IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE
HELD AT JOHANNESBURG
Case No. J5981/01
In the matter between:
CHILOANE, JARLOS AND OTHERS
Applicant
and
REMA TIP TOP INDUSTRIAL (PTY) LTD
Respondent
J U D G M E N T
NTSEBEZA AJ:
1. This is an application in which there is a claim of unfair retrenchment by
the Applicants, which they allege occurred on 15 June 2001. The
Applicants deny accepting a voluntary package and allege that any monies
that they took were taken on a without prejudice basis. They deny that
they signed any documents in full and final settlement of their claims. In
Court the Applicants’ representative, Mr Luthuli, requested the Court to
allow the Applicants’ to lead oral evidence of what happened to them in
relation to their alleged retrenchment. He was keen to demonstrate that
there was no valid agreement that had been arrived at between the parties
and that the effort by the Respondent to raise a point in limine , to that
effect, was a ploy on his part to prevent the Court from hearing the
Applicants’ case.
2. The Respondent on the other hand has raised a point in limine in which it
argues that there has been a consensual termination of the employment
relationship since the Applicants entered into written agreements with
Respondent, in full and final settlement of all claims, and accepting a
voluntary retrenchment package. Ms da Costa, who appeared for the
Respondent, argued that there are contracts in place, which remain in
place until they have been vitiated by the Applicants. The Applicants
cannot seek to withdraw from those contracts without bringing an
application to set the agreements aside. Further, the voluntary packages
which were received by the Applicants, so argued Ms da Costa, have not
been tendered by them.
3. Ms da Costa submitted that it was common cause between the parties that
the Applicants had attended meetings with the Respondent on 10, 17 and
29 May 2001 and on 5 and 12 June 2001. The Applicants had been
represented by one Mkhize and one Luthuli at the meetings in May and in
June. The minutes of these meetings, which form part of the bundle, were
admitted by both parties to be a true reflection of what occurred at the
meetings. Ms da Costa submitted that the Applicants admitted that they
had attended at the offices of the Respondent on 14 June 2001 where all
of them, except Mr Chiloane, signed the written agreements in full and final
settlement in respect of voluntary retrenchment. Chiloane had signed the
agreement but had included the words, “I am not satisfied. But I am
forced due to layoff. ( sic!) I will like to go ahead, ….” . The
Respondent did not accept this qualification whereafter on 18 June 2001
Chiloane returned and signed the agreement unconditionally and without
any complications. Ms da Costa submitted that the Applicants, and this
was common cause according to her, had accepted the voluntary
package which offered two weeks per completed year of service, as
opposed to one week per completed year of service as had been offered
during the two meetings between the parties.
4. The Applicants had received the following voluntary retrenchment
packages which included notice pay and leave pay, according to the
submission by Ms da Costa which she argued was common cause:
Jarlos Chiloane R 5 415,32
Bongani Mgeza R18 706,68
Leonard Makhathini R10 881,47
Lloyd Manmyatha R 7 878,76
5. Insofar as the Applicants were now seeking to allege that they were
“forced” to sign the said written agreements and that they should
therefore not be bound by them, and insofar as they have not tendered the
return of their retrenchment packages received in terms of these
agreements that had been signed, and insofar as the Applicants have not
alleged how they were “forced” to sign the agreements, Ms da Costa
submitted that the only inference that flows from these circumstances is
that the parties had entered into valid binding agreements that terminated
their employment relationship by consent as between the parties. There
was no question of an unfair retrenchment and the written agreements
were in full and final settlement of any and all claims against the
respondent arising out of the mutual termination of their employment
relationship. Insofar as an employee who validly agrees to the termination
of his employment contract cannot be said to have been dismissed, the
Applicants have no case in respect of unfair retrenchments since no
dismissal as envisaged by section 186 of the Labour Relations Act No. 66
of 1995 (“the Act”) has taken place. On that basis, Ms da Costa argued
that the point in limine must be upheld. For authority for the proposition
that an employee who validly agrees to the termination of his employment
contract cannot be said to be dismissed, I was referred to United Tobacco
Co Ltd v Baudach 1997 [18] ILJ 506 [LAC].
6. Ms da Costa also referred to Ackrow and Another v Northern Province
Development Corporation [1998] BLLR 916 [LC] at 920FG, where my
sister Ms Justice Revelas stated the following:
“The employment relationship between the parties in this matter was
terminated by agreement. The applicants were not dismissed and
therefore there was no termination of service for operational
requirements.”
In another case referred to by Ms da Costa, Kynoch Feeds (Pty) Ltd v
CCMA and Others [1998] 19 ILJ 836 [LC] at 849GH my sister Revelas
again stated that an agreement between an employer and an employee to
terminate a contract of employment is not a “dismissal” as defined by
section 186(a) of the Act, or in any other sense.
7. Having read and perused all the documents and the points not in dispute
not having been contested by Mr Luthuli to be in dispute, I am satisfied
that the Applicants fully and voluntarily entered into and signed the written
agreements terminating their employment relationships and that they
accepted the voluntary retrenchment packages. I reject the allegation that
they were “forced” to sign the written agreements. I accept the
submission that they were all aware of their rights when they agreed to
accept the voluntary retrenchment packages. In the circumstances, the
point in limine succeeds. The application is dismissed. None of the parties
argued for costs even though in the pleadings the Respondent asked for a
punitive costs order against the Applicants jointly and severally. Since that
was not pursued in this Court, I will not order any costs. There is therefore
no order as to costs.
___________________________
D B NTSEBEZA
ACTING JUDGE OF THE LABOUR COURT
Date of hearing: 24 July 2002
Date of Judgment: 27 August 2002
For the Applicants: MR LUTHULI
United Peoples Union S.A.
P O Box 61651
MARSHALLTOWN
2107
For Respondent: ADV M B G DA COSTA
Instructed by GRANT RAE ATTORNEYS
P O Box 3913
EDENVALE
1610