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[2019] ZALCCT 3
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Mkoko v NHRBC (C781/14) [2019] ZALCCT 3 (6 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case no: C781/14
In the matter between:
PUMEZA
MKOKO
Applicant
and
NHRBC
Respondent
Date
heard: 8 November 2018
Delivered:
6 February 2019
JUDGMENT
RABKIN-NAICKER,
J
[1]
The applicant claims she was unfairly discriminated against on an
arbitrary ground. Section 11 of the
EEA provides as follows:
“
11
Burden of proof
(1) If unfair
discrimination is alleged on a ground listed in section 6 (1), the
employer against whom the allegation is made must
prove, on a balance
of probabilities, that such discrimination-
(a)
did not take place as alleged; or
(b)
is rational and not unfair, or is otherwise justifiable.
(2) If unfair
discrimination is alleged on an arbitrary ground, the complainant
must prove, on a balance of probabilities, that-
(a)
the conduct complained of is not rational;
(b)
the conduct complained of amounts to discrimination; and in terms
(c)
the discrimination is unfair.”
[2]
The applicant bears the onus in terms section 11(2) above, and I will
first examine whether on her version
alone, she has made out a case
in this matter. I therefore deal with her evidence in chief and
submissions made on her behalf.
She was led in chief by means of a
witness statement she had prepared for the purposes of trial. I
record this statement in material
part below:
“
1.
I was in the employ of the National Home Builders Registration
Council (“the NHBRC”) from March 2007 to August 2011.
I
joined the organization as a Registration and Renewals Administrator.
My duties entailed, inter alia, issuing and processing
of renewal
applications and related administrative work.
2. On 14 July 2010. I
along with other employees received an email from Werner Beukes of
the Human Capital Division informing us
of the intention to enter
into a restructuring exercise, called an Organizational Redesign
Process. Shortly thereafter several
positions were advertised
for which I applied. Interviews were held in January 2011.
3.
On 21 January 2011, I was told that I was successful in my
application for the position of Customer Services Consultant and I
received an addendum to my contract advising me of my new job title
as a Customer Services Consultant, effective from 1 February
2011. I
was also informed that my remuneration would remain unchanged.
4.
In terms of the restructuring exercise, the functions of
Registrations Administrators, Renewals Administrators and Enrolments
Administrators were aligned to form a single position of ‘Customer
Services Consultant’, effective from 1 February
2011. Despite
the fact that my job title changed I continued to perform largely the
same function as I had under my previous title
of Registrations and
Renewals Administrator. In this regard I had already been performing
two out of the three main functions of
a Customer Service Consultant
since March 2007. As a result of the alignment the organization
required fewer employees and embarked
on a retrenchment exercise
during 2011.
5.
During 2011 restructuring remained ongoing and several employees who
were not successful in their applications for alternative
positions
were in line for retrenchment in July 2011 I applied for, and
accepted, a Voluntary Severance Package (VSP) and my last
day at work
was 31 August 2011.
6. As
the restructuring phase took more than a year to conclude, there was
a lot of uncertainty and tension, general staff morale
was low and
the environment was not conducive to my growth and development.
7. A
motivating factor in entering into the VSP was to prevent two of my
colleagues Hazel Madolo and Buyiswa Mhlaba, from facing
retrenchment
as they were more exposed than I was in relation to the criteria
applicable during the retrenchment process. A further
motivating
factor in entering into the VSP was so that I could study towards an
Mtech Business Administration (Entrepreneurship)
at Cape University
of Technology. I anticipated the from my provident fund for which I
would have been eligible as a result of
the VSP, e.e termination of
employment.
8.
After taking the VSP I was unemployed from 1 September 2011 until I
got a temporary job at Old Mutual as a Retirement Funds Administrator
in July 2012. As I was out of the financial service industry for five
years I could not successfully negotiate for a good salary,
so I
settled for significantly less remuneration with no benefits. It was
also a fixed term contract position. In June 2013 I was
made aware of
a Customer Service Consultant vacancy at the NHBRC office in
Bloemfontein. I applied and was invited for an interview
on 4 July
2013. In my view, the interview went well, but exactly three weeks
later I received feedback from Johannes Booysen a
recruitment, that I
was unsuccessful. I asked him to furnish me with reasons and his
response was that I did well but another candidate
scored better. He
then encouraged me to check the NHBRC website for further vacancies.
9. I
immediately checked the website and noticed that there were a number
of the same and similar positions available in various
Provinces. I
sent in my applications, the closing date being 31 July 2013. In
about October 2013 after not receiving any response
I called the
Human Capital division and spoke to Ntombifuthi (a Recruitment
Consultant). She acknowledged receipt of my applications
and advised
me they were still busy with the technical vacancies.
10.
In January 2014 I met a former colleague and during our conversation
it came up that the vacancies had been filled and
I was informed who
got the job for the interview I attended on 4 July 2013………
13. I
felt so aggrieved and mislead, I started to question the sincerity of
the feedback I got from Johannes Booysen. I then called
the NHBRC’s
Human Capital Division and spoke to Bathabile Dlamini, who told me
that I was not considered for the positions
because the NHBRC
considered me ineligible for re-employment. I enquired about the
reason for this and was informed that clause
5.2 of the VSP
ostensibly renders me ineligible for re-employment.”
[3]
In submission, the applicant referred to Clause 5.2 of the VSP
contained in the bundle before court
which reads as follows:
‘
Ms
Mkoko specifically undertakes and agrees that no claim, action or
right of action against the NHBRC for re-instatment,
re-employment, remuneration, salary, notice pay, the value of accrued
leave pay, unfair dismissal, severance pay, or for any amount
or
remedy for having been subjected to an unfair labour practice, or for
any amount or remedy whatsoever, howsoever arising, other
than what
is contained in the agreement.”
[4]
It was submitted on behalf of the applicant that the only sensible
interpretation
to be given to the Clause above is that the parties
agreed that there would be a full and final settlement of all claims
arising
out of the applicant’s employment. They did not agree
that the applicant would waive or compromise any and all claims, of
whatever nature, she might have had against the respondent in the
future. This approach suggests that despite the undertaking that
the
employee cannot lay a claim for re-employment, she can in future lay
a claim for damages arising from a refusal by the respondent
to
re-employ her. I find the interpretation given to the Clause by the
applicant far from sensible or business-like.
[1]
[5]
Mr Bosh for the applicant also tackled the interpretation of Clause
20.2.1 of the
respondent’s ‘Recruitment, Selection and
Placement Policy’ which deals with the reappointment of former
employees,
and on which the respondent relied. It reads as follows:
“
A
former NHBRC employee may not be re-appointed where:
20.2.1
The former employee left the organization earlier on the condition
that he or she would not accept or seek reappointment,
for example,
former employees who accepted a Voluntary Severance Package”.
[6]
He argued that: “Former employees are precluded from seeking
re-appointment
with the respondent where they left early
on
condition
that they would not seek
reappointment. That can only be read as requiring that the former
employee has
agreed
that
he or she would not seek reappointment. There is no other sensible
interpretation.
[7]
The next step in these submissions also deserves recording:
“
The
applicant did not agree that she would not seek reappointment with
the respondent. Her evidence was that this was never explained
to her
when the agreement was concluded and she would not have entered into
the agreement if its effect was that she could not
apply for
reappointment with the respondent.
None
of the respondent’s witnesses was present when the VSP
agreement was concluded and were thus in no position to contradict
the applicant.”
[8]
The applicant did not plead, nor submit, that she entered into the
VSP under duress
or misrepresentation. Her witness statement reflects
the reasons that she accepted the offer to accept the severance
package. The
Court is expected to accept her evidence on how she
understood the contract, without reference to the law of contract.
[9]
The supplementary pre-trial minute in this claim summarizes the
material issues
in dispute as follows:
“
16.
Whether the Respondent acted rationally by the employing the
Applicant in circumstances where the Applicant, relative to the
successful applicants, possessed higher qualifications and had better
experience in respect of the advertised positions.
17.
Whether the failure of the Respondent to appoint or employ the
Applicant despite her experience because she entered into a VSP,
amounts to discriminatory conduct and if so, whether such conduct
amounts to unfair discrimination as contemplated in sections
6(1) and
9 of the Employment Equity Act 55 of 1998 (“the EEA”).
18. If
it is proven to exist, whether the ‘policy’
[2]
referred to by S Raphela in his response to the Applicant dated 12
August 2014 is lawful, rational and justified.”
[10]
Only from the vantage point of an ivory tower, could it be considered
irrational and unlawful
for a company or organization to preclude
re-appointment of a person who has accepted a voluntary severance
package. From a commonsense
standpoint it is imminently rational to
avoid a situation in which employees choose to take a severance
package during a restructuring
of the organization, only to apply for
employment with the company/organization at a later stage. Not only
would that undermine
the rationale for the restructuring, it would
also be prejudicial to other applicants for a post (previously
occupied by the employee
who took a VSP), whether they be internal to
the organization or new to the Company or organization.
[11]
I am of the view that this ill-founded claim deserves no further
interrogation by the Court.
On applicant’s case alone, I find
no basis for the remedy that she seeks i.e. patrimonial and
non-patrimonial damages in
the amount of R860,000.00. The
applicant was assisted pro bono and for this reason, although I am
sorely tempted to award
costs in this matter given the expenses
incurred by the respondent in defending it, I will not make a costs
award. I make the following
order:
Order
1.
The claim is dismissed.
_________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
CS Bosch instructed by Bradley Conradie Halton Cheadle
Respondent:
Abraham Kiewitz Inc
[1]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18 on which applicant relies.
[2]
This
is the Recruitment, Selection and Placement Policy.