THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS690/2020
In the matter between:
TEBOGO JOSIAH MOLOI Applicant
And
BARLOWORLD EQUIPMENT SOUTHERN
AFRICA (PTY) LTD (A DIVISION OF BARLOWORLD
LIMITED ) Responde nt
Decided: In chambers
Delivered: 06 May 2025
This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The dat e for hand- down is deemed
to be 06 May 2025
JUDGMENT : RESPONDENT’S APPLICATION FOR LEAVE TO APPEAL
GANDIDZE, AJ
2
Introduction
[1] On 14 January 2025, this Court handed down a judgment which found that
the dismissal of the applicant, Mr Moloi, was substantively unfair, and ordered the respondent to pay the maximum compensation of twelve months and the applicant’s
costs. The respondent seeks leave to appeal against the entire Judgment and Order.
The application is brought in terms of Rule 67 of the Rules Regulating the Conduct of
Proceedings of the Labour Cou rt
1, as well as section 17(1)(a)(i) of the Superior
Courts Act 10 of 2013, with the respondent contending that another Court would arrive at a different conclusion to that arrived at by the Court . In Member of the
Executive Council for Health, Eastern Cape v Mkitha and Another
2, the court stated
that t he tes t in these applications is whether there are reasonable prospects that the
appeal would succeed.
Site Performance Manager Role Offer
[2] The respondent submits that the Court ought to have found that the parties
were bound by the pre- trial minute, which recorded that the applicant was offered the
position of Site Performance Manager , which he declined, opting for a retrenchment
package instead. In arriving at the conclusion reached, the Court had regard to what
was contained in the pre- trial minute, together with the applicant’s uncontested
evidence that he was informed of the position at the end of May 2020, after he raised
a concern that the termination of his services , as per the letter issued to him on 8
May 2020, meant the discontinuation of the medical aid benefit s in circumstances
where his son required medical treatment due to being diagnosed with COVID -19.
Therefore, the evidence provided by the applicant did not contradict what was contained in the pre- trial minute but instead painted a fuller and more precise picture
of what had transpired and when.
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
2 [2016] ZASCA 176; [2016] JOL 36940 (SCA).
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[3] The respondent’s submission that the Court ought to have confined itself to
the contents of the pre- trial minute , and ignore the applicant’s evidence, fails to
account for the contents of the termination letter it issued to the applicant on 8 May
2020, that, as of that date, no alternatives had been found to avoid the applicant’s
retrenchment . The question that arose, which the Court was required to decide, was
when the parties discussed the role of the Site Performance Manager. The applicant tendered evidence on the issue, which was not controverted, and his version was supported by the contents of the termination letter dated 8 May 2020. To arrive at its
conclusion, the Court was legally obliged to have regard to all the evidence fully canvassed during the trial .
[4] A further consideration, though of less significance on the facts of this matter ,
was the applicant’s undisputed version that he was informed that he could apply for
the role, as opposed to the role being offered. On those facts, there can be no talk of an offer of alternative employment which the applicant rejected.
[5] There is no prospect that the a ppeal Court would arrive at a different
conclusion on whether the applicant opted to accept a retrenchment package instead
of taking up the position of the Site Performance Manager.
The compromise or settlement
[6] The respondent submits that the Court erred in law and in fact when it found
that the termination letter did not constitute a settlement agreement.
[7] First, the respondent takes issue with the f inding that the applicant was paid
only statutory payments . That the applicant was paid only statutory payments is
factually correct.
[8] Second, t he respondent submits that the applicant was not entitled to
severance pay as he was offered and declined a reasonable offer of alternative employment. The termination letter says the contrary , and the respondent is shying
away from addressing the elephant in the room . The main judgment addressed the
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invitation to apply for the Site Performance Manager role after the applicant was
issued a termination letter . In any event, the role was not reasonable for the reasons
set out in the main judgment . The applicant was within his rights to decline the
invitation to apply.
[9] Thirdly, the respondent submits that the termination letter constitutes a
settlement agreement because it records that the acceptance of the retrenchment package is in full and final settlement of any and all disputes between the parties. The respondent placed no credible evidence before the Court that the dispute was settled, and w hatever views Schoeman held based on the contents of the
termination letter (as submitted in the respondent’s closing submissions) were of no
assistance because, on Schoeman’s own version, he was not involved in the
process that led to the applicant’s termination. The ‘waiver’ argument, also forming part of the respondent’s submissions, was not supported by any facts or legal argument as required.
[10] The Court is also said to have ignored the ‘purpose’ of the retrenchment
package. The retrenchment package was comprised of mandatory statutory
payments.
[11] The parties signed a termination letter and did not settle any disputes. Natal
Joint Municipal Pension Fund v Endumeni Municipality
3 enjoins this Court to read the
words used in the context of the document as a whole and in light of all the relevant circumstance s. On the facts, to regard the termination letter as a settlement
agreement results in absurdity. An appeal Court would not find differently.
Bumping as a selection criterion
[12] This half-hearted argument is being presented for the first time on appeal. T he
first guiding principle for the restructuring was that where a position remained unchanged/unaffected, the incumbent would be confirmed and not be permitted to
3 2012 (4) SA 593 (SCA) ; [2012] ZASCA 13 at paras 19 and 24.
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apply for other positions. The applicant fell into this category, rendering ‘bumping’
inapplicable and unnecessary. But even if bumping was applied, the respondent did
not provide any evidence to explain what it had done and why , in circumstances
where it bore the burden to prove that the dismissal was for a fair reason. Instead, it
was content to put versions to the applicant in cross -examination and left its case at
that, thereby failing to discharge the onus of proof . On the evidence, it remained
unknown why the applicant needed to be retrenched so that another employee could occupy his position, unaffected by the restructuring. There is no prospect that the
appeal Court would arrive at a different conclusion.
Relief granted
[13] The respondent takes issue with the Court’s decision to award the maximum
compensation when t he applicant had declined a reasonable offer of alternative
employment and in circumstances where he was offered an enhanced severance package. These contentions were addressed in the main judgment and in this
judgment . Section 195 of the Labour Relations Act No 66 of 1995 is clear that
compensation is in addition to, and not a substitute for , any other amount to which an
employee is entitled. Therefore, the fact that the applicant had received statutory
payments when he was terminated did not preclude the Court from awarding the
maximum compensation as contemplated in section 194(1) of the LRA. Moreover,
the main judgment sets out why maximum compensation was awarded. There is no
suggestion that the Court did not exercise its discretion judicially or relied upon
wrong facts or acted upon a wrong principle or committed a misdirection , or that the
decision was capricious , which would justify an appeal Court interfering with the
exercise of the Court’s discretion on the compensation award. This ground for leave
to appeal must fail , too.
Costs order
[14] The respondent takes issue with the Court’s decision to grant costs against it.
The decision was substantiated for the reasons set out in the judgment. In addition,
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both parties sought costs against each other, and the Court exercised its discretion
judicially.
Conclusion
[15] The respondent does not have reasonable prospects of success , which would
lead the appeal Court to arrive at different conclusion s on the issues addressed in
the main judgment . There was only one credible version before the Court, that of the
applicant, which was not controverted, and the Court accepted it.
[16] In the premises, the following orde r is made:
Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
T Gandidze
Acting Judge of the Labour Court of South Africa