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[2018] ZALCD 25
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Hiralal v Shell and BP South African Petroleum Refineries (Pty) Ltd (D1117/16) [2018] ZALCD 25 (9 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Reportable
Case
Number: D1117/16
In
the matter between:
HIRALAL,
ROSHINI
Applicant
And
SHELL
AND BP SOUTH
AFRICAN
Respondent
PETROLEUM
REFINERIES (PTY) LTD
Heard:
16 July 2018
Delivered:
9 October 2018
Summary:
Section 77 (3) of the BCEA claim – after resignation of
employee attempt was made to resuscitate relations- which
severance
package is discussed – bonus conditions to be met –
counter claim – main claim unsuccessful –
counter-claim
upheld.
JUDGMENT
CELE
J
Introduction
[1]
In casu
,
the applicant relies on section 77(3) of the Basic Conditions of
Employment Act
[1]
as she seeks
payment from the respondent on the basis of a contractual claim for
damages which includes payment in relation to:
1.1. remuneration and
leave accrual for the months of March and April 2016;
1.2. payment of a
Voluntary Severance Package (“
VSP”
), in terms of
the relevant policy;
1.3. payment of a
Variable Pay Package (“
VPP”
) in terms of the
relevant policy.
[2]
The respondent opposed the claim and filed a counter claim seeking
payment of the outstanding balance from a student loan extended
by
the respondent to the applicant during the currency of her employment
with the respondent. The applicant admitted her indebtedness
for the
student loan and sought to set this amount off the main claim she
filed.
Factual
Background
[3]
On or about 1 December 1989 the applicant and respondent concluded a
written contract of employment with
inter alia
the material
express, alternatively implied further alternatively
tacit
terms that the applicant would be subject to the rules, regulations
and other practices of the respondent.
[4]
As on 29 February 2016, the applicant held the post of Business
Improvement Coordinator (Acting Business Improvement Manager)
and her
gross cost to company was R79 158.00 per month. In addition to such
remuneration, the applicant stood to earn an annual
bonus termed
‘
variable pay’
upon the fulfilment of certain
criteria.
[5]
On 11 July 2000 the respondent, through the introduction of a written
‘
Team Brief’
, provided for the payment of
voluntary severance payments to certain classes of employees with
inter alia
, the following material express terms:
5.1 the opportunity for
employees to apply, by close of business on 30 September 2000, for
enhanced packages in order that the respondent
might address its
staffing requirements, both operationally and in terms of its
Employment Equity commitment.
5.2 eligible employees
could expect to receive the following package:
5.2.1 up to twenty (20)
years' of service would be recognised on the basis of awarding a
month's pensionable salary per year of
service.
5.2.2 in addition, years
of service over the age of forty (40) would accrue a severance
payment of seventy-five percent (75%) of
a month's pensionable salary
up to a maximum of six (6) months' pensionable salary with a cap of
twenty-four (24)
months'
pensionable salary applying to the combined amounts.
[6]
Subsequent to 30 September 2000 this basis for the calculation of
certain voluntary separation packages was applied.
[7]
On 22 February 2016, the applicant handed in a letter of resignation
dated 17 February 2016 to take effect on 29 February 2016.
At
approximately 14h30 on 22 February 2016, the applicant's direct
manager, Mr Rodney Youldon came to see her about her resignation
and
to enquire as to whether there were any alternatives that could be
explored in order to get her to stay, such as a change to
her line
manager, alternatively the pursuance of a grievance. The applicant
declined and Mr Youldon indicated that he would revert
as to whether
Human Resources would accept her short notice. Her short notice was
accepted.
[8]
On 24 February 2016 the applicant met with the Managing Director, Mr
Ton Wielers, in his office where he sought clarity on the
applicant's
reasons for her resignation and whether there was anything the
respondent could do to change her mind. On the same
day the applicant
received feedback from both Mr Youldon and her former direct manager,
who was retired but on contract with the
company on another job, Mr
Eddie Chettiar that Mr Wielers was prepared to appoint the applicant
permanently to her post, after
the completion of the recertification
audit which she was heading up and which was due for completion by 22
April 2016.
