About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 438
|
|
Mahasha v BT Interior Dsgn (Pty) Ltd (J867/15) [2018] ZALCJHB 438 (8 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE
NO. J 867/15
In
the matter between:
PHILLIPINE
MATLOLE MAHASHA
Applicant
And
BT
INTERIOR DSGN (PTY) LTD
Respondent
(REG:
2014/012806/07)
(PREVIOUSLY
A CC WITH REG: 2008/022241/23)
AKA
BT GROUP
Heard:
24 May 2018
Delivered:
08 June 2018
Summary:
Entitlement to claim for damages under contract of employment subject
to probation not proved. Application dismissed.
JUDGMENT
BALOYI
AJ
Introduction
[1]
A claim for damages arising out of termination of contract of
employment forms the crux of the Applicant’s
case. The contract
was according to the Applicant terminated with a period of 31 months
remaining prior to its expiry date. The
Applicant has approached this
Court in pursuit of an order holding the Respondent liable for
payment of damages suffered equivalent
to the income she would have
earned had she worked throughout the contract period. Her claim was
crafted as follows in the notice
of motion:
“
1.
That the Respondent is in breach of its contract with the Applicant;
2.
That the Respondent is directed to pay the Applicant the equivalent
to 31 months’
salary amounting to R502 665.00;
3.
That the costs of this application be paid by the Respondent;
4.
Further and/or alternative relief.”
[2]
It is of high importance to state at this point that the Applicant
approached the Court by way of motion
proceedings, which application
was opposed and eventually set down for arguments. The matter was
removed from the motion Court
roll as per the order made by Van
Niekerk J coupled with direction to have it enrolled on the trial
roll. The parties proceeded
with filing of pre-trial minute as
directed and the papers filed took place of pleadings for purposes of
Rule 6 of the Rules of
the Labour Court.
[3]
The facts of the matter are clearly set out in the three sets of
affidavits which are by and large common
cause. In the pre-trial
minute the only two issues in dispute were captured as follows:
“
4.1.
It is in dispute whether or not the Applicant has recourse to acclaim
of damages after
the unfair dismissal dispute was settled at the
CCMA. (Sic)
4.2. It
is in dispute that the Applicant has suffered
damages
And, if so, what the
Quantum of the damages was.”
[4]
Consequently the Court is called upon to
determine
whether the Applicant has suffered damages and, if so, what the
quantum was for compensation in terms of section 77A (3
)
of the
Basic Conditions of Employment Act
[1]
(BCEA
).
It further deserves mention that soon after termination of the
employment relationship between the parties, the Applicant referred
an unfair dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA). The parties subsequently reached
settlement in terms of which the Respondent was to pay compensation
equivalent to two months’ remuneration to the Applicant.
The
Respondent complied with the agreement.
Factual
Background
[5]
The oral evidence coupled with what was already on record by way of
affidavits revealed that the employment contract
which is the subject
matter of these proceedings was entered into on 05 January 2015 and
was terminated on 08
February 2015. The Applicant was
appointed as a Vegetation Project Manager, the duties attached to the
position were primarily co-ordination
of projects related to the
control of vegetation in Eskom sites in Gauteng and technically to
other provinces where the Respondent
had dealings with Eskom. At the
time of termination of the contract, the Applicant and her team of
Horticulturists were undergoing
training on core operational
activities and familiarising themselves with relevant sites.
[6]
The Respondent invoked clause 1.2 of the contract of employment when
terminating the employment relationship
between itself and the
Applicant which reads as follows;
“
1.2
The EMPLOYEE is employed on a trial basis for the first 3 months of
employment to determine whether
the EMPLOYEE possesses the necessary
skills, personality and motivation to do the tasks for which he is
employed and whether the
EMPLOYEE complies with the operational
requirement for a fixed term position at the EMPLOYER. If after
the trial the EMPLOYEE
proves to the EMPLOYER that he complies with
the requirements, he will be appointed without any notice on a 33
months contract
with possible extension and rollovers.”
[7]
It was common cause that the clause made the fixed term employment
contract of the Applicant subject
to a three months’ probation
period. In the light of the settlement agreement reached at the CCMA
the Respondent maintained
that this Court lacks jurisdiction to
adjudicate on claim for damages based on the very same termination.
To put the relevant issues
to perspective, it is thus important to
place a look at the preamble of the settlement agreement entered into
between the parties
at the CCMA which reads as follows:
“
The undersigned
parties record the settlement of their dispute in the following
terms. By signing this agreement, the parties acknowledge
that the
agreement was read to them and interpreted (where necessary) and that
they understand the content hereof. This agreement
is in full and
final settlement of the dispute referred to the CCMA as well as in
full settlement of all statutory payments due
to the Applicant unless
specifically excluded in paragraph 4 of this agreement.”
