NS v South African Mutual Life Assurance Society Limited t/a Old Mutual and Others (C658/99) [2001] ZALC 65 (9 May 2001)
Simply because the employment relationship has come to an end at some date after an unfair labour practice dispute came into being and had remained unresolved at the time the employment relationship terminated, does not mean that the dispute is no longer capable of being referred for resolution. There is no basis in law or equity upon which a remedy sought in respect of a wrong committed by an employer can be denied simply because the relationship has come to an end.
Facts:
The Applicant, as a permanent member of the employer's staff, was required by it to undergo a medical examination. After the medical examination was held the Applicant was advised that as a consequence of the medical test she would be employed "with no insured benefits". The Applicant was therefore excluded from memberships of the Insurance Funds.
The Applicant referred a dispute with the employer to the CCMA. After the referral but prior to the CCMA issuing the certificate of non-resolution of the dispute the Applicant resigned from her employment. Later the Applicant instituted proceedings in the Labour Court seeking compensation on the grounds that employer committed an unfair labour practice.
The employer took an in limine point the Applicant was not entitled to the relief sought because at the time of referring the matter to the court she was not an employee. The basis for this contention was that the Court can only come to the assistance of a party or parties who are either employees or employers ie the Court's jurisdiction is limited in so far as disputes relating to unfair labour practice is concerned to parties who at the time of the referral of the matter to this Court are employers and employees.
The Labour Court dismissed the in limine point, holding that simply because the employment relationship has come to an end at some date after an unfair labour practice dispute came into being and had remained unresolved at the time the employment relationship terminated, does not mean that the dispute is no longer capable of being referred for resolution. There is no basis in law or equity upon which a remedy sought in respect of a wrong committed by an employer can be denied simply because the relationship has come to an end.
Extract from the judgment:
(Waglay J.)
[9] It is this point in limine that is before me for adjudication. The issues that the Respondent raises as a point in limine are firstly, that the Applicant is not entitled to the relief sought because at the time of referring the matter to this court she was not an employee, secondly that the order sought by the Applicant should properly be directed against the Second, Third and Fourth Respondents, (i.e the FUNDS), the referral should therefore be dismissed and further, and linked to the second issue that this Court had no jurisdiction to grant a declaratory order as prayed for by the Applicant as against the First Respondent.
[10] With regard to the first issue the Respondent's contention is that since the Applicant resigned and there is no dispute in respect of the termination of her employment with First Respondent Applicant is not entitled to any relief. The basis for this contention is that this Court can only come to the assistance of a party or parties who are either employees or employers i.e this Court's jurisdiction is limited in so far as disputes relating to unfair labour practice is concerned to parties who at the time of the referral of the matter to this Court are employers and employees. Since the Applicant so the argument goes, was not an employee at the time she referred her dispute to this Court for adjudication this Court has no jurisdiction to entertain the dispute.
[11] Respondent sought support for the above argument from the matter of Pilates Manufacturing (Pty) Ltd v Mambalo (1996) 1BLLR 26 (LAC), where the court held at 29 B-D:
"The Industrial Court has jurisdiction to determine a dispute in respect of an employee. If the Respondent was dismissed, as she contended, she remained an employee in terms of the Act: National Automobile and Allied Workers Union (now known as National Union of Metalworkers of South Africa) v Borg-Warner SA (Pty) Ltd (1994) 15 ILJ 609 (AD). If the Respondent resigned in the circumstances contended for by the Appellant, she was not an employee, and the Industrial Court had no jurisdiction to determine the dispute. If the probabilities were evenly balanced as to whether the Respondent had been dismissed or had resigned, the Industrial Court could not find that she had been dismissed and therefore that it had jurisdiction."Respondent's reliance on the above dictum is however misconceived. .
The above matter was dealt with in terms of the old Labour Relations Act (the 1956 Act). In terms of the 1956 Act-unlike the present Act- unfair dismissal was included in the definition of unfair labour practice, therefore although the Court was dealing with an unfair labour practice dispute the unfair labour practice complained of in that matter was the dismissal of an employee and quite correctly the Court found that since there was a dispute about whether or not the employee had been dismissed until the Court was satisfied that there was in fact a dismissal it had no jurisdiction to deal with the matter. Only once it was established that there was a dismissal could the Court be satisfied that there was an employee before it and then consider whether or not the dismissal was fair. The matter before me is not about a dismissal but about whether or not the refusal by the First Respondent (as alleged by the Applicant) to membership of the FUNDS was an unfair labour practice. In the circumstances unless the parties were in agreement that at the time that Applicant was refused membership to the FUNDS she was not an employee I do not see any basis upon which it can be said that this Court has no jurisdiction to entertain the dispute.
[12] Respondent's further reliance on the matter of YSKOR Bepark v Meyer (1995) BLLR 20 (LAC) 2 and National Automobile and Allied Worker's Union v Borg Warner SA (Pty) Ltd 1994(3) SA 15 (A) is also misconceived. These matters were also dealt with in terms of the old Labour Relations Act and do not provide that where an employee terminates his/her relationship with his/her employer he/she is not entitled to pursue a dispute that had arisen and had been declared prior to the termination of that relationship.
[13] Respondent's argument that since item 2(1)(a) of Schedule 7 specifically defines an "employee" to include an applicant for employment but not a former employee, the Act must have specifically intended to exclude such "employees" alternatively that since the term "employee" is not defined to include past employees the protection afforded by the Schedule is only available to those who remain in the employment relationship when applying for the relief pursuance to item 2(1)(a). This argument I also cannot accept. If there is a dispute between an employer and employee relating to their employment relationship, simply because their employment relationship has come to an end at some date after the dispute came into being and had remained unresolved at the time the employment relationship terminated, does not mean that the dispute is either resolved or is no longer capable of being referred for resolution. I see no basis in law or equity upon which a remedy sought in respect of a wrong committed by an employer or employee against the other can be denied simply because the relationship has come to an end, there has to be something substantially more. To uphold First Respondent's argument would be to accept that a right to such relief only comes into existence on institution of an action for that relief and not when a wrong is committed. This clearly is not tunable or part of our jurisprudence. Once a right vests in a party, unless there are specific and specified circumstances which do not allow that party to exercise that right, a party with that vested right can and must be able to exercise it.
[14] In this matter notwithstanding the fact that Applicant has resigned before referring the dispute to this Court her resignation, I am satisfied does not bar her from seeking the relief set out on her Statement of Case. In this respect I agree with the Applicant that the cancellation of a contract does not preclude any of the parties to that contract from enforcing a right that had accrued, due and enforceable as an independent cause of action prior to the recission of the contract. See in this respect the decision of Crest Enterprises Ltd v Ryck of Beleggings Bpk 1972(2) SA 863 (A) where the court quotes with approval from Salmond and Williams on Contract the following, on page 870 F-G:
". . .every obligation which has accrued due between the parties before the recission of the contract, and which so creates a then existing cause of action; remains unaffected and can still be enforced."[15] First Respondent's argument that the referral be dismissed because the order sought by the Applicant is abstract and/or academic, is of some merit as it is that something more I referred to earlier other than the end of the relationship between the parties. I would have upheld this argument had Applicant simply sought a declarator. This is so because this Court may not entertain a dispute which if adjudicated in favour of the Applicant has only academic value. However the relief Applicant seeks is not a declarator. What she seeks is compensation, there is nothing abstract or academic about that. The fact that a declarator is a pre-requisite for the relief does not make her claim academic or abstract.
[16] In the result the first in limine issue stands to be dismissed.