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[2019] ZALCJHB 7
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Pansegrouw v Rendeals Four Consulting (Pty) Ltd (JS539/17) [2019] ZALCJHB 7; [2019] 6 BLLR 572 (LC) (23 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 539/17
In
the matter between:
JOHANNES
PIETER
PANSEGROUW Applicant
And
RENDEALS
FOUR CONSULTING (PTY)
LTD
Respondent
Heard:
19 November 2018
Delivered:
23 January 2019
Summary:
Special Plea
JUDGMENT
MABASO,
AJ
Introduction:
[1]
There was an employment relationship between
JOHANNES PIETER PANSEGROUW (the applicant) and RENDEALS FOUR
CONSULTING (PTY) LTD (the
respondent) which was terminated by notice
in July 2016 based on operational requirements. Applicant has cause
to institute a civil
claim against the respondent claiming
“contractual notice pay”, “contractual vehicle
expenses”, and “contractual
leave pay”. The
respondent delivered a statement of response incorporated therein a
twofold plea in abatement, namely
res
judicata/Compromise
and lack of jurisdiction.
Res
judicata/Compromise
[2]
In the statement of case, the applicant avers
that the respondent is in breach of the employment agreement that was
entered into
by the parties in that the respondent made payments of
four weeks' notice pay whereas contractually it is obliged to make a
payment
equivalent to eight weeks’ notice pay. Therefore he
claims the difference. In respect of contractual leave pay the
applicant
states that on termination of the employment agreement the
respondent will make payment to him in respect of accrued annual
leave,
however, it subtracted seventeen (17) annual leave days
accrued by the applicant as the applicant did not take leave at the
relevant
time. Therefore, he suffered damages for the "non-payment
of non-statutory, contractual leave”.
[3]
The respondent contends that the
contractual notice pay and contractual leave claims
cannot be adjudicated in this court because:
“
2. A validly
executed CCMA settlement agreement was executed between the parties
on 23 January 2017.
3.
Clause 3.2 of the agreement referred to supra set out, “the
amount in paragraph 3.1. is
inclusive of all statutory payments
due to the applicant unless
specifically excluded in terms of
paragraph 4 below
4. The parties to the
settlement agreement did not exclude any statutory payments in clause
4 of the CCMA settlement agreement.
5.
It
is submitted as a result of the above issues dealing with outstanding
notice and if pay have become settled
and are as a result res judicata.”
(Own
emphasis)
[4]
These kinds of special pleas are pleas in bar as their nature is to
destroy the cause of action.
[5]
A party relying on special pleas of this nature has an onus to prove
the allegations relied upon. Compromise involves a waiver
of existing
rights, for example in an employment relationship when parties decide
to terminate such agreement they enter into a
separation agreement
which among other things specifies the amount of money that would be
paid to such employee and states that
he would not take the matter
further such as referring a dispute to the CCMA. In respect of res
judicata doctrine, in
Molaudzi
v S
[1]
the Constitutional
Court said,
“
The underlying
rationale of the doctrine of res judicata is to give effect to the
finality of judgments. Where
a
cause of action
has been
litigated
to finality
between
the
same parties
on
a previous occasion
,
a subsequent attempt by one party to proceed against the other party
on the same cause of action should not be permitted. It is
an attempt
to limit needless litigation and ensure certainty on matters that
have been decided by the courts”
[2]
(own emphasis)
[6]
What is required for the respondent to succeed herein is to show that
these issues (the contractual notice pay and contractual
leave) were
referred to the CCMA against the applicant and were subsequently
finalised there.
In casu
,
there is no averment that the same “
cause
of action”
had been referred to the
CCMA and under those circumstances, the res judicata special plea
fails.
[7]
In respect of doctrine of compromise, I must take into account what
is before me. The existence of the agreement is not in dispute
between the parties and that this agreement partly reads as follows:
“…
the
undersigned parties record the settlement of the 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 contents hereof. This agreement
is in
full and final settlement of the dispute referred to the CCMA as well
as in
full settlement of the
statutory payments
due to the
applicant unless specifically excluded in paragraph 4 of this
agreement…”(Own emphasis)
[8]
The applicant in his heads of argument argued that this agreement
makes no mention of full and final settlement of all and/or
any other
disputes that he could institute against the respondent and gives the
example of the dispute before this court. The applicant
urges this
court, as I do forthwith, to look at the statement of case, as to
what is the claim against the respondent. In paragraph
3.6.1 the
applicant avers that in respect of notice pay it was agreed in the
contract of employment that it would be equivalent
to eight (8)
weeks, and the applicant has been paid part of it. However, he is
demanding payment of the balance. In arguing against
the compromise
defence, the applicant refers this court to
Hubbard
v Mostert
2010 (2) SA 391
(WCC)
paragraphs 7
to 11, and
Leon De Lange v Kosmosdal Ext 61 &
Ext 62 case number JS 172/15
paragraphs 2 to
13. I must mention that these authorities have not assisted the
applicant as the facts and circumstances of both
cases are in
contrast with what is before this court, as the respondent relying on
the fact that the CCMA settlement records a
“
full
settlement of the statutory payments.”
[9]
This court must guard against a situation whereby parties will
attempt to avoid situations such as when parties attempt to avoid
complying with valid binding contracts or statutes which govern their
relationship and approach this court by crafting their pleadings
in a
way that will attempt to undermine the same contracts or statutes
with an intention of sourcing an unfair advantage using
the
provisions of section 77 of the Basic Conditions Of Employment
Act.
[3]
For example in
Steenkamp
and others v Edcon Limited
[4]
the Constitutional
Court said,
“
However, the
applicants have dressed their complaint up as something else so that
they can avoid the mechanisms and remedies under
the LRA and seek a
remedy that falls outside of the LRA concerning dismissals. They do
so in an attempt to get maximum benefit
that is available only when
the breach relied upon is not that of the provisions of the LRA. What
the applicants are doing is not
exactly forum-shopping, but it is
analogous to forum-shopping. Where the law permits forum-shopping, a
litigant cannot be denied
relief just because it is engaging in
forum-shopping. However, in this case, there is no room for granting
the remedy sought by
the applicants.”
[5]
[10]
I am of the view that the applicant in respect of both these claims
waived his rights to institute any action, emanating from
notice pay
and leave pay, against the respondent as he settled the dismissal
dispute and “
all statutory payments”
because section 37 of the Act provides that ,
“
37. Notice of
termination of employment.—(1) Subject to section 38, a
contract of employment terminable at the instance
of a party to the
contract may be terminated only on notice
of
not less than
—
(a)
one week
,
if the employee has been employed for six months or less;
(b)
two weeks
,
if the employee has been employed for more than six months but not
more than one year;
(c)
four weeks
,
if the employee—
(i)has been employed
for one year or more; or
(ii)is a farm worker
or domestic worker who has been employed for more than six months."
(Own emphasis)
[11]
The applicant’s contract of employment is governed by the same
Act and the payment that the applicant received is “
not
less than”
what is contained in subsection 37(1)(c) of
the Act, and by accepting the amount of money that he agreed to at
the CCMA, he clearly
waived his right to claim payment in terms of
the contract of employment that he entered into which is governed by
the Act. As
to whether the parties agreed that the applicant was to
receive eight weeks’ notice pay is not important anymore
because
he decided that he would not take any action relating to the
same issue. Under those circumstances, I conclude that the applicant
is barred from continuing with a claim for payment of
contractual notice pay and contractual leave as both are governed by
the Act, and such payments are respectively regulated by sections 21
and 37 of the same Act which parties agreed that are settled.
Lack
of jurisdiction
[12]
The respondent contends that, the balance of the applicant's claims
(contractual vehicle expenses, and contractual salary increases)
relate to a benefit which he was entitled during the subsistence of
the employment relationship and under those circumstances the
respondent avers that this court has no jurisdiction to deal with
this matter, as the applicant was supposed to refer the dispute
to
conciliation. Mr
Nel
during submission, on behalf of the respondent, wisely withdrew the
special plea in respect of contractual vehicle expenses claim.
However, he pressed on the one of salary increase. The respondent
argues that the applicant should have referred the dispute to
the
CCMA for conciliation as is an unfair labour practice dispute.
[13]
The respondent misses the point in respect of this argument in that
the applicant is no longer an employee of the respondent
and to say
the matter should be conciliated is a thinly-veiled defence taking
into account that it is common cause between the
parties that the
applicant was dismissed in July 2016 and the statement of case was
delivered in June 2017. The claim herein is
different from the claims
which are based on the Act, in that the applicant’s case is
based on the employment agreement wherein
he was entitled to annual
salary increases for the periods of May 2015 to April 2016, May 2016
to 31 August 2016. The applicant
says as a result of the unlawful and
breach of the employment agreement the applicant has suffered
damages, therefore, wants to
recover such damages. In my view,
section 77 of the Act caters for instances of this nature especially
if the employee is no longer
employed by such an employer.
Considering the applicant’s statement of case, the way this
point is pleaded I am satisfied,
unlike the contractual notice pay
and leave pay claims mentioned above, that the issue is about
damages.
[14]
Wherefore the following order is made:
Order
1.
The special plea of
res
judicata
is dismissed.
2.
The special plea of Compromise is upheld.
3.
The special plea that this court lacks
jurisdiction to adjudicate a claim for damages relating to
non-payment of contractual salary
increase is dismissed.
4.
No
order as to costs.
_______________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Adv J D Withaar
Instructed
by
:
A H Stander
Attorneys
For
the Respondent: Adv Nel
Instructed
by: Lee and McAdam Attorneys
[1]
2015 (8) BCLR 904 (CC).
[2]
Para 16. See also paras 14 and 15.
[3]
75 of 1997 (“the Act”).
[4]
(CCT46/15,
CCT47/15) [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311
(CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC)
(22 January
2016), at para 173.
[5]
Supra n 4, para 125.