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[2017] ZALCCT 19
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PSA obo Sehloho and Others v NCEDA (C63/15) [2017] ZALCCT 19 (4 May 2017)
Not
reportable
Of interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 63/15
In the
matter between:
PSA obo SEHLOHO & 2
OTHERS
Applicant
and
CEO: NCEDA
Respondent
Heard
:
16 February 2017
Delivered
:
4 May 2017
Summary:
Contractual claim for payment of benefits in terms of BCEA s 77(3).
Contracts of employment converted from
temporary to permanent
positions. Dispute whether benefits included in “total cost to
company” remuneration.
JUDGMENT
STEENKAMP
J
Introduction
[1] The
applicant is a trade union, the Public Servants Association of South
Africa. It represents three of its members, Mr Bernard
Mabele, Ms
Yoliswa Sehloho and Mr Denzil Kruger. All three are employed by the
Northern Cape Economic, Trade and Investment Promotion
Agency
(NCEDA). It is a provincial public entity. The respondent is the
Chief Executive Officer of NCEDA, cited in her representative
capacity.
[2]
The applicants claim certain
benefits arising from their contracts of employment in terms of ss
77(3) and 77A(e) of the Basic Conditions
of Employment Act.
[1]
They initially did so by way of application. The dispute was referred
to oral evidence.
Background
facts
[3] The
three employees were initially employed on fixed term contracts by
NCEDA. They accepted permanent employment at the end
of 2012. Mabele
and Sehloho were given letters of appointment, signed by the Acting
CEO (Ms T Masilo) dated 24 October 2012 and
effective from 1 November
2012. Kruger was given a letter dated 1 November 2012 and effective
from 1 January 2013.
[4] The
contracts of employment contain seemingly contradictory clauses. On
the one hand, they provide for the following benefits:
medical aid
assistance, home owner’s allowance, pension fund contributions
and a service bonus. On the other hand, the appointment
letters sent
to Mabele and Kruger refer to an “all inclusive” salary.
NCEDA argues that it means that all three were
employed on “total
cost to company” basis, including all benefits; the three
employees argue that the benefits are
payable over and above their
salaries.
The
evidence
[5]
Ms Yoliswa Lekhoathi (née
Sehloho)
[2]
received an appointment letter, signed by the Acting CEO (Ms Masilo)
on 24 October 2012. She was to be appointed as a Project Manager
:
Tourism in Kimberley with effect from 1 November 2012. It refers to a
“salary range” and continues to state: “Kindly
take
into cognizance that your appointment is subject to the terms and
conditions indicated in Annexure A.” (The same clause
appears
in the letters sent to Kruger and Mabele). And Annexure A
contains the following clauses:
“
7.
Medical Aid Assistance
7.1
An employee not belonging to a medical scheme shall be eligible for
the employer’s subsidy, which is 75% of the employer’s
membership fees, limited to the maximum employer’s subsidy of
R1 014 per month.
8.
Assistance with the payment of a housing allowance
8.1
Home owners
[
sic
]
allowance:
According
to the collective agreement signed in the PSCBC, i.e. PSCBC
Resolution 2 of 2004, the Home Owners Allowance Scheme has
been
repealed and replaced with the Housing Allowance.
The
Housing Allowance is a sum of money that the Employer pays every
month
in addition to an
employee’s salary
[3]
in order to assist him/her to pay for the rent or an instalment on
his / her home.
To
qualify for the Housing Allowance a few simple rules (requirements)
must be met.
9.
Pension Contributions
Your
compulsory contribution from your pensionable salary to the Employees
[
sic
] Pension Fund amounts to 7,5% from your date of
appointment. The Administration contributes at the rate of 13%.
10.
Service Bonus
A
service bonus equal to one month’s salary is payable on the
salary payment day of the month of his/her birthday.”
[6] NCEDA
has paid none of these benefits, other than pension contributions, to
Ms Sehloho or the other two applicants.
[7]
Although they initially instructed the PSA to withdraw their dispute
when they were under the impression that they would receive
the
listed benefits, they have reinstated it and the case is properly
before court.