[9]
The audit pertains to the ISO 9001: 2008 (Quality) and ISO 14001:2004
(Environment) certifications that the respondent was then
holding but
which were required to be revaluated in their entirety every three
years to ensure compliance with the relevant codes.
Such standards
were designed to address a company's commitment to achieving quality
products and by-products with minimum possible
harm to the
environment. The exercise was conducted by the international
certification body, Det Norske Veritas (“
DNV”
),
and took place over a five-day period where a team of three to four
auditors audited all the respondent's processes. Preparation
before
the audit involved an intensive process over a six-month period,
where a team, led by the applicant, had to prepare the
site. The
planning of the audit schedule and logistics associated thereto was
one of the applicant's deliverables. Should the company
fail such an
audit then the certificates would be withdrawn and this would result
in
significant
reputational harm to the respondent.
[10]
On 25 February 2016, the applicant met with Mr Wielers where her
possible ongoing employment with the respondent was discussed.
Should
the applicant be incapable of being persuaded to remain in the
respondent's employ then the question of her remaining for
purposes
of delivering a timeous and successful audit in return for an extra
payment was discussed. On the following day the applicant
advised Mr
Youldon that she had agreed to remain for purposes of completion of
the audit. Mr Youldon supported her decision and
offered the
applicant the opportunity to sit with Mr Andrew McKay, Human
Resources (HR) Operations Manager, over queries by the
applicant
about her post-retirement medical aid. The applicant was happy for
Messrs Youldon and McKay to discuss this and to calculate
an offer to
be emailed to her for consideration over the weekend.
[11]
At approximately 20H00 on 26 February 2016 the applicant received a
call from Mr Youldon who advised her that due to the unavailability
of Ms Lindiwe Khuzwayo, the Head of HR and Mr Wielers being out of
the country, he sought a meeting with the applicant on 29 February
2016, which she agreed to. On 29 February 2016, Mr Youldon offered to
the applicant an arrangement in terms of which she would
continue in
the respondent's employ until the end of April 2016 and a bonus
payment equal to three months' pay, over and above
her usual
remuneration, would be paid to her at the end of that period on
condition that she deliver a successful audit.
[12]
The applicant rejected Mr Youldon's offer. She requested that she be
released from her employ with the respondent in terms
of her original
resignation, which request Mr Youldon agreed to. The applicant
further addressed an email to Mr Wielers but received
no response
thereto.
[13]
The applicant owed the respondent the amount of R 120 434.30
(one hundred and twenty thousand four hundred and thirty-four
Rand
and thirty cents) in respect of the outstanding balance on
interest-free tertiary education loans granted and paid to her
by the
respondent.
[14]
The calculation should the applicant be entitled to ‘
variable
pay
’ is accepted as R 56 993.00 (fifty-six thousand
nine hundred and ninety-three Rand) and similarly and should the
applicant
be entitled to payment as provided for in terms of the
‘
separation formula’
, the applicant will be
entitled to payment in the sum of R 1 429 584.00 (one
million four hundred and twenty-nine thousand
five hundred and
eighty-four Rand). The increase which the applicant would have been
afforded were she to be in the employ of the
respondent as at 1 March
2016 amounts to 6.7% (six-point seven percent).
Evidence
led
[15]
I am indebted to Mr Nel, counsel for the Applicant, for an excellent
outline of the summary of evidence led by both parties
during trial.
The summary, which I shall adopt, includes quotations from the
transcribed record. Mr Haslop, counsel for the Respondent,
similarly
agreed with that summary.
Applicant’s
version
[16]
In support of her version, the applicant ,Ms Roshini Hiralal, was the
only witness called for the applicant’s case. She
testified
that in March 2015 she was asked to take over the total
responsibilities and accountabilities for the business employment
manager in an acting position, being previously appointed in the
position of business employment co-ordinator, i.e. the position
reporting directly to the business employment manager. She was
earmarked to take over the position upon the retirement of Mr
Chettiar
through a process of succession planning. Mr Chettiar and
the applicant during the preceding year, around October to December
2014
already discussed the merger of the positions held by him and
her.
[17]
The respondent was to have met with the applicant on 21 April 2015 in
order to assess her efficiency within the position but
due to an
explosion at the respondent’s plant on 17 April 2015 the
meeting never occurred and matters remained in limbo.
Mr Youldon
thereafter met with the applicant during June where he indicated that
the position was no longer being considered but
no indication could
be given to the applicant as to what her future would entail and the
applicant continued doing the work she
was doing in her acting role.
[18]
The applicant had a further meeting with Mr Youldon in October 2015
which meeting was preceded by the permanent appointment
of a fellow
employee who was also in an acting position. The appointment
followed without it being advertised and the applicant
raised issue
with the appointment and unhappiness with the uncertainty pertaining
to her position. The applicant however
stressed to Mr Youldon
that despite being a preferred candidate she did not expect any
favours and Mr Youldon confirmed that he
would follow a correct
procedure and stressed that the applicant was in an unenviable
position having been left in limbo for an
extended period of time.
[19]
During November 2015 Mr Sandile Nxumalo the third person who was also
in an acting position was also permanently employed and
the applicant
again approached Mr Youldon and expressed her need for clarity going
into the New Year. When the applicant
could not obtain a
definitive answer the applicant inquired into the possibility of a
“stretch” or increase on her
remuneration. As the
applicant was at the highest remuneration scale applicable to her
level within the respondent, the applicant
enquired whether she could
be placed at a slightly higher level, that is, 4A level. Mr
Youldon indicated that the respondent
is no longer utilising the 4A
level and the applicant took issue with the said statement as she
contended that Mr Donovan Govender
was just appointed to the said
level. Mr Youldon indicated that he would revert to the
applicant;
[20]
Mr Youldon and the applicant again met in January 2016 in order to
discuss the applicant’s deliverables associated with
the
combined position and when the applicant again sought certainty as to
her position Mr Youldon could still not provide any clarity
and
stated that ‘…
it’s a sad, sad situation and
nobody would like to be you. I fully understand where you come from
and I’m hoping to
resolve it but at this stage I don’t
have an answer for you…
’. Mr Youldon and the
applicant had a similar discussion on 15 February 2016 but again
without any certainty provided and
the applicant directly subsequent
to the meeting sent an email to Mr Youldon seeking a definitive
answer; alluding that if she
was not good enough for the said
position, she was willing to revert to her previous position. On the
following day Mr Youldon
contacted the applicant and provided her
with three (3) pre-conditions prior to the respondent being able to
consider the appointment
of the applicant to a 4A level.
[21]
The applicant considered the three (3) pre-conditions to be
unreasonable and she handed in her resignation letter. She elected
to
resign as she could not deal with the stress any longer and did not
want to go through a grievance process which she saw merely
as a
repetition of the process she has been going through. At the time of
her resignation the applicant just took out the student
loan through
the respondent for her daughter and had not been looking for
alternative employment. Mr Youldon contacted the applicant
approximately six hours after receipt of the applicant’s letter
of resignation that is, on 22 February 2016, and stated to
the
applicant that he spoke to Mr Wielers and that Mr Wielers suggested
that a “promotion” be offered to the applicant.
Mr
Youldon in turn advised Wielers that he was of the view that it was
no longer about the “promotion” anymore.
Something
which the applicant in evidence confirmed; stating that she felt that
the trust relationship had been destroyed and that
she just wanted to
leave. On 23 February 2016, the respondent advised the applicant that
it was willing to afford the applicant
a two weeks resignation notice
period as requested by her.
[22]
On 24 February 2016 Mr Wielers’ secretary asked the applicant
to meet with Mr Wielers and they met later on the day where
Mr
Wielers indicated that he wanted to understand how a member of the
respondent’s family could, after twenty-seven years,
just want
to leave. The applicant repeated the history which gave rise to
her resignation and Mr Wielers asked if she would
prefer a different
line manager to which the applicant responded that the issue was not
with her line manager but with the failure
to make a decision.
The meeting was ended off with Mr Wielers asking the applicant to
reconsider and denoting concern with
the upcoming audit, which fell
partly under the scope of the applicant’s duties.
[23]
Shortly thereafter Mr Chettiar met with the applicant and indicated
to the applicant that Mr Wielers was willing to appoint
the applicant
to a level 3, to which the applicant stated that it was too late for
that. Mr Chettiar however asked the applicant
to meet again
with Mr Wielers. The applicant again met with Mr Wielers on 25
February 2016 and commenced by stating that she has
heard that Mr
Wielers was willing to place her on a level 3 but that she was not
willing to accept the appointment as it would
appear to have been the
result of her resignation and not in consequence of her performance.
Mr Wielers then enquired from the
applicant if she was so aggrieved
that she was willing to walk away and the applicant confirmed the
same. The discussion
then turned towards the audit and Mr
Wielers expressed concern regarding the audit as the applicant was
responsible for it.
Mr Wielers asked if she was willing to stay
on to complete the audit and the applicant stated that she had
twenty-seven years’
service with the respondent and was 53
years old and would be open to a possible package. The
applicant stated to Mr Wielers
that he could think about her
proposal. Mr Wielers then stated that ‘…
, I’m
the only site manager and I am happy to do that.”
He put
his hand out and said: “
let’s shake on this
agreement
.” So, and he repeated, “
you will stay to
help us with the audit, to see it through and at the end of April I
will pay out a severance package
.” And he said “
there’s
just one thing”
and I asked “
what is that
.”
He said “
there’s just one thing I want from you and
I’m pretty confident I will get it”
and I said “
what
is it”
. He says “
I want you for the two months
that you are here, I want you to find it in your heart to, to have,
have a change of um, mind and
I would like you to consider,
reconsider…
”.
[24]
Directly after the meeting the applicant informed her sub-ordinate to
stop stressing as she would be at the respondent for
the audit. The
following morning the applicant met with Mr Youldon who confirmed
that he spoke to Mr Wielers and that Mr Wielers
had agreed to provide
the applicant with a severance package.
[2]
The applicant requested Mr Youldon to confirm the severance package
in writing and to take her post-retirement medical aid into
account.
Mr Youldon offered that the applicant was to meet with Mr Andrew
McKay to go through the calculations and the applicant
stated that it
would not be necessary. The applicant surmised the
purpose of the request to be.
‘
All he needed
to do was to send me the calculation. Basically, it was formulising
the arrangement Ton and I had. That is what the
offer was. Not the
offer about tabulating, basically confirming this is the agreement,
this is what it’s going to work out
to come end of April.
’
[25]
The applicant bore knowledge of four (4) individuals within the
respondent who has been afforded VSPs as per the policy.
[3]
On 26 February 2016, the applicant sent an email reminder to Mr
Youldon and still later Mr Youldon reverted to the applicant
informing
her that he wanted to send her an email but Mr Wielers was
out of the country and the human resources manager was not
available.
Mr Youldon requested to meet with the applicant on
29 February 2016. The meeting between Mr Youldon, Ms Khuzwayo and the
applicant
took place on 29 February 2016 around 12h30 and the
contents of the meeting are surmised in the following terms in the
testimony
of the applicant:
‘
[RODNEY stated
that] …we’re here to convince you to stay and uh, the
uh, our first prize is to get you to stay and
uh, should you stay uh,
we would uh, and if you close off this three items that we spoke
about the other day we will give you a
job with 4A and for your help
on delivering a successful audit uh, we will give you a two to three
months uh, bonus. So, and I
turned to him and I said but that’s
not, that’s not what we spoke about. Sorry, that’s not
what uh, what Ton
and I agreed to. Ms KHUZWAYO said no, what Ton um,
what Ton meant was uh, Ton was saying he would give you a bonus pay
out on successful
completion of the audit. He did not mean a
severance package. So, I looked at Rodney and I said but Rodney, when
I came to you
on Friday morning your words to me was that Ton told
you that he was going to give me a VSP as per policy. And now you are
telling
me something completely different. And he uh, Rodney did not
look at me, he sat looking at the documents that was put in front of
him and he said no, that’s what Ton meant…’
[26]
The meeting was ended with the applicant requesting the respondent to
process her resignation paperwork. The applicant shortly
thereafter
at 13h57 settled and sent an email to Mr Wielers, which read:
‘…
I agreed
to stay on to see the site through the audit till the end of April,
and thereafter I would get a severance package as per
policy.
To this we had an agreement and we shook hands on it. Today
Rodney and Khuzwayo met with me to table the following:
1. You (Ton) agreed to
give me a bonus payout for 2/3 months should I stay till end April.
2. Or should I choose to
stay on permanently a jg4A would take place if I delivered the SITEms
actions and see the audit through.
This was not the
agreement that you and I had, so unfortunately I will need to
terminate my services based on my letter dated 17th
February 2016.’
[27]
The applicant remained at her office till approximately 16h30 in the
hope of receiving a response from Mr Wielers as Mr Wielers
read her
email at 14h09, but received no response and then left the employ of
the respondent.
The
Respondent’s version
[28]
The respondent called and led the evidence of 3 witnesses. These are
Messrs Rodney Youldon, Ton Wielers and Andrew McKay. Their
evidence
follows.
1.
Mr Rodney Youldon
[29]
Mr Youldon was the commercial manager at the respondent and the
immediate lime manager of the applicant at times material to
this
matter and when she tendered her resignation on 22 February 2016. Mr
Youldon was not happy with the resignation of the applicant
but it
was not totally unexpected as he was aware of the applicant’s
‘unhappiness’. After receipt of her resignation
he
discussed it with Mr Wielers who in turn asked Mr Youldon to attempt
to persuade the applicant to withdraw her resignation.
Mr
Youldon met with the applicant on 23 February 2016 but was unable to
persuade the applicant to withdraw her resignation as she
indicated
that she would not even look at a promotion to job grade 3 at that
point in time anymore.
[30]
Mr Youldon reverted to Mr Wielers to this effect when Mr Wielers in
turn, indicated that he wanted to speak to the applicant
and that
took place on 24 February 2016. After the said meeting Mr Wielers
informed Mr Youldon that during the meeting he enquired
from the
applicant as to what it would take for the applicant to withdraw her
resignation. Another meeting ensued between the applicant
and Mr
Wielers on 25 February 2016 where after Mr Wielers telephoned Mr
Youldon informing him that:
‘…
he had,
he had met again with Roshini and they had, they had come to some
agreement um, for, for encouraging her to stay on at SAPREF.
That she
had agreed she would stay on till the end of April um, for, for a
package. Some form of package which um, I was to explore…’.
[31]
The telephone call was approximately 15 minutes and centred on the
applicant, though different options for packages were not
discussed
during the call. Mr Youldon understood the feedback from Mr Wielers
to be that ‘…
they had some agreement in principle.
Um, I was concerned that uh, that this agreement wasn’t signed
and sealed’
and he ‘…
recall Ton did say
what he was offering needed to be within policy
’. Mr
Youldon understood policy to mean the VSP policy and could not recall
any other policy which could be relevant.
Mr Youldon’s
‘…
personal
feeling was one of surprise. I was surprised that they had come some
agreement. Um, that, that he had managed to persuade
Roshini to take
[Unclear], that she had agreed to stay on to the end of April, which
is what I understood. Um, I was pleased, I
was, I was somewhat
relieved that I would have that support through the period of the
audit because that was a personal concern
of mine. How would, how
would I manage this company through the audit, so I was relieved and
I was happy at that stage for that
same reasons’.
[32]
Mr Youldon had a short meeting with the applicant on 26 February 2017
where he stated that he understood that Mr Wielers and
the applicant
had a meeting and that the applicant agreed to stay on till the end
of April 2016 and that there was a package to
be determined.
The applicant further had some queries regarding post-retirement
medical aid and Mr Youldon thereafter asked
Mr McKay to do some
calculations around the VSP. Mr Youldon was not one hundred percent
sure as to why he was looking at VSP and
recorded that:
‘
It may have been
some words that Ton had used, it may have been my own presumption
that when you talk about a package this is a,
the package which may
be considered. The context for that uh, is that I had previously used
a similar package for another member
of my staff that we had made an
offer to. Um, so maybe that was in my mind’.
[33]
Mr Youldon received the calculations back from Mr McKay on the same
day and noted with concern that the amounts were very large
and as
such contacted Mr Wielers and asked him if he had the said ‘numbers’
in mind and Mr Wielers in turn indicated
that he did not. During the
course of the day Mr Youldon and Ms Khuzwayo looked at alternative
packages which could be offered
and Mr Youldon contacted the
applicant and indicated to her that he would not be able to meet with
her on the day and that he would
meet with her on Monday 29 February
2016. Mr Youldon and Ms Khuzwayo met with the applicant on 29
February 2016 and conveyed to
her an offer which was aimed at
retaining the applicant and which would provide her with a three (3)
months’ bonus upon completion
of the audit as well as an
immediate ‘promotion’ to a job level 4A.
[34]
Mr Youldon held the personal view that it was unlikely that the
applicant would have accepted the offer. The applicant was
upset and
informed Mr Youldon that the offer was not the agreement reached with
Mr Wielers and that as such she was no longer willing
to stay on with
the respondent.
2.
Mr Ton Wielers
[35]
Mr Wielers is the managing director of the respondent employed since
February 2014. He was told of the applicant’s resignation
by Mr
Youldon during the week of 22 February 2016 and was surprised and
shocked to learn of the applicant’s resignation.
The initial
discussion between Mr Wielers and the applicant centred on an attempt
to ascertain why the applicant resigned.
Mr Wielers
wanted to know what it would take for the applicant to stay on with
the respondent but the meeting ended without a resolution.
During the
second meeting on 25 February 2016, Mr Wielers and the applicant
discussed the possible promotion of the applicant and
the possibility
of creating space around the audit, being options considered for
further discussion during that meeting. Mr Wielers
indicated that it
was possible that the applicant might have mentioned the possible
severance during the meeting. He contended
that a financial
incentive to finalise the audit was discussed but did not discuss
severance from his side and the agreement was
for the parties to
explore what it would take for the applicant to remain with the
respondent. He was not aware of the written
VSP policy at the time of
the meeting but, was aware of the existence of a VSP policy within
the respondent and has previously
offered VSP to other employees of
the respondent.
[36]
Mr Wielers had a telephone discussion with Mr Youldon later on that
day, after his meeting with the applicant, and indicated
to Mr
Youldon that the applicant has indicated that she would be open to
options regarding staying on. Mr Youldon sought some specifics
regarding a possible offer and asked if the respondent should look
into severance and Mr Wielers agreed that Mr Youldon was to
look at
severance as an option. The offer eventually made to the applicant
was of two to three months’ salary on successful
completion of
the audit and a promotion. Mr Wielers conceded that he did not
respond to the email send to him by the applicant
on 29 February
2016.
3.
Mr Andrew McKay
[37]
Mr McKay was employed as the respondent’s human resources
operations manager and has been with the respondent for 31
years. He
was not aware of any instance where a person has resigned and
received a severance payment in terms of the VSP as the
VSP is
applied to situations where employees are still in the employ of the
respondent at the time of the VSP offer. The VSP policy
has not been
used in relation to all retrenchments. The VSP was implemented by Mr
McKay as a staff retention method, providing
that staff be employed
at the respondent as at 1 March of any specific year. The document
denoting the VPP was part of an approved
board presentation but was
never introduced as a physical policy. The qualification and value of
the VPP was determined on the
performance of the respondent and the
employee for the preceding years.
Submissions
of the parties.
[38]
Mr Nel appearing for the applicant contended that probabilities
favoured the acceptance of the version of the applicant. In
terms of
that version, the outcome of the two meetings held by the applicant
and Mr Wielers was that an agreement was reached in
terms of which
she would continue working for the respondent until 30 April 2016 and
would consequently receive two months’
salary, leave pay for
that two months, severance pay in terms of the VSP and payment in
terms of the VPP. The respondent would
remain entitled to the
repayment of the study loan. The respondent breached the terms of
that agreement and had to pay the damages
consequent thereupon.
[39]
Mr Haslop appearing for the respondent argued that, looking at the
probabilities more closely, the obvious improbability in
the
applicant’s version was that, according to her, Mr Wielers
offered her almost R1.5 million if she left in circumstances
where it
was common cause that the respondent reiterating the fact that it
hoped she would change her mind and stay. It was
much more
probable that the respondent intended to pay her a bonus, which was
the offer she was waiting to consider over the weekend,
in return for
staying until the end of the audit and was hoping that, by buying
this extra time, it would be able to change her
mind completely and
persuade her to withdraw her resignation altogether.
[40]
He contended that the agreement reached by the parties was of the
payment of the severance pay in terms of the BCEA. He said
that the
VPS was a specific provision applicable only for a limited period as
stated in the VSP document, that the terms of the
VSP were unknown to
Mr Wielers at the time and so he could not agree to something he was
ignorant of. According to this submission,
the calculation of the
applicant of her damages in the letter of demand conformed to the
BCEA calculation. He said that for the
applicant to qualify for the
variable pay, she had to be, but was not an employee of the
respondent as on 1 March 2016. Accordingly
the main claim had to be
dismissed and the counter-claim sustained.
Evaluation
[41] Both parties are
agreed that the evidence led during the trial of this matter is
constituted by irreconcilable versions and
that the well-known
technique to be employed in resolving such factual dispute is one
outlined in
Stellenbosch
Farmers Winery v Martell et cie
.
[4]
When it comes to the closer look at the decisive evidence led, I am
not convinced that the evidence led is mutually destructive.
[42]
When the applicant and Mr Wielers shook hands on the way forward,
both agree in their evidence that the respondent was to pay
the
applicant
severance
package
[5]
(my emphasis) when she departed at the end of April 2016. Nowhere in
her evidence does the applicant allege that Mr Wielers made
any
specific reference to the VSP. To this extent the parties’
evidence is accordingly not contradictory.
[43]
The real dispute between the parties is about what each understood by
the
severance package
. This is a matter of interpretation more
than it is about a dispute of facts. The applicant understood the
term to refer to a
severance package
as envisaged in the VSP
document of 2000. Mr Wielers was not yet specific of the meaning but
aligned himself along a
severance package
as in terms of the
BCEA by rejecting a calculation made in line with the VSP. Mr
Youldon, having spoken to the applicant and to
Mr Wielers realised
this problem between the two.
[44]
The applicant bears the onus to prove her version on a balance of
probabilities. She has admitted her indebtedness to the respondent
for a study loan which constitutes the cause of action on the
counter-claim.
[45]
When the applicant testified in chief she did not say anything about
a SAPREF voluntary package, which is significantly different
from
BCEA package. Nor did she say it was to be a week per year or “VSP
as per policy” either. Under cross-examination
she said “a
severance package”. She alleged that, “There is
only one severance package at SAPREF”.
That is not true. The
uncontradicted evidence of Mr McKay was that, when SAPREF retrenched
employees, it paid their severance packages
according to the BCEA.
The applicant conceded that the BCEA package requirement is also “a
severance package”, which
it clearly is. The applicant’s
evidence was that she told Mr Wielers that she would be “open
to a possible package”.
A severance package without details
surely simply means the payment of money when one leaves employment.
In the absence of clear
terms of the agreement of the parties, it
cannot be said that they reached an agreement or were of the same
mind on what was to
be paid to the applicant upon her working until
the end of April 2016.
[46]
This was a material term of the agreement. It must be remembered that
this was an employee who had taken a decision to walk
away from her
employment with nothing, had she not been approached to work for an
extended period. The request for her to stay
longer, if successful,
would have been a new intervening act to her resignation, as the
clock for her departure was already ticking.
It was not successful
and she left in terms of her resignation notice.
The
VSP document
[47]
On 11 July 2000 the then Managing Director (MD) of the respondent, Mr
Craig Glashan released, for the information of all the
respondent’s
staff, a letter headed: “General letter of invitation for
voluntary separation.” The letter served
as an open invitation
to staff to apply for a voluntary separation in that year, that is,
2000. The aim was to maintain certain
work standards by reducing
staff compliment in specific departments. A formal invitation letter
with a reply slip was issued to
identify staff, who if interested in
taking up voluntary separation, would indicate such in the reply slip
on or before 30 September
2000. Should it be operationally feasible
to release the applicant employee, the company would discuss the
matter with that employee
and then address a formal letter directly
to that employee, setting out the date of separation and details of
separation terms.
Receipt of the letter signed by the Departmental
Head was the only indication of acceptance to the voluntary
separation. Still,
the applicant employee had to formally accept the
terms of separation.
[48]
It remained common cause between the parties that none of the
prescribed consecutive steps were followed in this matter by
the
applicant and the company, except a discussion and some purported
verbal agreement. Clearly the VSP was designed for a specific
period
and purpose. It was conceded by the respondent that certain employees
were accorded the VSP sometime after 30 September
2000 but that their
cases were different from that of the applicant. None had resigned.
It was never suggested by the applicant
that she fell into a category
similarly to that of the four or any employee in respect of whom the
VSP was applied. A reliance
on the severance package as meaning the
VSP of 2000 had clearly therefore to be based on a specific agreement
by the parties, which
is not the case here. Mr Wielers said that he
had never seen the September 2000 document, nor did he have an idea
how much a severance
package might be if based on the September 2000
document.
The
variable pay package (VPP)
[49]
The applicant has also claimed payment in terms of the variable pay
package in the sum of R56 993.00. Here, the annual
performance
results are used together with individual performance information for
the purpose of calculating and paying individual
performance bonuses
at senior levels. This additional payment is made in March of each
year. It has a specific formula used to
calculate payment. Bonuses
are to be paid prorated for individual employees who have part of a
year’s service and who are
in service as on 1 March of the
year.
[50]
The applicant was initially not clear on whether she was aware of the
1 March requirement in relation to the payment of variable
pay. She
ultimately admitted under cross-examination that Mr Youldon told her
that leaving before 1 March would disqualify her
on this claim.
Therefore, she was aware of the requirement but was not prepared to
say so when asked by her own representative
during the trial.
It was only when it was put to her that Mr Youldon had specifically
reminded her of the requirement that
she conceded it. In addition,
the parties agreed, in the pre-trial minute, that, “
should
the applicant be incapable of being persuaded to remain in the
respondent’s employ then the question of her remaining
for
purposes of delivering a timeous and successful audit in return for
an extra payment was discussed
” at the second meeting
between the applicant and Mr Wielers. In her evidence, the applicant
denied that a successful audit
was discussed.
[51]
Mr McKay gave evidence that, in order to qualify for the variable pay
bonus, an employee who was not being retrenched was obliged
to be in
service on 1 March of a year. He indicated that one of the
purposes of variable pay was to encouraged the retention
of
employees, in other words to encourage employees to continue their
employment with the respondent. There is nothing unusual
about this
concept. A number of employers require employees to be in service
when bonuses are paid out. It was the evidence of
the applicant that
payment was normally made later in March. The respondent merely
requires the employee to be employed by it on
1 March of a year. The
condition about having to be in employment on 1 March so as to
qualify has been well communicated and consistently
applied.
[52]
Here, the issue is about whether there is a contractual obligation on
the respondent to pay the variable pay bonus. The applicant’s
representative has argued about the reasonableness of the policy, but
that is not what this is about. This is not a debate on
reasonableness. Nor is it an unfair labour practice dispute
concerning benefits. It’s about whether or not the applicant
qualifies for the bonus.
[53]
The applicant left the employment of the respondent on 29 February
2016 and was therefore no longer its employee on 1 March
2016. She
therefore did not meet the set requirements for the variable pay.
[54]
These are civil court proceedings therefore costs in this matter
shall follow the results.
Order:
1. The claim of the
applicant is dismissed.
2. The counter claim of
the respondent to the amount of R120 434, 30 is upheld. (No
evidence was led on how this payment was
to be made.)
3. The applicant is
ordered to pay the costs hereof.
________
Cele
J.
Judge
of the Labour Court of South Africa.
APPEARANCES:
1.
For the Applicant: Mr A J Nel
Instructed
by Dean Caro and Associates
2.
For the Respondent: Mr Haslop
Instructed
by Woodhead Bigby Incorporate.
[1]
Act Number 75 of 1997, herein after referred to as the BCEA.
[2]
The
applicant understood this to refer to a VSP.
[3]
Reflected on pages 18 and 19 of the combined bundle.
[4]
2003 (1) SA 11 (SCA).
[5]
Page
20 lines 16 – 21 and page 41 lines 9 – 10 of the
transcript.