Ngubane v Spray Fishing (Pty) Ltd (D642/98) [2002] ZALC 58; (2002) 23 ILJ 2104 (LC); [2003] 1 BLLR 66 (LC) (19 August 2002)

Ngubane v Spray Fishing (Pty) Ltd (D642/98) [2002] ZALC 58; (2002) 23 ILJ 2104 (LC); [2003] 1 BLLR 66 (LC) (19 August 2002)

The court found that the applicant was employed indefinitely to undertake voyages for fixed periods in terms of the articles, with entitlement to a salary while on a voyage and a discretionary benefit when not on a voyage. The respondent was entitled to withdraw the discretionary payment in accordance with the contract. Exhibit A4 did not amount to a dismissal but rather a suspension of the employment contract. The applicant's failure to tender his services before the withdrawal of salary indicated a prima facie election to terminate the employment relationship by his own conduct. The evidence did not support a finding of unfair dismissal or termination by the respondent.

Citation
[2002] ZALC 58
Parties
Applicant: Douglas V Ngubane; Respondent: Spray Fishing (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
19 August 2002
Case Number
D642/98
Procedural Posture
Labour Law Application / Point in Limine; Determination of Employment Contract Status
Outcome
The employment contract was suspended, not terminated, by the respondent. The applicant's conduct prima facie indicated termination by his own election. No order as to costs.
Judges
Pillay
Legal Topics
Fixed Term Contracts, Indefinite Employment, Merchant Shipping Act, Unfair Dismissal, Employment Benefits
Labour Law Fixed Term Contracts Indefinite Employment Merchant Shipping Act Unfair Dismissal Employment Benefits

Case Brief

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Parties

Douglas V Ngubane

Applicant

Spray Fishing (Pty) Ltd

Respondent

Procedural Posture

Labour Law Application / Point in Limine; Determination of Employment Contract Status

Legal Issues

  1. 1 Whether the applicant was employed permanently or on a fixed term contract.
  2. 2 Whether the employment contract between the parties still subsists.
  3. 3 Whether the withdrawal of discretionary payment constituted termination of employment.

Ratio Decidendi

The court found that the applicant was employed indefinitely to undertake voyages for fixed periods in terms of the articles, with entitlement to a salary while on a voyage and a discretionary benefit when not on a voyage. The respondent was entitled to withdraw the discretionary payment in accordance with the contract. Exhibit A4 did not amount to a dismissal but rather a suspension of the employment contract. The applicant's failure to tender his services before the withdrawal of salary indicated a prima facie election to terminate the employment relationship by his own conduct. The evidence did not support a finding of unfair dismissal or termination by the respondent.

Court Disposition

The employment contract was suspended, not terminated, by the respondent. The applicant's conduct prima facie indicated termination by his own election. No order as to costs.

Orders

  • The applicant was employed indefinitely to undertake voyages for fixed periods in terms of the articles.
  • The applicant was entitled to a salary while on a voyage and a discretionary benefit when not on a voyage.