Seroka v Vaal University of Technology (J 146/20) [2022] ZALCJHB 171 (30 June 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 146/20

In the matter between:

SEGOPANE F. SEROKA

Applicant

and

VAAL

UNIVERSITY OF TECHNOLOGY

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 by email. The date for hand-down is deemed to be 30 June 2022

JUDGMENT

MAHOSI, J

Introduction

[1] The applicant, Segopane R Seroka (Mr Seroka) brought an application in terms of section 158(1)(c) of the Labour Relations Act[1] (LRA) to make a settlement agreement dated 5 October 2017 concluded between him and the respondent, Vaal University of Technology (the

University), under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA), an order of Court.

[2] Mr Seroka also seeks that the University be ordered to submit him to the process of renewal of the contract, following the exact process that was followed in the renewals of the employees on the same level, whose contracts were up for renewal during 2017. He further seeks that the University should continue remunerating him his monthly remuneration and benefits until the finalization of the process of renewal. Furthermore, that an order should be granted interdicting and restraining the University from advertising, interviewing and placing a candidate(s) in his position as Executive Director: Student Support Services.

[3] The University opposed the application. However, it filed its answering affidavit out of time. This prompted Mr Seroka to file an extensive notice of objection to the late filing of the said answering affidavit, to which the University responded. The University then filed the condonation application, which is opposed by Mr Seroka.

[4] Mr Seroka further brought an application in terms of rule 11(3) of the Labour Court Rules read with rule 30 of the Uniform Rules of Court in terms of which he seeks an order that the filing of the condonation application by the University amounts to an irregular step in the litigation between the parties and it should be struck out. Alternatively, that the University’s application for condonation be dismissed.

[5] To an extent that the degree of delay was not excessive and the explanation for the delay was satisfactory, condonation ought to be granted.

Material background facts

[6] On 1 September 2012, the parties entered into a written contract of employment in terms of which Mr Seroka was employed in the position of Director: Student Support Services with effect from 1 September 2012 to 31 August 2017.

[7] On 15 August 2017, Mr Seroka referred an unfair dismissal dispute to the CCMA for conciliation. The dispute was unsuccessfully conciliated on 31 August 2017. As a result, a certificate of non-resolution was issued.

[8] Mr Seroka referred the dispute to arbitration that was set down for 5 October 2017, on which date the parties entered into the settlement agreement which is the subject of this matter.

The applicant’s submissions

[9] It is Mr Seroka’s submission that he has compiled with his antecedent and/or reciprocal obligations in the settlement agreement by submitting his portfolio of evidence (POE). The applicant’s contention is that the University has failed to comply with the settlement agreement in that it, inter alia, failed to subject the him to the process of renewal of the contract as agreed upon between the parties.

[10] To support his case, Mr Seroka submitted that although he compiled and submitting a POE to the Acting ED: HR in which he objectively and comprehensively outlined his performance during the contracted period, the University failed to comply with the process in that:

10.1 The Acting ED: HR did not, upon receipt of his POE, submit it to the interview panel chaired by the Vice Chancellor and Principal;

10.2 The Vice Chancellor and Principal failed to make a recommendation for an extension/non extension of the contract;

10.3 There was no external expert on student support services who served as a member of the panel;

10.4 There was no recommendation made by the panel, which served at the Human Resources Committee of Council;

10.5 No recommendation was made for an extension/non extension or the contract period; and

10.6 The Council did not make a final decision to extend his contract or not. Instead, the decision was made unilateral and he was not provided with any reasons for the decision taken.

[11] Mr Seroka submitted that he would suffer irreparable harm should the University not be interdicted from advertising, interviewing and filing the position which he held before his termination. Further that he has no other alternative remedy in enforcing the settlement agreement due to the fact that it is not a quantifiable amount as it places positive obligation on the University and that a writ of execution would not assist him.

Third respondent’s submissions

[12] In opposition, the University submitted that there was no expectation of renewal of the contract of employment that was ever provided to Mr Seroka and that even though the matter was referred for conciliation, it was never set down as the termination letter sent to Mr Seroka was withdrawn. As such, it was unsure how Mr Seroka obtained the settlement agreement.

