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[2017] ZALCCT 66
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Conradie v Vaal University of Technology (C226/16) [2017] ZALCCT 66 (6 December 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 226/16
In
the matter between:
Pieter
Wynand CONRADIE
Applicant
and
VAAL
UNIVERSITY OF
TECHNOLOGY
Respondent
Heard
:
18 October 2017
Delivered:
6 December 2017
SUMMARY:
BCEA s 77(3) – Claim for damages
for breach of employment contract.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Dr Pieter Conradie, claims damages from the respondent,
the Vaal University of Technology, based on a breach of his
employment contract. It is based on s 77(3) of the Basic Conditions
of Employment Act.
[1]
[2]
I informed the parties that I would hand down judgment on 21 November
2017. They requested that it be delayed for two weeks
while they
pursued settlement discussions. It is for that reason that the
judgment is only being handed down on 6 December 2017.
Background
facts
[3]
Dr Conradie was a lecturer in the University’s Information and
Communication Technology Department. In January 2015 he
was
potentially exposed to the Human Immunodefiency Virus (HIV) after an
accident. He sought medical treatment in the form of Post-Exposure
Prophylaxis (PEP) and was put on Anti-Retroviral (ARV) treatment. He
was put on sick leave from 28 January to 7 February 2015.
He returned
to work at the VUT campus in Vanderbijlpark (Gauteng) on 9 and 10
February but his physical and mental state was deteriorating.
He
applied for and was granted annual leave for the period 11 February
to 6 March 2015. He handed over his supervisory duties to
a colleague
and went to his parental home in Worcester (Western Cape) to
recuperate.
[4]
While in Worcester Dr Conradie’s condition did not improve. He
applied for three months’ unpaid leave. The University
would be
closed during July. He anticipated returning to work on 1 August
2015. He did not receive any formal response to his request
for
unpaid leave but the University continued to pay his salary for March
and April 2015.
[5]
At the end of July 2015 a representative of the University telephoned
Dr Conradie in Worcester and asked for his telefax number.
On 3
August 2015 he received a “pension payout form” by fax.
He was puzzled as he had not resigned, nor had he been
dismissed. He
started to recover. Between 11 August 2015 and 8 February 2016 he
sent ten letters to the University, requesting
the Vice Chancellor,
Prof Dzvimbo, and the Principal, Prof Mothlana, to confirm when he
should return to work. He also provided
the University with his
cellular phone number. He did not receive any response. And in its
answering affidavit, the University
does not deny that Professors
Dzvimbo and Mothlana received all ten letters.
[6]
Having received no response to any of his letters the employee was at
a loss to know whether his services had been terminated,
and if so,
when. He eventually launched this application.
[7]
The University responds in its answering affidavit that it had sent a
fax to the employee on 18 September 2015 asking him to
return to work
on 21 September 2015. But he never received the fax.
[8]
The University also relies on a notice to attend a disciplinary
hearing dated 21 October 2015. That letter, it alleges, was
sent to
fax number *6918215200233475569. But he never received it. In fact,
the transmission report attached to the letter and
to the
University’s answering affidavit shows quite clearly: “Failed”.
Yet the University did not follow up and
try to contact Dr Conradie
telephonically. Instead, it went ahead with the hearing in his
absence – without contacting him
again - on 29 October 2015.
(This despite having phoned him in July 2015 to fax –
successfully – a pension withdrawal
notification to him). It
dismissed him on 10 November 2015.
[9]
The University also says that it delivered the letter to Dr
Conradie’s home address; but that address is not the one in
Worcester that is reflected in his contract of employment. And, as Dr
Conradie points out, the University knew that he was recuperating
at
home in Worcester – its representative phoned him there to
ascertain that he had received the earlier letter including
the
pension payout form.
[10]
The University says that it faxed a dismissal letter to the employee
on 10 December 2015 (although it is dated 20 November
2015). He says
he did not receive that letter either.
[11]
Having received no response to any of his letters, Dr Conradie
referred two disputes to the CCMA on 8 February and 9 March
2016, but
he was unable to stipulate any date of dismissal. He eventually
launched this application on 16 May 2016, having abandoned
the CCMA
referrals.
Relief
sought
[12]
Dr Conradie
seeks payment of his monthly salary for the period 1 September 2015 –
the date from which he tendered his services
to return to work –
until 10 November 2015 – the date of his dismissal.
[2]
[13]
He also seeks payment of his outstanding leave pay and three months’
notice pay, being the notice period stipulated in
his contract of
employment.
[14]
Initially, he also sought an order directing the University to
provide him with a certificate of service – something
that it
had not done, four months after his dismissal. When the matter was
heard a year later, Dr Conradie informed the Court that
he did
eventually obtain the standard form UI 19 certificate from the
Department of Labour seven months later. That prayer has
thus become
moot.
