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[2017] ZALCCT 11
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Du Preez v South African Local Government Bargaining Council (SALGBC) and Others (C147/15) [2017] ZALCCT 11 (29 March 2017)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT CAPE TOWN
C
ase
No: C 147/15
In
the matter between:
J I DU PREEZ
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL (‘SALGBC’)
First
Respondent
COMMISSIONER I
BOTHA (
N.O.
)
Second Respondent
EDEN DISTRICT
MUNICIPALITY
Third Respondent
Heard
:
23 March 2017
Delivered
:
29 March 2017
Summary:
(Review – jurisdictional ruling –
employment status – employment subject to suspensive condition
– suspensive
condition incapable of being invoked to withdraw
offer of employment which had been accepted even if it could be
invoked to terminate
employment – employment relationship
established)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant seeks to review a
jurisdictional ruling by the second respondent in which she held he
was not an employee.
[2]
In essence, the applicant had applied for a
job as a buyer in October 2013. On the application form he signed an
undertaking which
read:
“
I
hereby declare that the information given on this form is true and
correct. I accept that,
in the event of
my application been successful
,
any
information to the contrary will lead to immediate dismissal
.
(emphasis
added)
[3]
The applicant attended interviews and was
found to be the most suitable candidate and was made an offer of
employment on 16
th
September 2014. He was asked to indicate by 23 September 2014 whether
he accepted the offer of employment and to indicate when
he could
start. The substantive portion of the letter of 16 September read:
“
RE:
OFFER OF EMPLOYMENT: BUYER (GEORGE)
Your job interview dated
11 September 2014 regarding the above refers.
An
offer of employment as buyer in George is hereby formally offered and
once you have accepted the offer, a formal employment contract
specifying all the terms and conditions of employment will be entered
into
.
Your remuneration package
is based on a grade 4 municipality which is currently 14611.12 per
annum (1
st
notch) of a TASK grade 9 salary.
Please
indicate in
writing
before or on Tuesday, 23 September 2014 at 12 H00 AM of
your acceptance/non-acceptance of the offer of employment
. If
you accept our job offer you can please indicate on which date you
can start. Please sign the letter at the bottom and send
it back to
me.
...
pp GW LOUW
MUNICIPAL MANAGER”
(emphasis
added)
The
applicant indicated at the foot of the letter that he accepted the
offer and that he could start on 13 October 2014.
[4]
However on 10 October 2014, before he
started working and before he concluded that written employment
contract, he was asked to
submit proof of the references in his
previously submitted employment history because it did not correspond
with certain details
of his job title. He was also asked to provide
the reason a previous employment had been terminated. It subsequently
transpired
that he had not been employed as the Head of Supply Chain
Management in George Hospital, as represented on his application, but
as an administrative officer. Further, his previous termination was
the result of his dismissal and not a labour dispute as he
claimed.
He was asked to submit proof of his references within seven days of
the letter which also stated:
“
Failure
to submit the requested documents will unfortunately lead to the
withdrawal [of] the initial job offer.”
[5]
In a subsequent letter dated 28
th
October 2014 headed “WITHDRAWN: OFFER OF EMPLOYMENT: BUYER
(GEORGE)”, the municipal manager confirmed that details
received from George Hospital confirmed the discrepancies in the
details he had provided. The letter then continued:
“
The
application form you signed on 22 October 2013 was as follows: ‘
I
hereby declare that the information given on this form is true and
correct. I accept that, in the event of my application being
successful, any information to the contrary will lead to immediate
dismissal.’
Due
to your dishonesty the job offer is hereby finally withdrawn.”
[6]
Although
the arbitrator considered a number of other features of the evidence,
including several concessions made by the applicant
about his
employment status, the determination of employment status and
dismissal is an objective determination and the reasonableness
of the
arbitrator’s ruling is not the issue in a review of a
jurisdictional ruling.
[1]
The
only issue is whether the ruling is correct.
[7]
While
it is true that recognising the existence of an employment
relationship might not always depend on the conclusion of a contract
recognised at common law as valid and enforceable
[2]
,
in this instance the applicant argues that his employment status was
confirmed when he signed the letter of 16 September accepting
the
offer of employment. In other words the applicant considers that the
employment relationship was established in the conventional
manner by
his acceptance of the offer. The municipality in essence agrees that
the employment relationship was based on a contractual
agreement, but
the agreement that the applicant would be employed contained a
suspensive condition which allowed it to withdraw
the offer of
employment before he started working if undertakings he had made
about the information he provided in his job application
turned out
to be incorrect.