[13] Notwithstanding the above submission, University submitted that the renewal of Mr Seroka’s contract was on the condition that he compiles by submit a POE and that he was given ample time to compile the POE before 21 November 2018. In this regard, the University submitted that Mr Seroka’s failure to submit the POE left it with no other option but to not renew his contract. Further that as the employer, it was within its rights to give the employee sufficient notice of its intention to terminate the contract as per the contract.

[14] The University disputed that Mr Seroka performed as per the settlement agreement and contended that he did not want to follow the process, but opted to dictate as to how and what process should be followed and cited his need for information which a candidate for renewal was not entitled to nor was it the respondent’s practice to provide. Further that despite his refusal to comply with the process, he was remunerated past the date of the finalisation of the process even though he did not report for duty. Furthermore, the University submitted that it was within its rights to cease remunerating Mr Seroka as he was in breach of his obligations and the tacit obligations of the settlement agreement

[15] The University submitted that Mr Seroka’s email dated 24 January 2018 was an obstacle that prevented the process from commencing, because in that email he, inter alia, raised that he believes that the settlement agreement had been breached and further that the University’s view was that he no longer wished to be involved in the process. Mr Seroka further raised the issue that his employment contract had not ended and that his position could not be listed as vacant on the PURCO Diary.

[16] The University submitted that Mr Seroka’s claim for specific performance was moot and that his failure to comply with his obligation rendered the agreement null and void. Further, that even if Mr Seroka was successful in the renewal process and his obligations renewed, his contract would have been extended from November 2017 up to November 2022 in accordance with its Retirement Age Policy as he attained the retirement age in October 2020. Further that his contract could not be renewed past his retirement age of 65 (sixty-five) and that to an extent that he sought specific performance, it could only be effected by an order that he be remunerated up to and including the end of his retirement age.

[17] The University submitted that any harm suffered by Mr Seroka was cause by his failure to comply with the obligations of the renewal process of the contract. Further that if the University was interdicted from advertising, interviewing and filling the position, this would create a substantial injustice for a tertiary institute that should comply fully with its practices and policies and that it would set precedence with the university and would ultimately create a public policy which would be damaging, not only to its reputation but to its financial and administrative aspect.

Applicable law and analysis

[18] Section 158 (1) (c) deals with the powers of the Labour Court and it provides that:

‘(1) The Labour Court may –

…

(c) make any arbitration award or any settlement agreement an order of the Court.

[19] In South African Post office Ltd v CWU obo Permanent Part-Time Employees,[2] the Labour Appeal Court (LAC) held that:

‘[21] …Before the Labour Court will grant an order sought in terms of Section 158(1)(c) of the LRA, it must be satisfied, at the very least, that:

i. the agreement, is one which meets the criteria set in s 158 (1)(c) read with section 158(1A) of the LRA, and if it is an award, it satisfies the criteria set in section 142A of the LRA;

ii. that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and,

iii. there has not been compliance by the defaulting party with the terms of the agreement or the award.

[22] Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the Court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and

circumstances. There is, otherwise, no closed list of factors to be taken into account. A relevant factor is the time it took the party seeking the relief to launch the application to make the settlement or award an order of court. The Labour Court may, for example, be more reluctant to make an award for reinstatement of employees an order of court where the employees unreasonably delayed in seeking the enforcement of the award, yet a delay in years in seeking to make an award for payment a sum of money may not be grounds for refusing to make the award an order of Court. Finally and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.’[3] [Footnotes omitted]

[20] Section 158(1A) of the LRA provides as follows:

‘For the purposes of subsection (1)(c), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22(4), 74(4) or 75(7).’

[21] In the current matter, the settlement agreement does not relate to a dispute that was referred to the CCMA in terms of section 22(4), 74(4) or 75(7). Mr Seroka referred an unfair dismissal dispute as envisaged by section 186(1)(b)(i) of the LRA on the basis of his expectation of the renewal of his contract. The agreement reads as follows:

‘1. Applicant agrees to withdraw [the] dispute under case no. GAVL3387/17.

2. The Applicant will submit to the process of renewal of contract, the exact same process that has been followed in the renewals of employees on the same level whose contracts were up for renewal during 2017.

3. The Respondent will continue remunerating the Applicant his monthly remuneration and benefits from 1st of September 2017 until the finalisation of the process referred to in paragraph 2 supra.

4. The applicant will not report for duty until the process referred to in paragraph 2 supra has been complete.’

[22] The question is whether the settlement agrement was complied with. However, before dealing with this question, it must be stated that the University’s submission that it was unsure how Mr Seroka obtained the settlement agreement or that it did not ever give Mr Seroka an expectation of renewal of contract of employment is contradictory to its conduct and therefore, without any merit.

[23] It is clear from the pleadings that the University addressed a correspondence dated 6 November 2017 to Mr Seroka titled “Extension of your contract”, which reads as follows:

‘RE: EXTENSION OF

YOUR CONTRACT

The contract in the capacity of ED: SSS is hereby extended in compliance with this settlement agreement for the case GAVL3387/17. The contract is extended under the following conditions:

Section 1: Conditions of extension of the contract

1. You shall subject yourself to the contract extension process as stipulated by VUT in the same manner other employees were subjected to. This process is outlined in section 2 of this memorandum.

2. You shall not report for duty until the process in (1) has been completed.

3. Your current contract shall be renewed on a monthly basis until such

time as the process in (1) has been completed.

4. You shall receive your remuneration and benefits on a monthly basis

for the period during which the process in (1) is under way. The payment shall take effect from 1 September 2017.

5. Any continued remuneration is subject to the extension of contract by the Council of the Vaal University of Technology.

Section 2: The process requirement for the extension of a contract

1. You should submit your Portfolio of Evidence (POE) in the capacity of ED: SSS to the Acting ED: HR in which you objectively and comprehensively outlined your performance during the contract period.

2. The Acting ED: HR shall upon receipt of the POE, submit it to the

interview panel chaired by the VC and the Principal, which will make a recommendation for an extension/non extension of the contract. An external expect on student support services will also be a member of the panel.

3. The panel’s recommendation will then serve at the HR committee

of Council, which will also make a recommendation for extension/non extention and make also a determination on the contract period to the Council.

4. The Council will make the final decision to extend/not extend. If an extension of the contract is approved, Council reserves the right to determine the duration of the contract, which could materially differ from the one recommended by HR committee of Council.’

[24] The above correspondence clearly reveals that the agreement was entered into at the CCMA following the referral of a dispute by Mr Seroka. It is further clear that Mr Seroka’s contract of employment was extended subject to some conditions and the process that was to be followed was also outlined in the second part of the correspondence.

[25] Mr Seroka was required to compile a POE, which is essentially a report outlining his achievements during his previous five-year tenure as a Director: Student Support Services. Upon receipt of the POE, the Acting ED:HR would submit it to the interview panel chaired by the VC and Principal, which would make a recommendation for the extension of the contract. The panel’s recommenadation would then serve at the HR committee of Council, which would make recommendation to extend/not to extend and also make a determination on the contract period to the Council.

[26] On 21 November 2017, the University sent an email to Mr Seroka informing him that he had not submitted the POE and urged him to submit it on 8 December 2017. In addition he was furnished with the document outlining the contract renewal process and was advised that his failure to follow the process would constitute a breach of an agreement entered between the parties.

[27] On 24 January 2018, the University wrote an email to Mr Seroka in response to his email dated 19 January 2018 regarding, inter alia, the replacement of his stolen laptop and Ipad. On 25 February 2018, Mr Seroka wrote an email to Prof Radebe outlining the stumbling

blocks preventing his POE from being finalized.

[28] On 8 March 2018, Prof Radebe allegedly informed Mr Seroka that he was battling to have the top management to meet and address the issues he raised and that his intention was to see to it that the settlement agreement was implemented. On 14 March 2018, Mr Seroka lodged a complaint to the Vice Chancellor alleging that his line manager was reluctant to enable him to compile the POE.

[29] On 25 August 2018, the University declared the applicant’s post vacant. On 01 October 2018, Mr Seroka had a meeting with the Vice Chancellor regarding his POE. On 22 October 2018, Mr Seroka sent an email to the University requesting to be connected to ITS.

[30] On 4 November 2018, the University wrote a letter to Mr Seroka informing him that his contract of employment would not be renewed beyond 31 December 2018. However, after Mr Seroka objected to his employment contract being terminated, the University wrote an email to Mr Seroka on 20 November 2018 withdrawing the letter terminating his employment.

[31] On 22 November 2022, Mr Seroka wrote an email to Mr Baba (the University’s attorneys) raising his concerns about the attorney’s role in the POE process as it was not his speciality. On 19 February 2019 at a joint meeting held at Quest Conference Centre, Mr Seroka submitted his POE report. It was in this aforementioned meeting that parties agreed that Mr Seroka would be sent names of the members who will be part of the independent committee to review his POE.

[32] On 1 March 2019, Mr Seroka addressed an email to the University requesting the CVs and/or any other objective standard on which they were selected as he was of the view that some were not or had never operated in his level. Further that him receiving that information woud expedite the process.

[33] On 12 September 2019, the University addressed a letter to Mr Seroka terminating his employment contract with effect from 31 October 2019. On 17 September 2019, Mr Seroka addressed a letter to the University requesting it to withdraw the termination letter indicating that the decision was premature as the renewal process agreed upon by both parties had not been completed. Novertheless, Mr Seroka’s employment was terminated on 31 October 2019. This prompted the applicant to bring this application.

[34] It is clear from the above that Mr Seroka has at all times shown his intention to give effect to the settlement agreement in that he made attempts to comply with it, but was prevented from doing so by the University in that it took longer to provide him with the tools of trade and denied him access to his place of work. Notwithstanding that, he eventually submitted his POE as required by the first section of the University’s correspondence dated 6 November 2017.

[35] There is no evidence that the University met the obligations it was required to in that upon receipt of his POE, the Acting ED: HR did not submit it to the interview panel chaired by the Vice Chancellor and Principal, no recommendation was made by the interview panel for an extension/non extension of the contract, there was no external expert on student support services which served as a member of the panel, the panel’s recommendation did not serve at the Human Resources Committee of Council. As a result, the Council did not make a final decision to extend or not.

[36] The University alleged that although Mr Seroka was given ample time to compile the POE, he failed to do so and that his failure left it with no other option but not to renew his contract. Further that he did not want to follow the process, but opted to dictate as to how and what process should be followed by stating his need for information, which a candidate for renewal was neither entitled nor was it its practice to provide.

[37] This is disingenuous of the University, because the fact that Mr Seroka submitted his POE on 19 February 2019 was undisputed. This was after the University had withdrawn its letter of terminating Mr Seroka’s employment. The fact of the matter is that the settlement agreement did not stipulate the date on which the POE must be submitted and the reason the University accepted the POE on 19 February was because it realised that the delay could not only be attributed to Mr Seroka. In addition, the settlement agreement clearly stipulated the exact process of renewal of contract, which was not followed by the University. If the University was to deviate from the agreed process, Mr Seroka had a right to ensure that the process was fair. Thus, I find no fault in the stance that he took.

[38] There is no merit to the University’s submission that Mr Seroka was remunerated past the date of the finalisation of the process despite his refusal to comply with the process and the fact that he did not report for duty. The settlement agreement provided for Mr Seroka to not report for duty until the process of renewal of contract has been completed and for the University to continue remunerating him his monthly remuneration and benefits from 1 September 2017 until the finalisation of the said process. Thus, it was not within its rights to cease remunerating Mr Seroka as he was not in breach of his obligations and the tacit obligations of the settlement agreement.

[39] In light of the above, there is no reason why the settlement agreement should not be made an order of Court. To an extent that Mr Seroka attained the retirement age in October 2020 in accordance with its Retirement Age Policy, his claim for an order interdicting and restraining the University from advertising, interviewing and placing a candidate(s) in his position as Executive Director: Student Support Services has become moot.

Costs

[40] 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.

[41] Accordingly, the following order is made:

Order

1. The condonation application for the late filing of the answering affidavit is granted.

2. The settlement agreement dated 5 October 2017, which was concluded between the parties is made the order of the Court.

3. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Advocate Werner van der Heever

Instructed by: Mcloughlin Porter Incorporated Attorneys

For the respondent: Mr Mahomed of Nadeem Mahomed Attorneys

[1] Act 66 of 1995 as amended.

[2] [2013] 12 BLLR 1203 (LAC).

[3] At paras 21-22.