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[2017] ZALCCT 40
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Green v Hartog (C88/2016) [2017] ZALCCT 40 (5 September 2017)
REPUBLIC
OF SOUTH AFRICA
Not reportable
Of interest to other
judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 88/2016
In
the matter between:
Johanna
GREEN
Applicant
and
Dr Frikkie
HARTOG
Respondent
Heard:
10-11 August 2017
Delivered:
5 September 2017
Summary:
Claim for automatically unfair dismissal because
of discrimination based on age. LRA s 187(1)(f). Employee agreed to
retire instead
of facing discipline. No dismissal. Claim dismissed
with costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Ms Johanna Green, worked for the respondent, Dr Frikkie
Hartog (an ophthalmologist) and his predecessor, Dr Paul
Burger, for
25 years. She left Dr Hartog’s employ in 2015. She says she was
dismissed because of her age and that it is an
automatically unfair
dismissal as contemplated in s 187(1)(f) of the Labour Relations
Act.
[1]
He says that they agreed
that she would retire (she was 56 at the time) as an alternative to
being disciplined for misconduct and
poor performance.
The
evidence
[2]
The two protagonists as well as another ophthalmic reception
assistant, Ms Karin Delport, testified at trial. Much of the evidence
prior to the events of 2015 is common cause.
[3]
Ms Green started working for Dr Burger as a receptionist in 1990. Dr
Hartog joined the practice in 2006. She signed a contract
of
employment with Dr Hartog on 24 October 2006. Her retirement age was
not specified.
[4]
Fast forward to September 2015, when a Department of Labour inspector
visited the practice. He advised Dr Hartog to amend certain
aspects
of his employees’ contracts.
[5]
It is common cause that Ms Green as well as Ms Delport and an
accounts clerk, Ms Annadia Nieuwland, signed amended contracts
of
employment on 9 October 2015. This contract differed from the 2006
contract in that it included clauses for family responsibility
leave
and retirement. The latter clause reads:
“
Die
aftree-ouderdom sal enige tyd na die vyf en vyftigste verjaardag
wees.”
[6]
It is also common cause that, at her insistence, Dr Hartog made three
changes to the draft that he had given Ms Green some days
before.
Those were to change her job description from “ontvangsdame”
to “oftalmiese ontvangs assistant”;
and to keep the dates
for salary payments as they were in the 2006 contract, i.e. the 23
rd
day of the month.
[7]
Where the parties part ways, is with regard to the draft that Green
had received. She says that the draft did not contain any
reference
to a retirement age. Hartog says that he gave all three employees
identical drafts (including the retirement clause)
and that none of
them had any objection.
[8]
The other difference lies in the circumstances of signing the
contract. Both Hartog and Delport say that the three employees
signed
in each other’s presence and countersigned each other’s
contracts as witnesses; Green denies this.
[9]
The next disputed event is that of 30 October 2015. Whilst it is
common cause that Dr Hartog called Ms Green in to discuss his
dissatisfaction with her work, what is disputed is what happened
after that.
[10]
Ms Green says that Dr Hartog simply handed her two envelopes. The one
contained a Canal Walk gift card for R 1000. The other
contained a
letter of termination that states:
“
Beste Johanna
Jy het ‘n lang
werksgeskiedenis met die praktyk en jou bydrae wat jy gelewer het oor
al die jare word baie waardeer. Jy het
egter aftree ouderdom bereik
en ek wil met die brief vir jou een maand kennis gee van
diensbeëindiging. Ek beoog om die afskeid
vir jou so gemaklik as
moontlik te maak.
Beste wense
Dr Frikkie Hartog.”
[11]
Dr Hartog agrees that he called Ms Green in. He discussed with her
his long standing disappointment with her work performance
and
frequent absenteeism. He suggested that it may be better for her to
retire rather than face a disciplinary process. Were she
to be
dismissed, she would not leave with a clean record; and were she to
retire, she would receive Unemployment Insurance and
tax benefits. He
would also pay her a month’s notice and a 13
th
cheque. She opted for retirement. As contemporaneous proof of that
version of events, Dr Hartog presented the Court with the alternative
letter that he presented to Ms Green. That letter states that he
would need to take disciplinary action and ask for her dismissal:
“
Geagte Johanna
Ten spyte van
herhaaldelike skrftelike waarskuwings sedert 2007 asook mediasie is
daar geen verbetering waargeneem in jou diens
aan die praktyk nie.
Daar is steeds onaanvaarbare gebreke en versuim om die basiese pligte
uit te voer. Verder is jou werksverhouding
met pasiënte en
personeel baie swak en lei steeds tot klagtes en stel die praktyk in
‘n baie swak lig. Jou versuiming
om enige regstellende aksies
te neem ten spyte van herhaalde versoeke noodsaak my om verhorende
aksie te neem en jou afdanking
te eis met een maand kennisgewing.
Die uwe
Dr Frikkie Hartog.”
[12]
She accepted the retirement option and they parted ways.
Evaluation
[13]
I shall
consider the parties’ conflicting versions regarding the
existence of an agreement to retire at the hand of the well-known
principles set out by Nienaber JA in
Stellenbosch
Farmers’ Winery
:
[2]
“
On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number
of peripheral
areas of dispute which may have a bearing on the probabilities.
The technique generally employed by courts
in resolving factual
disputes of this nature may conveniently be summarised as follows.
To come to a conclusion on the disputed
issues a court must make
findings on (a) the credibility of the various factual witnesses; (b)
their reliability; and (c)
the probabilities. As to (a),
the court’s finding on the credibility of a particular witness
will depend on its impression
about the veracity of the witness.
That in turn will depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii) his bias, latent
and blatant,
(iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf,
or with
established fact or with his own extracurial statements or
actions, (v) the probability or improbability of particular aspects
of his version, (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying about the same
incident
or events. As to (b), a witness’s reliability
will depend, apart from the factors mentioned under (a)(ii), (iv) and
(v) above, on (i) the opportunities he had to experience or observe
the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c)
the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one direction
and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the
latter.
But when all factors are equipoised probabilities prevail.”
[14]
At the outset, I must note that Green’s denial that she signed
the 9 October 2015 contract in the presence of the other
two
employees is highly improbable. It appears from the face of all three
contracts that they were all signed on the same day;
and more
importantly, that Delport and Nieuwland signed her contract as
witnesses. That lends more credence to the version of Dr
Hartog and
Ms Delport that they all signed the amended contracts at the same
time in each other’s presence.
[15]
That, in turn, casts doubt on the veracity of her evidence as a
whole; as does her refusal to accept that she had a long history
of
unsatisfactory work performance.
[16]
Even if Ms Green was not aware of the retirement age in the final
version of the contract because she did not see it before
signing the
contact, she is bound by it on an application of the
caveat
subscriptor
rule and the doctrine of quasi-mutual assent.
[17]
Her case was that the respondent dishonestly inserted a
retirement age into the contract she signed. She was thus labouring
under the mistaken impression that the contract she signed contained
no retirement age.
[18]
In
George v Fairmead (Pty) Ltd
[3]
the then Appellate Division said:
‘
When can an error
be said to be
justus
for the purpose of entitling a man to
repudiate his apparent assent to a contractual term? As I read the
decisions, our Courts,
in applying the test, have taken into account
the fact that there is another party involved and have considered his
position. They
have, in effect, said: Has the first party - the one
who is trying to resile - been to blame in the sense that by his
conduct he
has led the other party, as a reasonable man, to believe
that he was binding himself? ... If his mistake is due to a
misrepresentation,
whether innocent or fraudulent, by the other
party, then, of course, it is the second party who is to blame, and
the first party
is not bound.’
[19]
And in
Hartley
v Pyramid Freight (Pty) Ltd t/a Sun Couriers
[4]
the Supreme Court of Appeal held that the appropriate question to ask
is not whether the person seeking to rely on the contested
clause (A)
knew or ought to have known that the person seeking to escape
liability (B) was unaware of that clause. Rather, the
question is
whether A knew or ought to have known that B was labouring under a
mistake.
[20]
The
evidence led in this matter does not support a conclusion that Dr
Hartog made any misrepresentation to Ms Green nor does it
show that
he knew or reasonably ought to have known that she was labouring
under a mistake. It is common cause that she signed
the final version
of the contract and initialled it on every page. She therefore
expressly indicated her acceptance of the terms
on each page. Our
courts have made it clear that a person will not escape the
consequences of her signature if they have not read
the document in
question. One is expected to read what one signs. In
Matshabe
v Sobi
[5]
the court held that:
‘
One is expected to
read before one signs. I know of no other safer and wiser way
of familiarising oneself with contractual
obligations whose binding
legal force and effect can only be activated and unleashed through an
act of signing a contractual document.
One who signs a
contractual document without or before reading it does so at his own
peril. One who is able to read is expected
to read before
signing.’
