Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4338/99
2002-12-02
In the matter between
ECCAWU SA
obo MR T C SHAPU Applicant
and
HILTON HOTEL SANDTON Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN J: Mr T C Shapu was employed as a captain in the
food and beverage division of the Hilton Hotel Sandton. He
was dismissed from his employment. During proceedings
before the CCMA, Mr Shapu and Hilton settled the dispute.
The written agreement of settlement dated 28 September
1999 reads as follows:
"That Mr Shapu, the applicant, shall receive four months'
salary calculated on gross salary he earned before his
dismissal. He will be reemployed with the same terms and
conditions of employment as before. He will be offered a
position within the hotel of the same level to that which he
occupied before his dismissal. He will resume his duties on
1 October 1999 at 08:00. This serves as full and final
settlement of this dispute."
Certain events took place before 1 October 1999, the
day on which Mr Shapu would resume his services. I will
return to these in due course. But the result was that Mr
Shapu did not resume duties in the sense that he was not
reemployed, and as a result he and his union applied in terms
of section 158(1)(C) of the Labour Relations Act 66 of 1995 to
make the agreement an order of court. The application was
opposed.
Hilton in brief stated that the monetary amount had been
paid. Hilton went on to say in the founding affidavit in 5.5, and
this is the affidavit of Mr Dubani, the then human resources
manager. He says:
"On 1 October 1999 I presented a letter of appointment to the
second respondent (Mr Shapu) for perusal and signature. The
letter contained the terms and conditions on which the second
respondent was to be reemployed by the respondent.
Furthermore the letter of appointment also provided for the
signature by the second respondent in acceptance of the
terms and conditions set out therein. The second respondent
refused to accept reemployment and refused to sign the letter
of appointment. The copy of the letter of appointment which
is signed by myself is annexed hereto marked 'RTZ' and I
respectfully refer this honourable court thereto.
5.6 I respectfully state the respondent has complied with the
terms of the agreement."
Mr Shapu and his union responded by adding an
alternative prayer to the notice of motion that the Hilton be
ordered to pay compensation to Mr Shapu in terms of section
194(2) of the LRA. The notice or intention to amend also
sought to amend the founding affidavit. This of course
impossible. It is, however, common cause that Hilton has
complied with the monetary obligation resting upon it in terms
of the settlement agreement. The replying affidavit by a union
official confirmed a year later why Mr Shapu states:
"The second applicant denies that he was presented with any
documentation for perusal and signature and the respondent
is put to the proof thereof.
2. The second applicant presented himself for reemployment at
the respondent's premises on 1 October 1999 in accordance
with the agreement and on his arrival he was informed by Mr
Dubani, the human resources manager of the respondent, that
the general manager and the head of department (food and
beverage) have resolved that the second applicant should not
be reemployed in that he was unfit to be in a continued
employment relationship with the respondent.
3. The second applicant was further informed by Mr Dubani to
come back at 13:00 to collect his cheque which would be
ready for collection then. The second applicant duly went
back at 13:00 to collect his cheque, which cheque was in fact
ready for collection but no documents whatsoever was
produced for signature or perusal and the respondent is
accordingly put to the proof. The respondent further refused
to reemploy the second applicant during a meeting which was
held on 28 January 2000 between the parties at Sandton for
the following reasons:
12.4.1 Due to the second applicant's alleged misconduct of
30 September 1999 ..."
Which is immaterial to this application.
When the matter came before my brother Ngamu AJ he
referred the matter to oral evidence. The matter was referred
to oral evidence in respect of the following:
"1. Whether the second applicant tendered his services on
1 October 1999.
2. Whether the employment letter was tendered to second
applicant for his signature.
3. Whether second applicant sought to amend the said letter.
4. Whether second applicant sought financial settlement instead
of reemployment.
5. Whether second applicant misconducted himself prior to
1 October 1999."
The matter served before me on 28 November 2002.
Mr Shapu testified about the matter as referred to oral
evidence and Mr Rufus Dubani did the same. I do not intend
summarising the evidence of the witnesses. I do not believe
that Mr Shapu has told me the entire truth, and I have the
same doubts about the testimony of Mr Dubani. Mr Shapu
agrees that after he had been dismissed he returned to the
hotel on a social occasion and was removed from the Faces
lounge bar by two members of the South African Police.
Previously Mr Shapu had been the captain working in that part
of the hotel. The police removed him after he had been asked
to leave by various managers. He put the date of this incident
in August 1999. Mr Dubani puts it on the day before Mr Shapu
appointed for work, namely 1 October 1999. I believe that Mr
Dubani is correct. This explains why Mr Shapu was kept
waiting when he reported for duty on 1 October and why on
his evidence he was told that the meeting of managers had
not reached a resolution concerning him. Mr Shapu also was
told that they had not reached their verdict. It is common
cause that Mr Shapu's cheque was not ready and he was
obliged to return for it later that day.
I am of the opinion that the evidence shows that the
Hilton did not want to reemploy Mr Shapu, as a result of what I
shall call as the commotion which he created on the previous
day. This is reinforced by the allegations in the answering
affidavit which refers to the misconduct of Mr Shapu. Although
Mr Dubani says:
"I am advised (it is not material to the present application) the
second applicant was suspended pending a disciplinary
inquiry."
I accept that Mr Shapu tendered his services to be reemployed
by 1 October and that Hilton rejected it on account of his
misconduct. The letter offering reemployment is dated
30 September, but I find that this was not presented to Mr
Shapu. It has been overtaken by events, including the
meeting of management which was held on 1 October to
consider and deal with the misconduct. I also find that
Mr Shapu did not attempt an order to seek financial
settlement, not did he attempt to have the letter of
appointment changed simply because it was not placed before
him. I also note that Mr Shapu said under cross-examination
that he may not want to go back to the hotel.
This brings me to the question whether the application
should be granted. Mr Shapu is not certain that he wishes to
be reemployed by the Hilton. This is understandable as some
three years has passed and the order should not be granted if
it would be an academic one. However, Mr Shapu's
persistence with this application since 28 October 1999 is an
indication that we are not under pressure, he wishes to return
to his employment. What troubles me that the settlement
agreement contains a patrede contrahenda . Van der Merwe,
Contract General Principles Juta (1993) 69-70 deals with the
relationship between parties in contrahendo and after setting
out the South Africa Law as an introduction they say:
"In continental legal systems it is well established that the
capacity to break off negotiations is restricted by normative
considerations. It is accepted that entering into negotiations
for a contract creates a particular relationship between the
parties which is governed by good faith and objective
reasonableness and which requires each party to have regard
to the legitimate interest of the other. Depending on the
circumstances duties to inform, to exercise due care, to
compensate for loss suffered by a party as a result of the
frustration of reasonable expectations or to continue
negotiating in good faith may arise by operation of law. The
position in South African law is not altogether clear or wholly
satisfactory. There is for instance doubt about the extent to
which the norm of good faith applies in contrahendo."
In this case I am of the opinion that there exists
agreement as evidenced in the settlement agreement on the
precise terms of the contract of reemployment. In any event it
would have been competent for the CCMA, assuming it had
jurisdiction and found that the dispute was substantively
unfair, to have ordered to ... (inaudible) to reemploy Mr Shapu.
If this is so then a contractual agreement between an
employer and an employee that the employer will reemploy
the employee would be enforceable, provided that any prior or
contemporaneous obligation resting on the employee had
been met.
What is the effect of the misconduct which took place on
30 September, that is between the date the settlement was
arrived at and the date that Mr Shapu would report for his
duties? If this agreement, which I found to be a contract de
contrahendo had been pleaded differently and had there been
evidence on the papers regarding his conduct as a defence to
complying with this agreement then matters may have turned
out differently and even have influenced the exercised of my
discretion. But it was not the Hilton's case that it was entitled
not to comply with this agreement on account of the
misconduct. On the contrary, as I have set out earlier it was
Hilton's case that Mr Shapu was in default of his obligations.
I propose granting the applicants the relief which they
seek. I however express the refrain from commenting on the
legal consequences attendant since the tender to enter into
the contract of reemployment on 1 October 1999 and the date
of this order. This was not argued before me.
In the result I make the following order: The following
part of the deed of settlement concluded between the second
applicant and the respondent is made an order of court,
namely:
He will be reemployed with the same terms and conditions of
reemployment as before.
He will be offered a position within the hotel of the same level
to that which he occupied before his dismissal.
The respondent is ordered to pay the costs of this application.
LANDMAN J:
ON BEHALF OF APPLICANT:
ON BEHALF OF RESPONDENT: