ version. In effect, that version is that there
was an oral agreement he would be employed permanently after
serving
a probation period and that notwithstanding the wording of the
written agreement he was asked to sign, that agreement simply
was
intended to cover the probation period.
[10]
It appears that the applicant took the view that the agreement
constituted the exclusive memorial of the contract of employment
and
that it could ignore any representations made which induced
Diedericks to sign it. However, the applicant did not take the
precaution of including a provision in the agreement to the effect
that the agreement encapsulated all the terms of the employment
contract and that nothing else was agreed to unless reduced to
writing and recorded in the contract, or words to that effect.
[11]
The so-called parole evidence rule has been characterised in the
following terms:
“
Despite its difficulties, it
serves the important purpose of ensuring that where the parties have
decided that their contract should
be recorded in writing and that
such contract shall be the sole, complete record of their agreement,
their decision will be respected,
and the resulting document, or
documents, will be accepted as the sole evidence of the terms of the
contract. As it was expressed
by Corbett JA, in
Johnston v
Leal
:
‘
It
is clear to me that the aim and effect of this rule is to prevent a
party to a contract which has been integrated into a single
and
complete written memorial from seeking to contradict, add to or
modify the writing by reference to extrinsic evidence and in
that way
to redefine the terms of the contract . . .
To
sum up, therefore, the integration rule prevents a party from
altering, by the production of extrinsic evidence, the recorded
terms
of an integrated contract in order to rely upon the contract as
altered.”
[1]
The
learned authors go on to state:
“
One
does not need a very fertile imagination to see how, necessary as the
rule is, it can lead to injustice if rigorously applied,
by excluding
evidence of what the parties really agreed. It has therefore been the
courts’ constant endeavour to prevent
the rule being used as an
engine of fraud by a party who knows full well that the written
contract does not represent the true
agreement. In the nature of
things, this endeavour to achieve a fair result without destroying
the advantages inherent in written
contracts has led to some
decisions that are difficult to reconcile. Perhaps the best way to
look at the rule is to see it as a
backstop that comes into operation
only in the absence of some more dominant rule, giving way to the
rules concerning misrepresentation,
fraud, duress, undue influence,
illegality or failure to comply with the terms of a statute, mistake,
and rectification. If it
did not do so, none of these rules would
apply to written contracts, which would be absurd. In all such cases,
of course, the burden
is on a party who has signed a written contract
to displace the maxim caveat subscriptor by proving lack of the
necessary animus”
[2]
[12]
In the circumstances, it seems more probable than not that Diedericks
was offered permanent employment by Conradie subject
to a probation
period and despite the terms of the written temporary employment
contract, it was represented to him that the contract
was merely to
cover the probationary period. It was on the basis of that
representation and the discussions he had with the owner
that he
signed the agreement despite its terms on which he had specifically
sought and obtained clarity. The fixed term contract
argued for by
the applicant was also at odds with what the undisputed evidence of
what Conradie had said to Diedericks. Moreover,
his own conduct in
terminating his permanent employment with his former employer after
the interview with Conradie supports the
inference that he was
offered permanent employment subject to probation. In the
circumstances, the temporary employment agreement
did not accurately
capture the terms of his employment and to the extent that the
applicant sought to argue that it could rely
on it, it sought to rely
on a document which in truth did not reflect the terms of Diedericks’
employment.
[13]
Therefore, properly construed the end of the fixed term period would
have brought Diedericks’ probationary status to
an end, but not
his employment unless there was some other overt act by the employer
ending it. In fact, this is what happened,
as the applicant gave
Diedericks written notice of his termination prior to the end of the
fixed term period and tendered to pay
two weeks’ notice pay,
covering a period that extended beyond the fixed term period. Thus,
even if Diedericks had been employed
on a fixed term contract, it did
not end at the expiry of that term but was terminated before it had
elapsed.
[14]
Consequently, I am satisfied that Diedericks was dismissed on 28
April 2016. Further, as no reason was given for his dismissal
nor was
any procedure followed associated with such a reason, his dismissal
was substantively and procedurally unfair.
Relief:
[15]
I agree however with the applicant that the arbitrator plainly erred
when he ordered the reinstatement of Diedericks as his
representative
had made it clear that he was not seeking reinstatement. Accordingly,
that portion of the relief and the award of
back pay associated with
the retrospective reinstatement must be set aside. That also requires
a fresh consideration of the appropriate
relief in the form of
compensation.
[16]
Having regard to the fact that the dismissal was both procedurally
and substantively unfair and that the applicant did not
dispute the
representations made to Diedericks, but also that the applicant’s
employment by the applicant was of short duration
and the applicant
was fortunate enough to regain his former employment 4 months’
remuneration as compensation would be appropriate.
Order
[1]
The arbitration award of the first respondent dated 17 October 2016
issued under case number
GAJB12031-16 (‘the award’) is
reviewed and set aside only to the extent that he reinstated the
third respondent and
awarded six months back pay.
[2]
Paragraph 67 of the award is renumbered as paragraph 63 and
paragraphs 62 to 66 inclusive
of the award are substituted with the
following paragraph:
62.
The respondent, JBC Roof Cover (Pty) Ltd, must pay the applicant
compensation in the amount of R 50,000 (fifty thousand rands)
being
equivalent to four months remuneration at the time of his dismissal.
[3]
The applicant must pay the third respondent the amount stipulated in
the substituted paragraph
62 of the award, within 10 days of receipt
of this judgement.
[4]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
C
Higgs of Higgs Attorneys
THIRD
RESPONDENT:
In
person
[1]
Bradfield et al, The Law of Contract in South Africa, 7
th
ed, 2016, Butterworths at 227.
[2]
Op cit
228.