[21]
Even if Ms Green was not given an opportunity to consider the final
version of the contract before 9 October 2015 she was given
such an
opportunity on 9 October. Ms Delport and Dr Hartog testified that the
employees were asked prior to signing whether they
were satisfied
with the contract or whether they required changes. No further
changes were requested. In those circumstances, he
was reasonably
entitled to accept that she was aware of and agreed to the retirement
age in the final version of the contract.
[22]
Ms Green testified that on 9 October 2015 she was simply presented
with a contract while she was busy and told to sign it.
That version
cannot be accepted in the face of the evidence of Hartog and Delport,
whose evidence in that regard was not undermined
in cross
examination.
[23]
Ms Green was obviously someone who read contracts before signing
them. That was clear from the fact that she requested that
the
contract be changed before signing the final version. She knew that
she was signing a contract and knew that it contained a
change or
changes. She thus signed the final version of the contract of
employment knowing full well that it contained a retirement
age. And
even if she didn’t read it properly, she was bound by the
retirement age clause by virtue of the principle of
caveat
subscriptor
read with the doctrine of quasi-mutual assent.
[24]
That then leads to the question of the reason for Dr Hartog calling
Ms Green in on 30 September and the question whether she
was
dismissed.
[25]
Dr Hartog testified at some length about the problems had had with Ms
Green’s work, corroborated by contemporaneous documentary
evidence.
[26]
Reams of complaints and warnings were put to Ms Green in
cross-examination and elaborated upon by Dr Hartog in chief. Starting
from 2006, Green was given at least five warnings for unprofessional
conduct, neglecting her duties, poor and aggressive communication
with patients, and failure to carry out routine tasks. Eventually he
asked a mediator, Mr Graeme Bloch, to assist. He met with
Dr Hartog
as well as Ms Green and Ms Smith on 27 March 2015. Hartog explained
that numerous reprimands and warnings had fallen
on deaf ears; Green
and Smith refused to accept responsibility. The mediator tried to
stress that it would be in everyone’s
interests to sort out
their differences; at the same time, he made it clear that continued
behavioural problems on the part of
the employees and their continued
refusal to carry out their duties would lead to discipline and could
lead to dismissal.
[27]
Following the mediation, Dr Hartog kept a detailed log of further
problems. From May to October 2015 he logged no fewer than
38
complaints about Ms Green’s performance and her failure to
carry out instructions. That culminated in the meeting of 30
October
2015.
[28]
Apart from two warnings to which she had responded, Ms Green simply
denied any allegations of misconduct. I find it highly
improbable
that Dr Hartog, out of some strange vindictive motive, would simply
make up non-existent allegations and confront her
with those for no
reason whatsoever.
The
events of 30 October 2015
[29]
Given the history outlined above, Dr Hartog’s version of events
on 30 October 2015 is more probable than that of Ms Green.
He called
her in to admonish her, once again, about her misconduct and poor
performance. But he gave her a choice: either she could
submit to a
disciplinary process (in which he would call for her dismissal); or
he would give her the option to retire. She chose
the latter. In
order to believe her version, the Court would have to believe that Dr
Hartog fabricated the letter dealing with
the “disciplinary
option” with no option to ever present it to her; and that he
told her that she had to retire out
of the blue. Furthermore, he
would have had to conceal the retirement clause in her revised
contract of employment by some subterfuge;
this despite the fact that
she not only signed the contract, having acknowledged that she had
read, but initialled every page,
including the one containing the
retirement age. And her credibility is further undermined by her
version that she did not sign
the agreement together with the other
employees, weighed against the clear evidence to the contrary of Dr
Hartog and that of Ms
Delport (an unaffected third party).
Conclusion
[30]
On a balance of probabilities, I find that Ms Green was not
dismissed, but that she agreed to retire rather than face
disciplinary
action. In the absence of any dismissal at all, the
question of an automatically unfair dismissal does not arise.
[31]
Both parties asked for costs to follow the result. I see no reason in
law or fairness to disagree.
Order
The
claim is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Yaaseen Abass
Instructed
by
Parker
attorneys.
RESPONDENT:
Craig Bosch
Instructed
by
Teresa
Erasmus.
[1]
Act
66 of 1995 (the LRA).
[2]
Stellenbosch
Farmers’ Winery Group Ltd v Martell et cie
2003
(1) SA 11
(SCA) par 5.
[3]
1958 (2) SA 465
(A) at 471.
[4]
2007 (2) SA 599
(SCA) at para 9.
[5]
[2015] ZAFSHC 210
(5 November 2015) par 24. See also
Langeveld
v Union Finance Holdings (Pty) Ltd
2007 (4) SA 572
(WLD) at para 12.