[8]
On a consideration of the evidence, I am
satisfied that the applicant’s employment was subject to a
suspensive condition in
terms of which, if was established that
information given in his application was not accurate, the employer
was entitled to terminate
his employment even if he had been
employed. Of course, that would still mean that he was employed
before the contract was terminated.
However, the municipality’s
letter of 28 October did not purport to terminate his employment but
to withdraw the offer of
employment. The question then arises is
whether the offer of employment itself was subject to a suspensive
condition, which would
permit the municipality to withdraw the offer
of employment even after it had been accepted by the applicant.
[9]
It is certainly an appealing argument that
because the contract itself could be terminated after its conclusion
if representations
made by the applicant turned out to be inaccurate
then,
a fortiori
,
the municipality was also entitled to withdraw the offer itself
before the applicant had started work and signed the formal contract.
Intitially, I was inclined to adopt this approach but the sequence of
events and the wording of the suspensive condition make this
approach
untenable for the reasons below.
[10]
The difficulty this argument presents is
that, the offer was not withdrawn before the applicant had formally
accepted it and it
would appear that in invoking the suspensive
condition contained in the application form, the municipality could
only have done
so on the basis that the applicant had been employed
as a buyer. That provision clearly envisaged a situation where the
application
for employment had been successful and the applicant had
consequently been employed. I have little doubt on the facts as they
appear
that the municipality would have been contractually entitled
to invoke the suspensive condition but that contractual entitlement
was the right to terminate an appointment which had already been
made. In my view, it would be an artificial reading of the factual
situation to suggest that the parties had not agreed on the
applicant’s appointment and that the termination in terms of
the suspensive condition was the termination of an appointment not
the withdrawal of a still pending offer of employment. It would
also
be an interpretation of the suspensive condition which the language
of that provision would have to be severely strained to
sustain.
[11]
I am mindful of the point made by the
arbitrator that the applicant made a number of concessions which do
suggest that he believed
that the municipality was entitled to
“withdraw the offer of employment” even if he had
accepted it. However, these
concessions for the most part were
obviously ones that could not bind the arbitrator in the
interpretation of the plain language
of the provision in question and
necessarily entail accepting the legal opinion of the applicant on
such matters.
[12]
In
the circumstances, I am inclined to agree with the applicant that it
was his employment which was terminated, even though he
had not
started to render services. The Labour Appeal Court has held that
common sense, justice and the values of the Constitution
would be
best served by extending the literal construction of the definition
of an employee in section 213 of the to include someone
who had
concluded a contract of employment which would commence at a future
date.
[3]
[13]
In the circumstances, it is difficult to
avoid the conclusion that when the municipality purportedly withdrew
the offer of employment
it was in fact terminating an existing
employment relationship and therefore dismissing the applicant as an
employee in accordance
with the suspensive condition he had agreed to
in his job application. Consequently, I must set aside the
jurisdictional ruling
of the arbitrator and remit the matter back to
determine the fairness of the applicant’s dismissal.
[14]
It may well be that the applicant’s
success in this review application will be something of a pyrrhic
victory in the context
of establishing his overall prospects of
proving an unfair dismissal, given some of the evidence given in the
jurisdictional hearing,
but that is a matter for the second stage of
the arbitration process which may now take place.
Order
[15]
The jurisdictional ruling of the second
respondent issued on 22 February 2015 is reviewed and set aside and
substituted with a finding
that the applicant was an employee of the
third respondent and accordingly the
in
limine
point is dismissed.
[16]
The applicant’s unfair dismissal case
is remitted back to the first respondent for a hearing on the merits
of its case before
an arbitrator other than the second respondent.
[17]
The third respondent must pay the
applicant’s costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D
M Nyathi instructed by Francois Van Zyl
Attorneys
c/o Emarie Scheepers
THIRD
RESPONDENT:
L
W Ackermann instructed by Villiers Inc.
(George)
[1]
See
Fidelity
Cash Management Service v Commission E for Conciliation, Mediation &
Arbitration & others
(2008) 29 ILJ 964 (LAC) at 996.
[2]
See e.g
White
v Pan Palladium SA (Pty) Ltd
2005 (6) SA 384
at 391 A-C
[3]
Wyeth
SA (Pty) Ltd v Manqele & others
(
2005)
26 ILJ 749 (
LAC
)
at 764, para [45].