[8] Under
cross examination Mr
Majenge
put it to the witness that the
benefits were included in their salaries on a “total cost to
company” basis. She disagreed,
saying that they were not
informed accordingly and that was not what her contract stated.
[9]
Tebogo Luse, the human resources manager, testified for NCEDA. He
reiterated that the intention was to pay the applicants, who
are
senior employees, on a “total cost to company” basis and
that they had to structure their own benefits, such as
pension and
housing.
[10]
Under cross examination Mr
Venter
pointed out to Luse that,
contrary to his opinion, the Public Service Act was not applicable to
the applicants. The letters of
appointment stated that they were
appointed “in terms of the Northern Cape Economic, Trade and
Investment Promotion Agency
Act, No 4 of 2008”.
Evaluation
/ Analysis
[11]
The first question is whether
two of the employees – Sehloho and Mabele -- had withdrawn the
dispute, as submitted by NCEDA.
But they made it clear that they had
instructed the PSA to reinstate it. And our courts accept that
litigants may reinstate a matter
that they had withdrawn.
[4]
For example, in
Kgobokoe v
CCMA
[5]
the Court held “that both the commissioner and the applicant
laboured under the mistaken belief that the matter was resolved
in
principle and thereby causing the commissioner to inadvertently
making undue pressure to bear on the applicant to sign.
It is
therefore my finding that the applicant did not sign the said notice
of withdrawal voluntarily.”
[12]
And in
Ncaphayi
v CCMA
[6]
Lagrange J held that the withdrawal of a matter at a stage when it is
ripe for hearing does not prevent the instruction of fresh
proceedings.
[13] In
any event, the PSA – that is, the applicant, acting on behalf
of its three members – has not withdrawn the dispute
before
this Court. I am satisfied that it is properly before court.
[14]
Turning to the merits, it seems to me on a plain reading of the
appointment letters that it is “subject to the terms
and
conditions indicated in Annexure A”. And that annexure, in
turn, spells out the benefits relating to medical aid, housing,
pension contributions and a service bonus. In the case of the housing
allowance, it further specifically adds that it is a sum
that the
employer pays “in addition to an employee’s salary”.
[15] The
employees say they were not told that these benefits would be
included in their salaries and that they needed to structure
their
own packages. The employer’s witness could not seriously
dispute it. And the employer’s version is incompatible
with its
own offer of employment, signed off by the Acting CEO.
[16] In
conclusion, I am satisfied that the three employees are entitled to
the benefits contained in clauses 7, 8, 9 and 10 in
Annexure A of
their contracts of employment; and that NCEDA is obliged to pay them
those benefits over and above their salaries.
[17] Both
parties asked for costs to follow the result. I see no need in law or
fairness to order otherwise.
Order
[18] I
therefore make the following order:
18.1
The respondent is in breach of the terms and conditions of employment
of the applicant’s members, Mr Bernard
Mabele, Ms Yoliswa
Sehloho and Mr Denzil Kruger.
18.2
The respondent is ordered to pay to each of these employees the
medical aid contributions, housing allowances,
pension contributions
and service bonuses stipulated in clauses 7, 8, 9 and 10 of Annexure
A to their contracts of employment for
the following periods:
18.2.1
Bernard Mabale : 1 November 2012 until the employment relationship
terminates;
18.2.2
Yoliswa Sehloho : 1 November 2012 until the employment relationship
terminates;
18.2.3
Denzil Kruger : 1 January 2013 to 20 June 2014.
18.3
The respondent is ordered to pay the applicant’s costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
P M Venter
Instructed by Adrie Hechter.
RESPONDENT:
Zenzile Q Majenge
Instructed by the State
Attorney, Kimberley.
[1]
Act 75 of
1997 (BCEA).
[2]
For the
sake of consistency I will refer to this applicant as Ms Sehloho –
that is the surname under which she brought the
application,
although she had adopted a married name at the time of the hearing.
[3]
My
underlining.
[4]
Wildlife and Environment
Society of South Africa v MEC for Economic Affairs, Environment and
Tourism, Eastern Cape Provincial
Government and Others
[2005] 3 All SA 389 (E); 2005 (6) SA 123 (E).
[5]
(2012) 33
ILJ
235
(LC).
[6]
(2011) 32
ILJ
402
(LC),