Moropene v Competition Commission of South Africa and Others (J479/20) [2022] ZALCJHB 167 (27 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J479/20

In the matter between:

NGOAKO MOROPENE

Applicant

THE COMPETITION COMMISSION OF SOUTH AFRICA First Respondent

TEMBINKOSI BONAKELE

Second Respondent

MAKGALE MOHLALA

Third Respondent

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives through email. The date for hand-down is deemed to be 27 June 2022.

JUDGMENT

MAHOSI, J

Introduction

[1] The Applicant brought an application for an order in the following terms:

‘1. That the unlawful and summary dismissal and ultimately termination of the Applicant’s contract of employment by the First, Second and Third Respondents constitutes a breach of the First Respondent's contractual obligation to address allegations of misconduct against the Applicant;

1. That the unlawful and summary dismissal and ultimately termination of the Applicant’s contract of employment by the First, Second and Third Respondents constitutes a breach of the First Respondent's contractual obligation to address allegations of misconduct against the Applicant;

2. That the unlawful termination of the Applicant's contract of employment by the First, Second and Third Respondents is set aside;

3. That the Applicant is reinstated into his employment with the First Respondent with retrospective effect from November 2019, without loss of remuneration and benefits;

4. Alternatively, the First Respondent pays the applicant 20 months salary which was the balance of the Applicant's contractual salary remuneration amounting to Three Million Five Hundred Thousand Rand (3,500,000.00).

5. The Second and Third Respondent are ordered to pay the cost personally including the costs consequent upon the employment of counsel; and

6. Alternatively, costs against the First Respondent if opposed on an attorney and client scale including costs consequent upon the employment of counsel;

7. Further and or alternative relief.’[1]

[2] The application is opposed by the First, Second and Third Respondents (the Respondents).

The parties

[3] The Applicant is the former Principal Investigator in the Cartel's Division of the First Respondent, the Competition Commission, which is a statutory body constituted in terms of the Competition Act[2]to,inter alia, investigate, control, evaluate restrictive business practices, abuse of dominant positions and mergers in order to achieve equity and efficiency in the South African economy.

[3] The Applicant is the former Principal Investigator in the Cartel's Division of the First Respondent, the Competition Commission, which is a statutory body constituted in terms of the Competition Act

inter alia

, investigate, control, evaluate restrictive business practices, abuse of dominant positions and mergers in order to achieve equity and efficiency in the South African economy.

[4] The Second Respondent is Tembinkosi Bonakele, the Commissioner of the First Respondent. The Third Respondent is Makgale Mohlala, the Divisional Manager: Cartels Division of the First Respondent and was the Applicant’s immediate superior.

Background

[5] The Applicant commenced employment with the First Respondent in June 2005 as a Graduate Trainee and then proceeded through the ranks. In summary, he occupied the position of Graduate Trainee, Enforcement and Exemptions Division from June 2005 to August 2006; Graduate Trainee, Legal Services Division from September 2006 to June 2007; Legal Counsel, Legal Services Division from July 2007 to December 2011 and Principal Investigator, Cartel Division from July 2016 to November 2019.

[6] Towards the end of 2019, news of the terrible murder of Uyinene Mrwetyana by an employee of the South African Post Office broke. This prompted the First Respondent to conduct an extensive screening of its employees to determine if any of them had any criminal convictions, which had not been disclosed. It was during this investigation that the First respondent learnt that the Applicant was convicted of a crime of housebreaking with intent to steal in 1999.

[7] On 28 November 2019, the Second Respondent addressed a letter to the Applicant requesting him to explain, within a 48-hour period, why he should not be dismissed with immediate effect. In terms of this letter, the Second Respondent indicated that:

‘1. It has come to my intention that you have been convicted by a court of law for house breaking with intent to steal in 1999. You have failed to disclose this fact (your criminal record) to the Competition Commission (“Commission”) at the time of applying for the position of Senior Legal Counsel and for the position of Principal Analyst at the Competition Commission (“Commission”).

1. It has come to my intention that you have been convicted by a court of law for house breaking with intent to steal in 1999. You have failed to disclose this fact (your criminal record) to the Competition Commission (“Commission”) at the time of applying for the position of Senior Legal Counsel and for the position of Principal Analyst at the Competition Commission (“Commission”).

2. The failure to disclose your criminal record when applying for these senior positions constitutes misrepresentation of pre-employment representations of a material nature, which ought to have been disclosed.

3. In terms of your contract of employment concluded with the Commission you acknowledged that any misrepresentation of pre-employment representations may constitute a ground for dismissal.

4. As a result, I invite you to make a representation within 48 hours why you should not be dismissed with immediate effect.

5. You are required to direct your written representations to Mr Andile Gwabeni by close of business on Friday, 29 November 2019.’[3]

[8] On 29 November 2019, the Applicant’s attorneys of record responded to the Second Respondent’s letter and indicated that the Applicant’s criminal record was expunged in terms of section 271 of the Criminal Procedure Act[4](CPA) prior to the senior positions being advertised.

