Reitzer Pharmaceuticals (Pty) Ltd v Makwela N.O and Others (JR1295/20) [2024] ZALCJHB 272 (22 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No.: JR1295/20

In the matter between: REITZER PHARAMACEUTICALS (PTY) LTD Applicant And MATHABO MAKWELA N.O. (CITED IN HIS CAPACITY AS COMMISSIONER OF THE COMMISSION FOR CONCILIATION, MEDICATION AND ARBITRATION First Respondent THE COMMISSIONER FOR CONCILIATION, MEDIATION AND ARBITRATION SENZO SENKOSI LIVETON ZULU Second Respondent Third Respondent

Heard: 26 March 2024

Delivered: 22 July 2024

Summary: This is an unopposed review application in circumstances where the Third Respondent had been employed as a blender in a pharmaceutical factory and had worked on expensive machinery on which the operation of the Application dependent. The Third Respondent and the Applicant entered into an agreement whereby the Applicant’s employment contract with the Third Respondent was voluntarily terminated. Notwithstanding this the Commissioner in the matter, the First Respondent came to the conclusion that the termination contract had been entered into in such a way that it suffered from a defect of the nature of cohesion and the like. The Commissioner decision is reasonable.

JUDGMENT

SNIDER, AJ

[1] The Applicant is a manufacturer of pharmaceuticals and uses expensive machines which, if they are broken, not only require repairs which can be expensive, but also reduce the Applicant’s production in the sense that during the period that they are not operational the Applicant does not function as efficiently as it should.

[2] The Applicant’s version is that on 14 February 2020 the Third Respondent was operating one of the machines referred to above, which cost millions of rands[1]. Damage to the machine occurred and the third Respondent was accused of being responsible for the damage, which resulted in financial loss to the Applicant. This was very seriously viewed and considered to be a disciplinary offence by the Applicant.

[3] The Applicant was considering charges of misconduct, and the matter was being investigated by the Applicant’s Labour Consultant. The Labour Consultant suggested to the Third Respondent that he enter into a voluntary termination agreement with the Applicant instead of being subjected to disciplinary charges.

[4] The Third Respondent considered the proposal and accepted it. He read and signed the voluntary termination agreement.

[5] The matter went to arbitration and a finding was made in favour of the Third Respondent on the basis, in essence, that some pressure, in the nature of duress or “oppression” had been brought to bear on the Third Respondent. The Third Respondent had also gone to speak to Elsabe Potgieter (Potgieter), who is the deponent to the Applicant’s founding affidavit in this matter, and the Applicant’s Operations Manager who explained the voluntary termination agreement to him. On the First Respondent’s part, the evidence as a whole, including the evidence of the labour consultant, Elsabe Potgieter and the Third Respondent indicated that there was some form of oppression which caused the Third Respondent to sign the voluntary termination agreement. This finding was based on the Third Respondent not being represented and not given the opportunity to take the agreement home with him to consider with his family. There was then a finding of a dismissal and an order of reinstatement and compensation made by the First Respondent.

[6] There certainly is evidence, particularly that of the Third Respondent, that the Third Respondent signed the voluntary

termination agreement under duress.

[7] The First Respondent finds that Potgieter explained the positive and negative consequences of the agreement to the Third Respondent. It does however appear from a conspectus of the evidence as a whole that the Third Respondent was given no real choice but to sign the voluntary termination agreement. Negative alternatives may well have been used to coerce the Third Respondent to do so, and the First Respondent, having heard the evidence first hand, came to the conclusion that there was a level of duress / coercion or the like. Her findings are certainly well within the band of findings that are sustainable, and are not reviewable.

[8] The entire review is really based on an attack of the First Respondent’s analysis of the evidence. I am of the view that this attack is not sustained by the papers or the evidence referred to.

[9] The Applicant did wish to terminate its relationship with the Third Respondent, and that is innocuous. However, it did so by entering into a voluntary termination agreement which was concluded in a way which put pressure on the Third Respondent. This was the considered finding of the First Respondent.

[10] Contrary to the affidavit and submissions of the Applicant, the First Respondent did consider whether there was a dismissal and whether the dismissal was fair, both substantively and procedurally.

[11] The point raised by the Applicant that the Third Respondent was literate is neither here nor there. The finding is that he was pressurised and there was cogent evidence to that effect.

[12] The allegations made on behalf of the Applicant do not coincide with the contents of the award. The award is carefully structured and deals with all of the evidence in a proper and well considered manner. Ultimately, the Arbitrator found that notwithstanding evidence to the contrary, and notwithstanding that there may well have been interaction between Potgieter and the Applicant, the Applicant, on the authority of the matter Kanku and others and Grindrod Fuelogic[2], which is to the effect that duress can be exerted on an individual without physical violence.

[13] The Arbitrator concluded that there was duress placed on the Third Respondent by the Applicant and indeed it is possible on the basis of the Applicant’s evidence that duress could have emanated from more than one sourced. Potgieter and the labour consultant interacted with the Third Respondent.

[14] I am of the view that this matter does not require a right / wrong test as mooted. I must ask whether the decision reached by the arbitrator is one that a reasonable decision maker could reach, having considered the principal issues before him or her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable. The First Respondent did indeed meet this standard in making the award.

[15] In the premises the review application cannot succeed.

[16] I am however mindful that the Third Respondent has not made any serious meaningful effort to participate in this litigation and seems to have abandoned any participation or involvement in it.

[17] In those circumstances, given my discretion and having had the benefit of the entire record of the matter, including having witnessed the Third Respondent’s disinterest in this litigation, I am of the view that I can give an order which is

different to the First Respondent’s order, but just in the circumstances.

[18] I would find it unjust for the Applicant to have to reemploy the Third Respondent. I base this finding on the provisions of section

193(2)(c) of the Labour Relations Act[3] (the LRA). The LRA, in terms of section 193 clearly favours reinstatement as the primary remedy for an unfair dismissal. However,

section 193(2)(c) provides that if it is not reasonably practicable to reinstate or reemploy an employee, it may not be compelled to do so. In addition to the Third Respondent’s apathy towards the litigation it is also highly impractical to reinstate or reemploy a former employee who was dismissed during or about February 2020, going on 5 years ago.

[19] In the premises the following order is made:

Order

1. The review application is dismissed.

2. The Third Respondent is to be paid an amount equal to four (4) months remuneration as at the date of the termination of his employment.

3. There is no order as to costs.

A. Snider

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: A J Postuma of Snyman Attorneys

For the Respondent: No appearance.

[1] Founding affidavit page 32 paragraph 10

[2] (C602/2014) [2017] ZALCCT 26 (21 June 2017).

[3] No. 66 of 1995, as amended.