Security, Cleaning, Manufacturing and Allied Workers Union v NSA Security Services (Pty) Ltd (J 2021/10) [2011] ZALCJHB 252 (8 September 2011)

Security, Cleaning, Manufacturing and Allied Workers Union v NSA Security Services (Pty) Ltd (J 2021/10) [2011] ZALCJHB 252 (8 September 2011)

The court found that the written settlement agreement made no reference to a transfer to Mpumalanga and expressly required the applicant to report for duty at the Germiston office. The respondent failed to establish, on a balance of probabilities, that a tacit or collateral oral term existed making reinstatement conditional on accepting a transfer. The respondent's version contradicted the unconditional terms of the written agreement, and the parol evidence rule precluded reliance on an oral agreement that altered those terms. Consequently, the respondent did not comply with the settlement agreement by insisting on a transfer and is liable to pay the applicant arrear wages for failing to...

Citation
[2011] ZALCJHB 252
Parties
Applicant: Security, Cleaning, Manufacturing and Allied Workers Union; Respondent: NSA Security Services (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2011
Case Number
J 2021/10
Procedural Posture
Urgent Application / Order and Reasons Following Urgent Application to Make Settlement Agreement an Order of Court
Outcome
The settlement agreement is made an order of court. The respondent is ordered to pay the applicant arrear wages for failure to reinstate as agreed.
Judges
Lagrange
Legal Topics
Settlement Agreement, Reinstatement, Tacit Terms, Collateral Oral Agreement, Unfair Dismissal
Labour Law Civil Procedure Settlement Agreement Reinstatement Tacit Terms Collateral Oral Agreement Unfair Dismissal

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Parties

Security, Cleaning, Manufacturing and Allied Workers Union

Applicant

NSA Security Services (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Order and Reasons Following Urgent Application to Make Settlement Agreement an Order of Court

Legal Issues

  1. 1 Whether the settlement agreement concluded at the CCMA included a tacit or collateral oral term requiring the applicant to accept a transfer to Mpumalanga as a condition of reinstatement.
  2. 2 Whether the respondent complied with the settlement agreement by insisting on the applicant's transfer to Mpumalanga.
  3. 3 Whether the respondent is liable to pay arrear wages for failing to reinstate the applicant in accordance with the agreement.

Ratio Decidendi

The court found that the written settlement agreement made no reference to a transfer to Mpumalanga and expressly required the applicant to report for duty at the Germiston office. The respondent failed to establish, on a balance of probabilities, that a tacit or collateral oral term existed making reinstatement conditional on accepting a transfer. The respondent's version contradicted the unconditional terms of the written agreement, and the parol evidence rule precluded reliance on an oral agreement that altered those terms. Consequently, the respondent did not comply with the settlement agreement by insisting on a transfer and is liable to pay the applicant arrear wages for failing to...

Court Disposition

The settlement agreement is made an order of court. The respondent is ordered to pay the applicant arrear wages for failure to reinstate as agreed.

Orders

  • The settlement agreement entered into between the applicant and respondent on 8 September 2010 under case number GAJB 22380/10 before Commissioner L Dlamini of the CCMA is made an order of court.
  • The respondent is ordered to pay the individual applicant, Mr S Ndlala, his arrear wages due from the date of the agreement to the date of this order for failure to reinstate as agreed.