[9] Despite this response, the Second Respondent delivered another letter to the Applicant on 29 November 2019 in terms of which his contract of employment was terminated with immediate effect. Aggrieved by the First Respondent’s decision to terminate his contract, the Applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation on 29 November 2019.

CCMA proceedings

[10] In the section of the referral form requiring the Applicant to set out the substantive issues, he stated the following:

‘Employer terminated employment for no lawful reason.’[5]

Employer terminated employment for no lawful reason.’[5]

[11] The results required by the Applicant was:

‘Maximum compensation for unfair dismissal of applicant employee (equivalent to 19 months remuneration in respect of the remaining term of employment contract), as well as 12 months remuneration for procedural unfairness.’[6]

Maximum compensation for unfair dismissal of applicant employee (equivalent to 19 months remuneration in respect of the remaining term of employment contract), as well as 12 months remuneration for procedural unfairness.’[6]

[12] The dispute between the parties was unsuccessfully conciliated on 06 January 2020 and as a result, a certificate of non-resolution was issued. The Applicant then referred the dispute to arbitration and specified the issues in dispute as “unlawful/unfair dismissal.”[7]

[12] The dispute between the parties was unsuccessfully conciliated on 06 January 2020 and as a result, a certificate of non-resolution was issued. The Applicant then referred the dispute to arbitration and specified the issues in dispute as “

unlawful/unfair dismissal

[13] In his referral form, the Applicant indicated that he required the following:

‘I That the dismissal of the applicant be declared unfair and/or unlawful.

I That the dismissal of the applicant be declared unfair and/or unlawful.

II Compensation in respect of the unlawful/unfair dismissal of 24 months remuneration.’[8]

[14] The dispute was scheduled for arbitration on 16 March 2020. Prior to the commencement of the arbitration, the parties concluded a pre-arbitration minute in which the Applicant stated that he challenged the procedural and substantive fairness of his dismissal and that he sought 12 months compensation. The parties further consented to the mediation of the dispute, which culminated in the Applicant’s attorneys transmitting an email setting out an offer to settle the dispute. The email stated as follows:

‘Dear Mr Naidoo

Dear Mr Naidoo

Further to the without prejudice discussions held between us at the CCMA earlier today, we confirm, without prejudice to Mr. Ngoako’s rights, he shall accept compensation equivalent to 8 months salary to settle the unfair dismissal dispute under GATW19832/19. You may take instructions at your meeting with Chief Commissioner scheduled hereafter.’

[15] Following telephone exchanges between the parties, details of which are disputed, Mr Naidoo of the First Respondent addressed an email that reads as follows:

‘1. We refer to the email transmitted to Komeshan Naidoo at approximately 12h22 on Monday, 16 March 2020 in which you set out your client’s settlement offer.

1. We refer to the email transmitted to Komeshan Naidoo at approximately 12h22 on Monday, 16 March 2020 in which you set out your client’s settlement offer.

2. We also referred to the telephone conversation between you and Komeshan Naidoo earlier today in which you confirmed that your client’s settlement offer, as contained in your email referred to above, is in respect of the CCMA unfair dismissal claim under GATW19832/19 and all claims arising out of the termination of your client’s employment by our client on 29 November 2019.

3. We are instructed to inform you that our client accepts your client’s

offer.’[9]

[16] On 23 March 2020, the Applicant’s attorneys wrote an email to Mr Naidoo stating the following:

‘1. Our without prejudice email sent to you from the offices of the CCMA, together with your email regarding your 8 months offer, refers.

1. Our without prejudice email sent to you from the offices of the CCMA, together with your email regarding your 8 months offer, refers.

2. We have been instructed to reiterate that the without prejudice proposal was as per our email of 16 March 2020, that he would accept compensation equivalent to 8 months salary to settle the unfair dismissal dispute under case number GATW19832/19.

3. We have furthermore been instructed to highlight that there are various other matters pending between your client and ours. Also, your client needs to appreciate that the fixed term contract which our client had was to run until 31 July 2021. Accordingly, our client’s employment was curtailed by 20 months. It is our client's intention to approach the High Court on the basis of breach of contract of employment of the fixed term contract of employment.

4. For these reasons, the settlement proposal of 16 March 2020, as requested by yourself, should be read as per our email of 16 March 2020.

5. In the event however that your client would wish to settle any and all disputes of whatsoever nature relating to the employment relationship between our client and yours, our client is willing to accept 14 months in full and final settlement of all such disputes.

6. In the circumstances, kindly consult with your client and revert specifically on the aspect of the unfair dismissal dispute and a case number GATW19832/19 and then further on the proposals herein regarding full and final settlement of any and all claims, pending or future in respect of the employment relationship between our client

and yours.’[10]

[17] Later that day, Mr Naidoo addressed an email to the Applicant’s attorney in which he stated as follows:

‘1. We refer to a letter dated 23 March 2020 transmitted by email to Komeshan Naidoo earlier today.

1. We refer to a letter dated 23 March 2020 transmitted by email to Komeshan Naidoo earlier today.

2. On 17 March 2020, we communicated our client’s acceptance of your client’s offer to settle the dispute and all claims arising out of the termination of your client’s employment.

3. There is accordingly no basis for your client to pursue any other claim against our client in any other forum arising from the termination of his employment. Should your client nonetheless elect to pursue any such claim despite the terms of the offer been clearly confirmed between your Mr T Finck and Komeshan Naidoo on 17 March 2020 and then confirmed again in writing in our client’s acceptance letter later that day, we are instructed to oppose such a claim and to seek a punitive order for costs against your client.

4. Our client is processing payment to your client, which will be made as soon as an income tax directive is obtained from the South African Revenue Service in respect of the settlement amount.

5. All of our client’s rights remain reserved.’[11]

[18] On 12 May 2020, the First Respondent made the settlement payment equivalent to 8 months salary to the Applicant. Thereafter, the Applicant brought this application, seeking the relief as set out in paragraph one above.

[19] In opposition, the Respondents raised two pointsin liminewhich if upheld will be dispositive of the matter and will therefore be dealt with first hereunder.

in limine

Pointsin limine

[20] The first pointin liminewas that to an extent that the Applicant claimed that his dismissal was not effected in accordance with a fair procedure which is a right emanating from the Labour Relations Act[12](LRA), he only had one cause of action that should be enforced using the dispute resolution mechanisms as envisioned within the LRA. Alternatively, the Respondents submitted that the Applicant was bound by his election.

[20] The first point

in limine

was that to an extent that the Applicant claimed that his dismissal was not effected in accordance with a fair procedure which is a right emanating from the Labour Relations Act[12](LRA), he only had one cause of action that should be enforced using the dispute resolution mechanisms as envisioned within the LRA. Alternatively, the Respondents submitted that the Applicant was bound by his election.

[21] The second pointin limineraised was that the settlement agreement concluded on 17 March 2020, when the First Respondent accepted the Applicant’s offer of settlement resolved all claims arising out of the termination of the Applicant’s employment

Whether the applicant had only one cause of action

[22] In support of their first point, the Respondents submitted that the Applicant was dismissed for misconduct and that to an extent that his claim was that his dismissal was not effected in accordance with a fair procedure (his complaint being a breach of an alleged contractual right to a formal disciplinary hearing), then this was a dispute envisaged by section 191 of the LRA, which provides a procedure for its resolution, including conciliation and arbitration in terms of section 191(5)(a)(i).

[23] According to the Respondents, the Applicant was therefore confined to the dispute resolution mechanisms established by the LRA to challenge the termination of his contract. It was for this reason that the respondents submitted that the applicant’s claim was bad in law.

[24] In the alternative, the respondents submitted that it was impermissible for the Applicant, having pursued his claim to conclusion in the CCMA, to have instituted the present claim, alleging a different cause of action, when both claims arose from the same underlying facts.

[25] The law is diverse. It is trite that different claims can arise from the same set of facts. This was confirmed inMakhanya v University of Zululand[13], where the Court stated that:

[25] The law is diverse. It is trite that different claims can arise from the same set of facts. This was confirmed in

Makhanya v University of Zululand

, where the Court stated that:

‘[12] Thus there is the potential (I emphasise that I refer only to the potential) for three separate claims to arise when an employee’s contract is terminated. One is for infringement of his or her LRA right. Another is for infringement of his or her common law right. And where it occurs in the public sector, a third is for infringement of his or her constitutional right.’

[12] Thus there is the potential (I emphasise that I refer only to the potential) for three separate claims to arise when an employee’s contract is terminated. One is for infringement of his or her LRA right. Another is for infringement of his or her common law right. And where it occurs in the public sector, a third is for infringement of his or her constitutional right.’

[26] The Court further summarised the jurisdiction of the Courts as follows:

‘[18] Thus to summarise:

[18] Thus to summarise:

·The Labour Forums have exclusive power to enforce LRA rights (to the exclusion of the high courts).

The Labour Forums have exclusive power to enforce LRA rights (to the exclusion of the high courts).

·The high court and the Labour Court both have the power to enforce common law contractual rights.

The high court and the Labour Court both have the power to enforce common law contractual rights.

·The high court and the Labour Court both have the power to enforce constitutional rights so far as their infringement arises from employment.’

The high court and the Labour Court both have the power to enforce constitutional rights so far as their infringement arises from employment.’

[27] In light of the above authority, it is apparent that although the factual basis for the claims remain the same, there may be rights that could give rise to different claims that could be enforced in different forums. It is further apparent that although theLabour Forums have exclusive power to enforce LRA rights, thisCourt and the High Court have concurrent jurisdiction to enforce rights claimed under contractual breaches. Therefore, in an unfair dismissal dispute, a claim arises under the LRA for the enforcement of the applicant’s right to fair labour practices and also under the BCEA for the breach of the employment contract.

Labour Forums have exclusive power to enforce LRA rights, this

[28] Thus, the enforcement of a right under the one does not extinguish the Applicants right to claim under the other[14]. It follows then that the Applicant was well within his rights to bring two claims, one under the unfair dismissal dispute resolution

mechanisms under the LRA and the other for breach of contract in terms of the BCEA. However, it needs to be stated from the onset that although the Applicant may have a right to pursue a contractual claim, such right merely gets him to the door as the matter would still be determined on the merits thereof. This was confirmed by the Labour Appeal Court (LAC) inArcher v Public School-Pinelands High School and Others[15], where it held as follows:

[28] Thus, the enforcement of a right under the one does not extinguish the Applicants right to claim under the other

. It follows then that the Applicant was well within his rights to bring two claims, one under the unfair dismissal dispute resolution

mechanisms under the LRA and the other for breach of contract in terms of the BCEA. However, it needs to be stated from the onset that although the Applicant may have a right to pursue a contractual claim, such right merely gets him to the door as the matter would still be determined on the merits thereof. This was confirmed by the Labour Appeal Court (LAC) in

Archer v Public School-Pinelands High School and Others

, where it held as follows:

‘[17] Despite the adverse finding in the CCMA, the appellant was entitled to pursue his contractual claim in the Labour Court as it has a different cause of action from his unfair dismissal claim under the LRA. By virtue of this, it is immaterial that the CCMA dismissed the appellant’s unfair dismissal claim, and that that decision was not taken on review to the Labour Court. Even if it was, the appellant would have still been entitled to pursue his contractual claim in the Labour Court, because it was a completely different claim from the one that was dismissed in the CCMA.

[17] Despite the adverse finding in the CCMA, the appellant was entitled to pursue his contractual claim in the Labour Court as it has a different cause of action from his unfair dismissal claim under the LRA. By virtue of this, it is immaterial that the CCMA dismissed the appellant’s unfair dismissal claim, and that that decision was not taken on review to the Labour Court. Even if it was, the appellant would have still been entitled to pursue his contractual claim in the Labour Court, because it was a completely different claim from the one that was dismissed in the CCMA.

[18] The upshot of this is that the appellant was not precluded by the principle of res judicata from pursuing his two claims in different fora. This is because the claim that was before the Labour Court, and the one that was pursued in the CCMA were not the same claims. The one is for payment of damages arising from a purported breach of contract by the first and second respondents, and the other is for compensation arising from an unfair dismissal as envisaged under the LRA.’

[29] In light of the above authorities, an applicant is entitled to bring an action for both contractual and LRA claims simultaneously or after one another. The only requirement is that the contractual claim must be based on an expressed or implied term of the employment contract and the applicant can not rely on fairness as a basis for the claim.[16]

[29] In light of the above authorities, an applicant is entitled to bring an action for both contractual and LRA claims simultaneously or after one another. The only requirement is that the contractual claim must be based on an expressed or implied term of the employment contract and the applicant can not rely on fairness as a basis for the claim.

[30] In the current matter, the Applicant’s claim was based on the alleged breach of his contractual right to have a formal disciplinary enquiry convened prior to his dismissal.The term of the contract relied upon by the applicant is clause 18, which records the applicable policies of the respondent, including the disciplinary policy that provides for the conducting of a disciplinary hearing. The applicant further relies on clause 19,

which provides that:

The term of the contract relied upon by the applicant is clause 18, which records the applicable policies of the respondent, including the disciplinary policy that provides for the conducting of a disciplinary hearing. The applicant further relies on clause 19,

which provides that:

‘19.1 The employee will be subjected to the company’s disciplinary procedure, code of conduct and policies as determined from time to time.’[17]

19.1 The employee will be subjected to the company’s disciplinary procedure, code of conduct and policies as determined from time to time.’[17]

[31] To an extent that the Applicant relied not upon the fairness of his dismissal, but on a breach of an expressed term in his employment contract and in light of the aforementioned authorities, the Respondent’s first pointin liminestands to be dismissed. This then brings into the fore the second pointin limine.

in limine.

Whether the settlement agreement reached extinguish the Applicant’s contractual claim?

[32] There is a dispute on what claim was actually settled by the settlement agreement. On one hand, the Applicant submitted that he accepted the eight months salary pay out to settle the dispute at the CCMA, being the unfair dismissal dispute under case numberGATW19832/19 only.

[32] There is a dispute on what claim was actually settled by the settlement agreement. On one hand, the Applicant submitted that he accepted the eight months salary pay out to settle the dispute at the CCMA, being the unfair dismissal dispute under case number

GATW19832/19 only.

[33] On the other hand, the Respondents submitted that the settlement agreement settled the unfair dismissal dispute under case number GATW19832/19 as well as all claims emanating from the termination of the employment contract because he did not resist or refund the settlement amount.

[34] It is trite that when interpreting any contract, the Court must be guided by the principles set down inNatal Joint Municipal Pension Fund v Endumeni Municipality[18]where the Supreme Court of Appeal (SCA) summarised the law as follows:

[34] It is trite that when interpreting any contract, the Court must be guided by the principles set down in

Natal Joint Municipal Pension Fund v Endumeni Municipality

where the Supreme Court of Appeal (SCA) summarised the law as follows:

‘[18] … The present state of the law can be expressed as follows:

[18] … The present state of the law can be expressed as follows:

Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.’

[35] In light of the above authority, it is apparent that when interpreting a settlement agreement, the Court ought to take cognisance of the ordinary wording of same and the context in which the settlement agreement was concluded. InEke v Parsons[19], the Constitutional Court stated that:

[35] In light of the above authority, it is apparent that when interpreting a settlement agreement, the Court ought to take cognisance of the ordinary wording of same and the context in which the settlement agreement was concluded. In

Eke v Parsons

, the Constitutional Court stated that:

‘[19] … In certain instances, agreement – or lack of it – on certain terms may mean the difference between an end to litigation and a protracted trial. Negotiations with a view to settlement may be

so wide-ranging as to deal with issues that, although not strictly at issue in the suit, are related to it – whether directly or indirectly – and are of importance to the litigants and require resolution. Short of mere formalism, it does not seem to serve any practical purpose to suggest that these issues should be excised from an agreement that a court sanctions as an order of court.

[19] … In certain instances, agreement – or lack of it – on certain terms may mean the difference between an end to litigation and a protracted trial. Negotiations with a view to settlement may be

so wide-ranging as to deal with issues that, although not strictly at issue in the suit, are related to it – whether directly or indirectly – and are of importance to the litigants and require resolution. Short of mere formalism, it does not seem to serve any practical purpose to suggest that these issues should be excised from an agreement that a court sanctions as an order of court.

[22] Surely then, an expedited end to litigation may not only be in the parties’ interest, it may also serve the interests of the administration of justice. This finds support at common law. Le Grange quotes Huber with approval:

“A compromise once lawfully struck is very powerfully supported by the law, since nothing is more salutary than the settlement of

lawsuits.”’

A compromise once lawfully struck is very powerfully supported by the law, since nothing is more salutary than the settlement of

lawsuits.”’

[36] In the current matter, the Respondents alleged, that the settlement agreement concluded between the parties settled the dispute at the CCMA as well as any and all future claims the applicant may have emanating from the termination of the employment contract. In essence, the Respondents claimed that the Applicant waived the rights he may have to all future claims emanating from the termination of his employment.

[37] When interpreting an agreement in terms of which the one party claims that the other party had waived its rights in terms of future claims, the Court must not infer waiver or settlement of future claims lightly.[20]InLufuno Mphaphuli and Associates v Andrews and Another[21],the Constitutional Court stated that:

[37] When interpreting an agreement in terms of which the one party claims that the other party had waived its rights in terms of future claims, the Court must not infer waiver or settlement of future claims lightly.[20]In

Lufuno Mphaphuli and Associates v Andrews and Another

the Constitutional Court stated that:

‘[81] …Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the wavier be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver; it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish.’

[81] …Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the wavier be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver; it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish.’

[38] As aforesaid, when interpreting a settlement agreement the Court ought to look at what was written firstly and give it its grammatical meaning. Thereafter, the Court ought to consider the context in which the agreement was made and whether what was settled was directly connected to the dispute at hand. As found inEkea settlement can be wide ranging, and therefore it should be interpreted as though the parties sought to end litigation. It is for this reason that the intention of the party waiving its rights to future claims is important and must be determined objectively.

[39] In the current matter, there was no formal settlement agreement and the only evidence of the agreement before the Court was in the form of the email exchange between the parties, which sought to condense the settlement agreement. In the email of 16 March 2020 in which the Applicant proposed a settlement, the salient term is “to settle the unfair dismissal dispute under GATW19832/19.”It is clear from the reading of the Applicant’s email that his intention was to only settle the dispute under GATW 19832/19.

to settle the unfair dismissal dispute under GATW19832/19.”

[40] Nevertheless, the Respondents sought clarity in an email wherein they stated that the settlement was “is in respect of the CCMA unfair dismissal claim under GATW19832/19 and all claims arising out of the termination of your client’s employment by our client on 29 November 2019.” However, this was immediately disputed by the Applicant who stated that the settlement offer was only in regard to the dispute under case number GATW19832/19 and highlighted that “the settlement proposal of 16 March 2020, as requested by yourself, should be read as per our email of 16 March 2020”.

is in respect of the CCMA unfair dismissal claim under GATW19832/19 and all claims arising out of the termination of your client’s employment by our client on 29 November 2019.

the settlement proposal of 16 March 2020, as requested by yourself, should be read as per our email of 16 March 2020

[41] In addition, the Applicant counter proposed that should the Respondents “wish to settle any and all disputes of whatsoever nature relating to the employment relationship between our client and yours, our client is willing to accept 14 months in full and final settlement of all such disputes.” This is a clear recording of the Applicant’s intention. The settlement proposal was that eight months compensation was to settle the dispute under case number GATW19832/19 and 14 months compensation was to settle all claims emanating from the termination of the employment contract. Having read the Applicant’s counter proposal, the Respondents elected to effect payment of eight months salary.

wish to settle any and all disputes of whatsoever nature relating to the employment relationship between our client and yours, our client is willing to accept 14 months in full and final settlement of all such disputes

[42] In interpreting whether a settlement agreement made at the CCMA extinguished all claims emanating from the termination of the employee’s employment contract, the Court inDe Lange v Kosmosdal Ext 61 and Ext 62 Homeowners Association Brooklands 3 Lifestyle Estate[22]found that the phrase “in full and final settlement of the said matter”, in the context of its conclusion, could only mean that:

[42] In interpreting whether a settlement agreement made at the CCMA extinguished all claims emanating from the termination of the employee’s employment contract, the Court in

De Lange v Kosmosdal Ext 61 and Ext 62 Homeowners Association Brooklands 3 Lifestyle Estate

found that the phrase “

in full and final settlement of the said matter

”, in the context of its conclusion, could only mean that:

‘[13] In short: the settlement agreement resolved only the dispute referred to the CCMA, that

concerning an unfair dismissal. The agreement did not extend to the settlement of any other dispute that may have had its roots in the termination of employment, and certainly not any claim for contractual damages consequent on a material breach of the contract

by the defendant.’

[13] In short: the settlement agreement resolved only the dispute referred to the CCMA, that

concerning an unfair dismissal. The agreement did not extend to the settlement of any other dispute that may have had its roots in the termination of employment, and certainly not any claim for contractual damages consequent on a material breach of the contract

by the defendant.’

[43] In the current matter, looking at the context in which the settlement agreement was concluded, the ordinary grammatical meaning and the intentions of the parties, it is apparent that the settlement agreement only resolved the dispute referred to the CCMA and not all claims emanating from the termination of the employment contract. In light thereof, the second pointin liminefalls to be dismissed. What remains for determination are the merits of the application.

Merits of the application

[44] In this regard, the Applicant’s argument was two-fold. Mainly, he argues that there was no valid reason for the termination of his contract in that he did not breach same. Therefore, he alleged that the Respondents had no reason to terminate his contract because, in failing to disclose his prior criminal record, he did not commit a misconduct. In the alternative, he argued that even if he had committed misconduct, which he denied, the Respondents breached the employment contract by not following the correct procedure to terminate it.

Main relief sought

[45] In paragraphs one to three of the notice of motion, the Applicant sought to have the termination of his employment contract declared unlawful. In this regard, the Applicant submitted that the Respondents were mistaken in relying on clause 15 of the contract of employment to terminate his employment as it specifies the circumstances that may constitute misrepresentation resulting in a dismissal and did not mention the disclosure of a criminal record. Clause 15 provides as follows:

‘The employee warrants that all the pre-employment representations made by him/her regarding qualifications, work experience and fitness for the job are true in all material respects, and acknowledges that any misrepresentation in this regard may constitute a ground for dismissal.’[23]

The employee warrants that all the pre-employment representations made by him/her regarding qualifications, work experience and fitness for the job are true in all material respects, and acknowledges that any misrepresentation in this regard may constitute a ground for dismissal.’[23]

[46] Furthermore, the Applicant submitted that during the recruitment process for the position of Senior Legal Counsel, he was not asked to disclose whether or not he had a criminal record. According to him, even if he could have been asked such question (which was not the case in this matter) he would have answered in the negative as his criminal record was expunged in terms of section 271 of the CPA prior to the post being advertised.

[47] The Applicant further submitted that the Respondents unlawfully and summarily dismissed him whilst they were fully conversant with the fact that his criminal record was already expunged when it received the written submissions from his legal representatives on 29 November 2019 and that the expungement of his criminal record made it clear that he was not obliged to reveal or state any criminal record as such will be envisaged aspro non scriptio.

[47] The Applicant further submitted that the Respondents unlawfully and summarily dismissed him whilst they were fully conversant with the fact that his criminal record was already expunged when it received the written submissions from his legal representatives on 29 November 2019 and that the expungement of his criminal record made it clear that he was not obliged to reveal or state any criminal record as such will be envisaged as

pro non scriptio

[48] Regarding the Principal Investigator’s position, the applicant submitted that the position was never offered to him through the recruitment process but rather as a settlement of a promotional dispute.

[49] This was clearly the same cause of action as the matter that was referred to the CCMA under the unfair dismissal dispute. InSteenkamp and others (National Union of Metalworkers of South Africa intervening) v Edcon Ltd[24], the Constitutional Court found that the LRA did not cater for unlawful dismissals. This Court inSinghala v Ernst and Young Incorporated and another[25]in applying the principle inSteenkampstated that:

[49] This was clearly the same cause of action as the matter that was referred to the CCMA under the unfair dismissal dispute. In

Steenkamp and others (National Union of Metalworkers of South Africa intervening) v Edcon Ltd

, the Constitutional Court found that the LRA did not cater for unlawful dismissals. This Court in

Singhala v Ernst and Young Incorporated and another

in applying the principle in

Steenkamp

stated that:

‘[15] Regard being had to the provisions of section 23, it is clear that the Constitution sought to protect all the workers of South Africa using fairness as a yardstick. It could not have escaped the drafters of the Constitution that another right to protect is the right to be dismissed lawfully. It will make no sense for the Constitution to protect fair labour practice and at the same time protect the so-called unlawful or invalid dismissals. The LRA defines what a dismissal is. It can be observed from the definition that threads of fairness are built in.’

[15] Regard being had to the provisions of section 23, it is clear that the Constitution sought to protect all the workers of South Africa using fairness as a yardstick. It could not have escaped the drafters of the Constitution that another right to protect is the right to be dismissed lawfully. It will make no sense for the Constitution to protect fair labour practice and at the same time protect the so-called unlawful or invalid dismissals. The LRA defines what a dismissal is. It can be observed from the definition that threads of fairness are built in.’

[50] The Applicant has already referred a dispute under the LRA and therefore the relief sought by him in paragraphs one to three are not competent and falls to be dismissed. This then only leaves the Applicant’s alternative claim.

Alternative relief sought

[51] It was the Applicant’s submission that the Respondents had unlawfully terminated the contract of his employment whilst he was still left with 20 months before it could expire. The term of the contract relied upon by the Applicant is clause 18, which records the applicable policies of the Respondent that include the disciplinary policy that provides for the conduct of a disciplinary hearing. The Applicant further relies on clause 19, which provides that:

‘19.1 The employee will be subjected to the company’s disciplinary procedure, code of conduct and policies as determined from time to time.’

19.1 The employee will be subjected to the company’s disciplinary procedure, code of conduct and policies as determined from time to time.’

[52] The Respondents submitted that although the Applicant’s claim was based on an alleged breach of a contractual right to a formal disciplinary inquiry, he failed to demonstrate that he had such a right. According to the Respondents, they had discretion to whether or not subject the Applicant to a disciplinary hearing because clause 6 of the Competition Commission’s Disciplinary Policy, on which the Applicant relies, provides that in a case of serious misconduct, “the employermayinstitute a disciplinary inquiry”[26].

[52] The Respondents submitted that although the Applicant’s claim was based on an alleged breach of a contractual right to a formal disciplinary inquiry, he failed to demonstrate that he had such a right. According to the Respondents, they had discretion to whether or not subject the Applicant to a disciplinary hearing because clause 6 of the Competition Commission’s Disciplinary Policy, on which the Applicant relies, provides that in a case of serious misconduct, “the employer

institute a disciplinary inquiry”[26].

[53] The Respondents further submitted that it was clear that they observed theaudi alteram partemrule as the Applicant was given an opportunity, prior to the termination of his employment, to make written representations as to why he should not be dismissed and being legally represented, accepted that invitation without objection and made representations. It was for this reason that they argued that the Applicant was afforded an opportunity to be heard and that he failed to establish that there was a breach of any contractual right in the process. Accordingly, it was the Respondents’ submission that the Applicant’s claim was without merit.

audi alteram partem

[54] The Applicant disavows reliance on the fairness of his dismissal in terms of the LRA and therefore, it is not for this Court to determine whether the procedure undertaken by the Respondents was a fair procedure. Instead, the Court must determine whether in following such procedure the Respondents breached the employment contract. InDenel (Pty) Ltd v Vorster[27],the SCA stated that:

[54] The Applicant disavows reliance on the fairness of his dismissal in terms of the LRA and therefore, it is not for this Court to determine whether the procedure undertaken by the Respondents was a fair procedure. Instead, the Court must determine whether in following such procedure the Respondents breached the employment contract. In

Denel (Pty) Ltd v Vorster

the SCA stated that:

‘…If the new constitutional dispensation did have the effect of introducing into the employment relationship a reciprocal duty to act fairly it does not follow that it deprives contractual terms of their effect. Such implied duties would operate to ameliorate the effect of unfair terms in the contract, or even to supplement the contractual terms where necessary, but not to deprive a fair contract of its legal effect. The procedure provided for in the disciplinary code was clearly a fair one – it would hardly be open to the appellant to suggest that it was not – and the respondent was entitled to insist that the appellant abide by its contractual undertaking to apply it. It is no answer to say that the alternative procedure adopted by the appellant was just as good.’

If the new constitutional dispensation did have the effect of introducing into the employment relationship a reciprocal duty to act fairly it does not follow that it deprives contractual terms of their effect. Such implied duties would operate to ameliorate the effect of unfair terms in the contract, or even to supplement the contractual terms where necessary, but not to deprive a fair contract of its legal effect. The procedure provided for in the disciplinary code was clearly a fair one – it would hardly be open to the appellant to suggest that it was not – and the respondent was entitled to insist that the appellant abide by its contractual undertaking to apply it. It is no answer to say that the alternative procedure adopted by the appellant was just as good.’

[55] In light of the above authority, it follows that the Respondents were bound to terminate the contract in a way provided for in the employment contract and following a procedure outside that provided for in the contract could constitute a breach of the contract. The question that then arises is whether the Respondents were contractually required to convene a formal disciplinary inquiry. In so doing, the Court ought to look to expressed terms over implied ones.[28]

[56] According to the Collins dictionary the word “may” connotes an indication that something will possibly happen in the future but it cannot be certain. In legal terms the word “may”is defined as “a choice to act or not, or a promise of a possibility.”[29]Therefore, the use of the word “may”means that the act is optional and not mandatory.

[56] According to the Collins dictionary the word “

” connotes an indication that something will possibly happen in the future but it cannot be certain. In legal terms the word “

is defined as “

a choice to act or not, or a promise of a possibility.”

Therefore, the use of the word “

means that the act is optional and not mandatory.

[57] Therefore, looking through the contractual lens and not one of fairness, the ordinary grammatical meaning[30]of the clause is that it is not a precondition for termination that a disciplinary inquiry be held, but that it might be held. Therefore, the only meaning of the clause is that it was the prerogative of the First Respondent to hold a disciplinary inquiry prior to the termination of the Applicant’s employment contract.

Conclusion

[58] It is trite that when an employee claims under breach of contract it is to the exclusion of his/her rights under the LRA. Therefore, when interpreting the contract of employment, fairness does not feature. Looking at the grammatical meaning of the clause, which is an expressed term in the contract of employment, the respondents had a choice whether to hold the disciplinary inquiry. Therefore, the Applicant’s claim falls to be dismissed.

[59]With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[60] Accordingly, the following order is made:

Order:

1. The application is dismissed.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate Moropeni

Instructed by: Finck

Attorneys

For the respondent: Advocate Redding SC

Instructed by: Cheadle

Thompson and Haysom Incorporated Attorneys

[1]Pleadings Index, p 1-2.

Pleadings Index, p 1-2.

[2]Act 89 of 1998, as amended.

Act 89 of 1998, as amended.

[3]Pleadings Index, p62.

Pleadings Index, p62.

[4]Act51 of 1997, as amended.

[4]Act

51 of 1997, as amended.

[5]Pleadings Index, p 113.

Pleadings Index, p 113.

[6]Pleadings Index, p 113.

[7]Pleadings Index, p 115.

Pleadings Index, p 115.

[8]Pleadings Index, p 116.

Pleadings Index, p 116.

[9]Pleadings Index, p 118.

Pleadings Index, p 118.

[10]Pleadings Index, p120 – 121.

Pleadings Index, p120 – 121.

[11]Pleadings Index, p 122.

Pleadings Index, p 122.

[12]Act 66 of 1995, as amended.

Act 66 of 1995, as amended.

[13][2009] 8 BLLR 721 (SCA)

[14]See also:Gcaba v Minister of Safety and Security and Others[2009] 12 BLLR 1145 (CC).

See also:

Gcaba v Minister of Safety and Security and Others

[2009] 12 BLLR 1145 (CC).

[15][2020] 3 BLLR 235 (LAC).

[16]See:Fedlife Assuarance Ltd v Wolfaardt[2001] 12 BLLR 1301 (SCA).

Fedlife Assuarance Ltd v Wolfaardt

[2001] 12 BLLR 1301 (SCA).

[17]Pleadings Index, p 37.

Pleadings Index, p 37.

[18]2012 (4) SA 593(SCA) at para 18 p. 603 – 604.

2012 (4) SA 593

[19]2016 (3) SA 37 (CC).

2016 (3) SA 37 (CC).

[20]See:CP de Leeuw Johannesburg (Pty) Ltd v Wheelwright and others(J 229/22) [2022] ZALCJHB 107 (30 May 2022).

CP de Leeuw Johannesburg (Pty) Ltd v Wheelwright and others

(J 229/22) [2022] ZALCJHB 107 (30 May 2022).

[21]2009 (4) SA 529(CC) at para 81.

2009 (4) SA 529

[22](JS172/15) [2016] ZALCJHB 481 (4 April 2016) at para 12. See also:Stefan Adriaan de Villiers v City of Tshwane Metropolitan Municipality(Unreported decision) Case number: JS300/2021. Delivered: 24 May 2022.

[22](JS172/15) [2016] ZALCJHB 481 (4 April 2016) at para 12. See also:

Stefan Adriaan de Villiers v City of Tshwane Metropolitan Municipality

(Unreported decision) Case number: JS300/2021. Delivered: 24 May 2022.

[23]Pleadings Index, p 36.

Pleadings Index, p 36.

[24][2016] 4 BLLR 335 (CC).

[25][2019] 5 BLLR 494 (LC)

[26]Pleadings Index, p 67.

Pleadings Index, p 67.

[27][2005] 4 BLLR 313(SCA) at para 16

[2005] 4 BLLR 313(SCA) at para 16

[2005] 4 BLLR 313

[28]fn 18 supra, para 15.

fn 18 supra, para 15.

[29]See: https://dictionary.law.com

See: https://dictionary.law.com

[30]See: Principles of interpreting a contract (id fn 8).

See: Principles of interpreting a contract (id fn 8).