Reddy v Airports Company South Africa & others (J 597/2021) [2021] ZALCJHB 99 (7 June 2021)

THE

LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

Case No: J 597/2021

In the matter between:

KISTHAPPA REDDY

Applicant

and

AIRPORTS COMPANY SOUTH

AFRICA First Respondent

TERRY MOTAU SC N.O Second Respondent

NAZEER CASSIM SC N.O

Third Respondent

TENEILLE GOVENDER N.O

Fourth Respondent

Application heard: 4 June 2021

Date of judgment: 7 June 2021. Judgment delivered electronically.

JUDGMENT

[1] The applicant seeks an order, on an urgent basis, declaring that the first respondent’s institution of a fresh disciplinary hearing against the applicant by way of notice dated 24 May 2021 is in breach of the settlement agreement concluded between the parties on 2 October 2019.

[2] The material facts are not in dispute. The applicant is employed by the first respondent as an assistant general manager responsible for operations. The applicant was employed on 1 April 2013. On 19 June 2019, the applicant was suspended pending an investigation into alleged misconduct relating to the applicant’s role in the conclusion of a service agreement between the first respondent and Plan-B Trolley Engineering and Operations., and his signature on an assignment and novation agreement between the contracting parties. On 2 September 2019, the first respondent issued a notice to attend a disciplinary hearing on charges related to the above agreements. After discussions between the parties, a settlement agreement was concluded on 1 October 2019. The terms of the settlement agreement provide that the applicant would be issued with a written warning valid for six months, which the employee accepted. His suspension was uplifted and it was agreed that he would report for duty on 3 October 2019.

[3] The applicant contends that the settlement agreement makes clear that he had been subjected to a disciplinary hearing process for the role which he allegedly played in relation to the conclusion of the planned agreements, that he was sanctioned for that role, and that it would amount to a breach of the settlement agreement for the first respondent to suspend and seek to discipline the applicant again for the same offence. After the conclusion of the settlement agreement, the written warning contemplated by clause 3 of the agreement was issued, the first respondent uplifted the applicant suspension and he reported for duty with effect from 3 October 2019. In this sense, both parties have complied with the settlement agreement, which has been fully implemented.

[4] On 25 May 2021, the first respondent suspended the applicant and issued a notice requiring him to attend a disciplinary hearing scheduled to commence on 9 June 2021. The subject of the charges concerns the conclusion of the Plan B agreements; it is not disputed that these are the same charges that formed the subject of the settlement agreement.

[5] The first respondent opposes the application on the basis that the settlement agreement is void ab initio by reason of lack of authority – it contends that the representative who signed the agreement on its behalf, a Mr André Vermeulen, was not authorised in terms of the applicable delegations of authority, to conclude it. The first respondent avers further that the settlement agreement is contrary to the public finance Management act, 1999, which provides that a disciplinary hearing must be held in instances where financial misconduct has been committed. The first respondent also disputes that the written warning was issued. The first respondent avers further that the applicant entered into the Plan B service agreement well-knowing that he was contracting with the incorrect party, and that in the circumstances, he committed misconduct in the form of theft and fraud.

[6] The first respondent frames the issue for decision this way: –

30. The court ultimately has to decide whether the applicant who is accused of defrauding, alternatively being complicit in defrauding his employer, will ever face the charges, will be able to hide behind a settlement agreement which was entered into without the requisite authority and which endorses a sanction which is not only irrational, but was never implemented.

[7] Put another way, the outcome of these proceedings is dependent on a finding as to whether the settlement agreement was concluded with the requisite authority, and whether the penalty for which it provided was actually implemented. What is apparent to me from the papers and from this formulation of the issue in dispute is that there is a material dispute of fact in relation to both whether the settlement agreement was entered into with the necessary authority, and whether the penalty for which it provided was never implemented. Motion proceedings are not suited to the determination of material disputes of fact (Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366 (A)). In National Director of Public Prosecutions v Zuma (Mbeki and another intervening) [2009] 2 All SA 243 (SCA), the Supreme Court of Appeal said the following in relation to judging facts in motion proceedings:

[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon Evans rule that where motion proceedings dispute of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s (Mr. Zuma’s) affidavits which have been admitted by the respondent (the NDDP) together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched also clearly untenable that the court is justified in rejecting them merely on the papers.

[8] This is not a matter in which the Plascon Evans rule can be applied – whether Vermeulen was authorized to sign the settlement agreement invites an enquiry into the nature and basis of the authority that was exercised or purportedly exercised, the basis for any denial of that authority, whether the facts establish any basis for ostensible authority, and the like. Similarly, whether the written warning was in fact issued can be relatively easily determined by evidence. The facts as determined in respect of both of these issues are potentially dispositive of the application. The court has a broad discretion to refer a matter to oral evidence, on specified issues and with the view to resolving any dispute of fact. This approach is ordinarily adopted within a narrow compass where the factual dispute can be expeditiously disposed of.

I make the following order:

1 The following dispute is referred to oral evidence:

a. Whether the first respondent’s representative and signatory to the settlement agreement concluded between the applicant and the first respondent on 2 October 2019, was authorised to conclude the agreement on behalf of the first respondent.

b. Whether the penalty of a written warning valid for a period of six months contemplated by clause 3 of the settlement agreement was issued to the applicant.

2. Pending the outcome of the hearing, the first respondent is interdicted from continuing with any disciplinary enquiry against the applicant based on the notice issued on 25 May 2021.

3. The costs of the application are reserved for determination by the trial court hearing oral evidence.

4. The provisions of Rule 6 relating to pre-trial conferences, the furnishing of affidavits by additional witnesses and annexures and the exchange of documentation not presently part of the papers, shall apply.

5. The registrar is directed to enroll the matter for hearing on an expedited basis.

André van Niekerk

Judge of the Labour Court of South Africa

REPRESENTATIVES

For the applicant: Adv K Tsatsawane SC, with him Adv R Ramatselela, instructed by HM Chaane Attorneys

For the first respondent: Adv N Cassim SC, instructed by Tshiqi Zedediela Inc