Evaluation
[15]
The claim
is one concerning a contract of employment, as contemplated by s
77(3) of the BCEA. As the LAC pointed out in
South
African Football Association v Mangope
[3]
, a case where the employee sued SAFA in the Labour Court by way of
application proceedings for damages and an order declaring
the
appellant’s decision to terminate his contract of employment
unlawful and in breach of contract:
“
The application
was made in terms of section 77(3) of the Basic Conditions of
Employment Act (“the BCEA”), which
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. Section
77A(e) of the BCEA empowers the
Labour Court to make a determination that it considers reasonable on
any matter concerning a contract
of employment in terms of section
77(3), which determination may include an order for specific
performance, an award of damages
or an award of compensation. With
the introduction of these provisions the Labour Court acquired
jurisdiction to determine issues
related not only to the fairness of
a dismissal but also whether a dismissal is a wrongful repudiation in
breach of contract.
Where it determines that such a breach has
occurred it may make any determination that it considers reasonable,
and is thus not
restricted to the common law remedies of specific
performance or damages.”
[16]
In
Mangope
, the LAC held that the decision of the employer to
terminate the employee’s contract was in breach of contract and
unlawful,
and it ordered damages. That is the main relief that Dr
Conradie seeks in this case.
[17]
Mr
Lecoge
, for the University, argued that it cannot be held
liable for breach of the employment contract: in fact, Dr Conradie
repudiated
the contract by deserting his workplace without informing
the University of his whereabouts.
[18]
The difficulty with this submission is that the University must have
been aware of his whereabouts: it telephoned him twice
in Worcester
and sent him the “pension payout form” to the fax number
in Worcester that he provided. His home address
as indicated on the
first page of his contract of employment is also the address in
Worcester.
[19]
The
employee, on the other hand, sent the Vice Chancellor and the
Principal at least ten letters inquiring when he should return
to
work. It is so, as Mr
Lecoge
submitted, that there is a reciprocal obligation on an employee to
tender his services;
[4]
but in
this case, Dr Conradie did tender his services – albeit not by
reporting at work in person (1500 km away from where
he was
recuperating), but by addressing ten letters to his employer,
tendering his services, and inquiring when he should report.
Yet the
University never responded.
[20]
The
University relies on a “letter of abscondment” that it
sent to the employee on 18 September 2015 by fax. He says
he did not
receive it. On the probabilities – even taking into account
that this application was brought in motion proceedings
on affidavit,
and applying the rule in
Plascon-Evans
[5]
-- it is unlikely that Dr Conradie received the University’s
fax of 18 September 2015, given that he continued to seek clarity
from the University when he should return to work.
[21]
The same considerations apply to the notice of the disciplinary
hearing that the University alleges it sent to the employee
on 21
October 2015. Given his earlier attempts to ascertain from the
University when he should report for duty, it is highly improbable
that he would simply have ignored such a notice (had a received it)
and that he would not have attended a disciplinary hearing
that might
well have – as it did – resulted in his dismissal. And in
any event, the University’s own transmission
report puts it
beyond doubt that the fax was not successfully transmitted.
[22]
The applicant is entitled to damages equivalent to his salary for the
period from the time that he tendered his services (1
September 2015)
until his date of dismissal (10 November 2015).
[23]
He also claimed three months’ notice pay; but he was summarily
dismissed. He is not entitled to notice pay in terms of
his contract
of employment, that deals with termination on notice.
[24]
Neither can the applicant’s claim for outstanding leave pay
succeed. By the time he was dismissed, he had exhausted his
leave
entitlement.
Conclusion
[25]
The applicant is entitled to damages for breach of contract,
equivalent to the period 1 September to 10 November 2015, in other
words two months and ten days. Calculated on his monthly remuneration
of R23 345, 83, that is equivalent to (R23 345, 83 x 2 +
R7 781, 94)
= R 54 473, 60.
[26]
As Dr Conradie represented himself, he is not entitled to legal
costs.
Order
The respondent, Vaal
University of Technology, is ordered to pay the applicant, Dr Pieter
Wynand Conradie, damages in the amount
of R 54 473, 60 within 30 days
of this order, together with interest thereon from date of judgment
to date of payment.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In person.
RESPONDENT:
M B Lecoge
Instructed
by
O’Connell
attorneys (Randburg).
[1]
Act
75 of 1997 (the BCEA).
[2]
He
initially claimed damages for the period until 10 December 2015 –
the date when he became aware of his dismissal –
but conceded
in argument that the actual date of dismissal was the relevant date.
[3]
(2013)
34
ILJ
311
(LAC) par 2.
[4]
Cf
Council
for Scientific and Industrial Research v Fijen
(1996) 17
ILJ
18 (A).
[5]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd