About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2017
>>
[2017] ZALCD 13
|
|
Imiolo v Reproplast (Pty) Ltd and Others (D455/15) [2017] ZALCD 13 (19 May 2017)
Links to summary
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D 455/15
In the
matter between
KRZYSTOF IMIOLO
Applicant
and
REPROPLAST (PTY) LTD
First Respondent
PREMJITH JUGDEO
N.O
Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
Third Respondent
Heard:
10 May 2017
Delivered:
19 May 2017
JUDGMENT
SALOOJEE,
AJ:
Introduction
[1] This
is an application to review and set aside a Certificate of Outcome at
conciliation and to substitute the conciliating commissioner’s
insertion that the dispute was resolved on 5 February 2015 with an
insertion that the dispute remains unresolved. The applicant
also
seeks leave to refer the dispute to the CCMA for arbitration.
Background
[2] The
first respondent (“
employer”
) employed the
applicant as a factory manager from 1 October 2012.
[3]
During November 2014, the employer contemplated dismissals for
operational reasons. The applicant was informed that his post
would
become redundant and the parties entered into negotiations.
[4] On 8
December 2014, the parties concluded a written agreement settling the
applicant’s dismissal for operational reasons
(“
the
settlement agreement”
).
[5] The
settlement agreement deals with the applicant’s dismissal,
severance pay and the standard clauses relating to the
agreement
being the sole agreement, variation, waiver and the agreement being
in full and final settlement of the disputes between
the parties.
[6] The
applicant then became aware that other positions became available for
which he would have been suited on the same day (8
December 2014)
contacted a company that assists employees with labour disputes to
refer an unfair dismissal dispute to the CCMA.
The next month the
applicant terminated his mandate with this company.
[7] On 8
January 2015, the applicant referred an unfair dismissal dispute with
the MEIBC. The employer has admitted that it is registered
under the
auspices of the MEIBC.
[8] The
applicant claims that he did not know that the representatives he
engaged in December 2014 referred a dispute to the CCMA
and that the
matter was set down for conciliation. As a result, the applicant did
not attend conciliation.
[9] At
conciliation, the employer’s representatives produced the
settlement agreement and the conciliating commissioner was
satisfied
that the dispute was settled. Hence, the Certificate of Outcome
reflects an insertion that the dispute is resolved.
[10] At
the MEIBC, the employer did not attend conciliation and the dispute
was referred to arbitration. At arbitration, the employer
successfully raised three preliminary points that; the MEIBC does not
have jurisdiction over the dispute, the matter was
res judicata
and that the matter was settled.
The
grounds of review
[11] The
applicant’s grounds of review are not easily ascertainable from
the founding affidavit. The applicant’s complaints
that can
broadly constitute grounds of review are:
1.
The employer did not act in good faith in
concluding the settlement
agreement by misleading and misrepresenting to the applicant the true
state of the employer’s affairs.
2.
The settlement agreement does not deprive
the applicant of the right
to refer a procedurally unfair dispute to the CCMA.
3.
The conciliating commissioner misdirected
himself in accepting the
settlement agreement as proof of the fairness of the applicant’s
dismissal.
Analysis
[12] The
applicant seeks to review and set aside a Certificate of Outcome at
conciliation.
[13] In
Bombardier Transportation (Pty) Ltd v Mtiya N.O. & others
[2010] 8 BLLR 840
LC
(confirmed in BMW South Africa v NUMSA
obo members
[2012] 3 BLLR 274
(LAC)) the ground to review a
Certificate of Outcome is confined to jurisdiction. There is no
jurisdictional point raised in the
affidavit and the Certificate of
Outcome cannot be reviewed.
[14]
Further, the applicant’s first complaint is based on
contractual principles, more particularly, the applicant’s
reasons for resiling from the settlement agreement. The CCMA cannot
determine this issue and this review should fail.
[15] The
applicant’s other grounds of review relate to the fairness of
the applicant’s dismissal. It was stated in
Hunter
v Reillys Attorneys
[1995]
1 BLLR 29
(IC)
that:
“
Suffice
it to say that, at the end of the day, I am quite satisfied that the
termination of applicant’s employment with respondent,
was, as
respondent contends, the result not of a retrenchment, but of a valid
and binding agreement.
What then
are the consequences which attach to such a finding? Implicit in
respondent’s case is the contention that where,
as here, the
employment relationship is terminated by reason of a valid and
binding agreement to that effect there can be no question
of such
termination giving rise to any unfair labour practice. I agree with
this contention. As much is apparent not only from
the application of
ordinary principles of both law and equity, but, also, from the
judgment of Van Niekerk SM in Dawson v
AFI Manufacturing (Pty)
Ltd (1994) 5 (3) SALLR 33 (IC) in which the learned senior
member declined to find a retrenchment
unfair in circumstances where
the whole issue of such retrenchment had been settled by agreement
between the employer and the retrenchee.
On the other hand, the
position might well be different where the agreement to terminate the
employment relationship is itself
patently unfair or tainted with
illegality. In that event, this Court would give no effect thereto
(cf G Kammies v Golden Arrow
Bus Services, unreported, NHK 11/2/2354,
especially at para 7.5, again a judgment of Van Niekerk SM) and the
fairness or otherwise
of the termination of the employment
relationship would have to be assessed afresh.”
[16] The
settlement agreement is valid and binding until set aside. Clauses 1
and 2 of the settlement agreement record the applicant’s
dismissal in terms of the agreement.
[17] The
applicant’s complaints that he was mislead into concluding the
settlement agreement are unconvincing as the applicant
has not
alleged that he was qualified or experienced for any of the posts
made available by the employer.
[18]
There is no patent unfairness or illegality and the applicant’s
other grounds of review also fail.
Order:
[19] In
the premises the following order is made:
1.
The application is dismissed.
2.
Each party to pay their own costs.
________________
Y.F
Saloojee
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant:
A.P Van Der Westhuizen of Pool Gaffoor, Parasram & Associates
Heads of
argument drafted by: Adv. A.J
Boyle
Instructed
by:
Beker Attorneys