First National Bank Limited (Westbank Division) v Mooi NO and Others (JR1018/07) [2008] ZALC 99; (2009) 30 ILJ 336 (LC) (24 July 2008)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case no: JR1018/07

In the matter between:

FIRST NATIONAL BANK LIMITED Applicant

(WESBANK DIVISION)

And

FAIZEL MOOI N O 1ST Respondent

CCMA 2nd Respondent

KEVIN WELMAN 3rd Respondent

JUDGMENT

MOLAHLEHI J

Introduction

This is an application in terms of which the applicant seeks an order to review and set aside the condonation ruling issued by the first respondent (the commissioner) under case number GAJB 2820-07, dated 6th March 2007. The applicant also brought an application for condonation for the late filing of the review application which was not opposed by the 3rd respondent, and was accordingly condoned.

Background facts

The third respondent, Mr Kevin Welman, who was employed by the applicant as senior corporate business development officer was charged and subsequent to a disciplinary hearing dismissed for misconduct for contravening paragraph 4.2.1 of the applicant’s disciplinary code and procedure. The following day after his dismissal 22nd November 2006, Mr Welman submitted a written appeal in which among others he stated the following:

“Please give me the opportunity to go and look for work, as hard as it will be, without being restricted, in terms of the consequence of a dismissal”.

It was then agreed further to a discussion between the parties that the applicant will state in the certificate of service that the reason for termination of the employment of the third respondent was due to voluntary resignation and not a dismissal.

The appeal process was as a result of this agreement abandoned and on the 7th December 2006, the party signed a settlement agreement indicating that the termination of employment was due to voluntary resignation by the third respondent. This reason was reflected on the certificate of employment required in terms of S142 of the Basic Conditions of Employment Act 75 of 1997.

In addition to the provision that the agreement would remain confidential between the parties, the agreement also included a standard term that the agreement was in “full and final settlement of any claims” that the third respondent may have against the applicant.

On the 29th January 2007, the third respondent referred an unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA), and because the referral was late an application for condonation was also made by the third respondent.

The applicant opposed the application for condonation. And in dealing with the prospects of success the applicant contended that none existed as the CCMA did not have jurisdiction because the dispute had been settled by agreement between the parties.

In his condonation application the third respondent averred amongst other things that:

“Thereafter I have been subjected to the disciplinary enquiry and dismissed by the respondent on the 21st November 2006 I immediately lodged an appeal in writing on the same day. I personally handed the letter to Nomfundo Captain (“Nomfundo”) PACS Manager. Although I did not complete form IR3 I submit that I had complied substantively with the appeal process set out in paragraph 3 of the code in that I set out in writing my intention to appeal against my dismissal as well as detailed reasons for the appeal (“nature and grounds of appeal”) and the notice was dated and signed by me”.

The letter which was attached to this appeal application form dated 22nd November 2006, was not attached to the third respondent condonation application papers before the CCMA. The relevant part in as far as this matter is concerned in the letter reads as follows:

“I ask the Appeal Committee to please please (sic) grant me a Voluntary resignation…”

The third respondent contended in his condonation application before the CCMA that the settlement was entered into on the basis of “Justus error” because he thought that the only means of securing a certificate of termination of employment was through signing the agreement. He further contended that he was pressurised to sign the settlement agreement by the deponent of the founding affidavit Mr Jacobs, head of the employee relations. According to the third respondent, Mr Jacobs informed him that:

“8.15.1 The Applicant was obliged to inform the REDS Bureau of the reason for Mr Welman’s dismissal;

8.15.2 If Mr Welman wish to obtain an employment with another bank, it was essential that the termination of the employment relations was describe as something other than dismissal;

8.15.3 I suggested that Mr Welman’s FAIS licence would be withdrawn”.

The commissioner’s ruling

The commissioner found that after lodging the appeal the third respondent was advised and signed a confidential agreement which was “in full and final settlement”. He further found that:

“The applicant was refused an opportunity to consult an attorney and entered into an agreement on the basis of Justus error. The settlement did not amount to a compromise which ousts the jurisdiction of the CCMA as it took away a lot and gave very little in return”.

In summarising the applicant’s argument the commissioner states:

“The applicant was found guilty in terms of the disciplinary code and after he filed an appeal the matter was settled fully and finally on the basis that the reason for the dismissal will be altered to a voluntary resignation. S42 of the BCEA does not state the reason for termination should be stated. By stating the reason the applicant received a benefit that was a compromise to the extent that the certificate indicates that there was a voluntary resignation”.

The commissioner further reasoned that he was constrained in arriving at his decision by the fact that the agreement which was signed by the parties was not furnished to him because of it’s confidentiality clause.

As concerning the in “full and final settlement” clause of the agreement the commissioner, relying of Wille on Contemporary Labour Law Vol 10, January 2001, reasoned that the phrase does not necessary entail giving up one’s right to approach a court regarding the fairness of a dismissal. Having come to this conclusion the commissioner found the agreement not to be in “full and final settlement”, because “neither side was conceding anything outside the statutory law” and the appeal was not finalised. He further found that it was a fiction to state in the certificate that the first respondent had voluntarily resigned.

Evaluation

It is evidently clear that in addition to determining the condonation of the late referral of the dispute the commissioner also considered the interpretation and application of the agreement concluded by the parties.

The powers of the commissioners of the CCMA to rule on the interpretation and application of agreements is in my view confined to collective agreements in terms of s24 of the Labour Relations Act 66 of 1995 (the Act). In order to have the agreement set aside the third respondent ought to have approach either the Civil Court or this Court in terms of S77 of the BCEA.

In my view the commissioner committed a gross irregularity and exceeded his powers in finding that the agreement was invalid or the termination of the employment relationship was not by mutual agreement between the parties. The ruling stands to be reviewed for this reason alone.

The commissioner further committed gross irregularity in ruling on the validity of an agreement which was never placed before him. Whilst, it is clear the agreement was confidential between the parties, the commissioner could have called for the agreement and considered it in camera under the seal of confidence.

In my view the law and fairness do not dictate that costs should follow the result.

In the premises I make the following order:

1. The late filing of the review application is condoned.

2. The ruling issued by the commissioner under case number GAJB2820-07 dated 6 March 2007 is reviewed and set aside.

The matter is remitted back to the second respondent for consideration by a commissioner other than the first respondent.

There is no order as to cost.

_____________

MOLAHLEHI J

Date of Hearing: 17 June 2008

Date of Judgement: 24 July 2008

APPEARANCES

For the Applicant: Adv Tiedeman

Instructed by: Edward Nathan Sonnenbergs

For the Respondent: Attorney T Van Der Walt

Instructed by: Allardyce & Partners

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