[8]
In defending the termination the Respondent made some allegations of
misconduct against the Applicant
which did not form part of the
reasons contained in the letter of termination. The Respondent
further attempted to use WhatsApp
messages to demonstrate that the
Applicant secured employment with City of Tshwane based on her remark
that she was enjoying the
City of Tshwane. Effectively nothing came
out of this.
[9]
The Respondent in arguments persisted with its jurisdictional point
that the dispute had been disposed
of before the CCMA on full and
final basis. The Applicant’s only recourse was to bring an
application to set the settlement
agreement aside. In support of this
point Mr Tooka relied on
Goussard
v Impala Platinum Ltd
[2]
.
The Applicant as a party bearing onus has failed to place evidence
that had she been assessed at the end of the probation period,
her
employment was bound to be confirmed for a period of 31 months. Given
that she had received her January salary and further
payment
equivalent to two months’ remuneration, it should be accepted
that she had earned what was due to her in respect
of the probation
period.
[10]
The Applicant’s reaction to the point raised by the Respondent
was as argued by Mr klopper that the Applicant’s
finalized
unfair dismissal claim has no relation with the present claim which
is rested on the breach of contract. In support of
her arguments,
reliance was placed on
Johnson
& Johnson v Chemical Workers’ Industrial Union
[3]
and
again on
Fedlife
Assurance Ltd v Wolfaardt
[4]
.
Since the Respondent did not afford the Applicant an opportunity to
be assessed, termination of her contract before the end of
the
probation period coupled with its failure to proffer a cogent reason,
the Respondent should as such be found to be in breach
of the
contract. The Applicant should under the circumstances be awarded
damages as prayed for.
The Jurisdictional
Point.
[11]
The terms settlement agreement were completed on the CCMA
pro
forma
settlement agreement form. The insertion of the preamble referred to
above certainly demonstrates that the CCMA was at all material
times
alive to the fact that parties do have other remedies on whatever
dispute referred to it on the particular cause of action.
The
Respondent’s reliance on the
Goussard
decision cannot be supported as the reasons for a finding of lack of
jurisdiction were based on the pleading which happened to
have been
bad in law. In the matter in question the Applicant relegated the
Court to a one stop shop for a relief under Labour
Relations Act
[5]
(LRA) while asserting its rights under a common law breach of
contract.
[12]
In
Dial
Tech CC v Hudson and Another
[6]
the Court had in this respect this to say at paragraphs 63 and 64:
“
[
63]
Whilst the cause of action in both the constructive dismissal and the
sexual harassment cases may arise
from the same facts and
circumstances, their remedies are located in different statutes. The
remedies for constructive dismissal
and unfair discrimination are
found in the LRA and the EEA respectively.
[64]
In terms of the constructive dismissal, the matter is firstly, before
reaching arbitration or
adjudication, processed through conciliation
in terms of s 135 of the LRA. If conciliation fails the employee is
entitled to refer
the matter to arbitration under the auspices of the
CCMA or a bargaining council whichever is applicable. However,
dismissal disputes,
referred to conciliation in terms of s 187 of the
LRA, are adjudicated by the Labour Court if conciliation fails.”
[13]
This principle has undeniably been developing back from the time of
Fedlife
Assurance
[7]
.
I have no doubt that it is now a settled law in this regard. The
Labour Appeal Court had in
Gauteng
Shared Services Centre v Ditsamai
[8]
restated the position at paragraph 17 as follows:
[17]
When the relevant facts are set out thus, it is clear that the second
case brought by respondent
was predicated on an allegation of unfair
discrimination as set in 6 of the EEA. This dispute requires a
completely different determination
to that which confronted the
arbitrator, which turned on the fairness of an early termination of
the contract. In the case based
on the EEA, the court was required to
make a determination as to whether there had been unfair
discrimination in the refusal to
appoint the respondent to a
permanent position and the concomitant preferences given to other
applicants who were of a different
racial group.”
[14]
In this regard I do not wish to sit much on this point other than
saying that this Court has jurisdiction to deal
with the Applicant’s
claim for damages under the BCEA.
The
Applicant’s entitlement to damages.
[15]
The crux of this matter as pointed above is rested on this point and
further to what extent in terms of quantum.
In
South
African Football Association v Mangope
[9]
.
The Labour Appeal Court (LAC) unpacked what needs to be considered
when the Court is confronted with a claim of this nature, the
following was thus said in paragraphs 44 and 45:
“
[44]
The standard in
Myers
v
Abramson
intimates
that an employee will be entitled to his proven
actual
damages
reduced by collateral benefits and other justifiable deductions. In
an action for damages the onus of proving damages rests
on the
plaintiff. The mitigation rule requires the defendant to prove
that the amount claimed by the plaintiff does not represent
the true
amount because of a failure to take reasonable steps to mitigate; the
evidentiary burden shifts to that extent. There
remains nonetheless a
duty on a plaintiff to prove the value of the prospective loss of the
expectancy of income.
[45]
In accordance with general principle, a
plaintiff claiming damages for a prospective loss of future
salary
must adduce evidence enabling a fair approximation of the loss even
though it is of uncertain predictability and exactitude.
It is not
competent for a court to embark upon conjecture or guesswork in
assessing damages when there is inadequate factual basis
in evidence.
Moreover, allowance has to be made for the contingency or probability
that the anticipated future loss may not in
fact eventuate, at least
not in its entirety, because the dismissed employee may obtain
another job or source of income. There
should be evidence as to the
reasonable period it would take a person in the position of the
respondent to obtain analogous employment.
By similar token, any
amount awarded as damages for future loss has to be discounted to
current value. In other words, the value
of the expectancy of future
salary before and after the breach has to be determined in order to
quantify damages. Where it is highly
probable that the expectancy
would have been realized but for the breach, the value of the
expectancy will usually be the value
of the expected income (the
salary for the unexpired period) less amounts which reasonably might
be earned (potential collateral
and mitigated amounts), adjusted
firstly by a contingency for the possibility of the entire loss not
being realized, and discounted
in addition for the advantage of the
expectancy being accelerated or received earlier than it would have
been.”
[16]
Turning on to this matter, the Applicant’s case is rested on
two issues namely, the termination of her contract
on 08 February
2015 and that its termination before the end of probation period
constituted a breach of contract. Secondly as a
result of the breach,
the Respondent should be held liable for payment of damages to the
Applicant. Rightly or wrongly so, it is
not in dispute that the
termination was at the instances of the Respondent. Legally, the end
of the probation period brings about
one of the two results, that is,
the employee’s further employment is confirmed beyond the
probation period or not confirmed.
The pertinent question to be
addressed is what informed the Applicant’s claim for damages
equivalent to 31 months’
remuneration while the contract was
terminated before the end of probation period. The response to this
question can only be found
in the Applicant’s case that is her
ability to place evidence that she was bound to succeed in her
assessment at the end
of the probation period, to entitle her
confirmation of appointment for a period of 31 months.
[17]
Effectively the Applicant is faced with a task of establishing that
she was indeed a party to a contract that was
to run for 31 months
prior to canvassing its breach and the remedies. To this end and
based on what is placed before the Court
which is indeed and by and
large of common cause in this respect, the Applicant has not
attempted to demonstrate this as her case
was solely focused on the
last day of the 31 months period without any certainty about the
first. In essence it cannot be said
that the Applicant is entitled to
a claim for damages under a contract which its endurance was subject
to successful completion
of probation. This Court is siting with
absence of evidence to the effect that the Applicant would have
succeeded had the assessment
been undertaken.
[18]
As tapped from the LAC’s position in the
Mangope
case,
the Applicant if it was to be assumed that she had established a
contractual right, a mere averment that damages to be awarded
should
be equivalent to the remuneration she would have earned for the
period of 31 months, is lacking in terms of proof of such
damages. I
have taken note of Mr Klopper’s submission that the Court
should in determination of the amount of damages apply
its
discretion. No quantum was placed before this Court to represent her
past damages as well as future damages. The averments
that she had
secured a new job in March 2018 were not backed by any evidence as to
what extent does the new job mitigate the damages.
This is a stage
where nexus between the breach and the damages becomes of relevance.
[19]
Based on the above I am disinclined to accept that the Applicant has
made a case for the relief sought. The application
stands to fail in
this regard. I am of the view that this is not a matter which calls
for costs to be awarded against the unsuccessful
party as it will not
be within the requirements of law and fairness.
[20]
In the premises, the following order is made:
Order
1.
The Application is dismissed.
2.
There is no order as to costs.
___________________________
M M Baloyi
Acting Judge of the
Labour Court of South Africa
Appearances
:
For
the Applicant
:
Mr H Klopper of Henk Kloppers Attorneys
For
the Respondent: Mr L Tooka of MS Molebaloa Attorneys
[1]
Act
75 of 1997.
[2]
(2012) 33 ILJ 2898 (LC)
[3]
(1999)
20 ILJ 89 (LAC).
[4]
[2002]
2 ALL SA295 (A).
[5]
Act
66 of 1995 as amended.
[6]
(2007)
28 ILJ 1237 (LC).
[7]
Ibid.
[8]
(2012)
33 ILJ 348 (LAC).
[9]
(2013)
34 ILJ 311 (LAC).