The LC rejected the former employee’s contractual claim for payment of a performance bonus and a ‘golden handshake’. He failed to prove that the bonus payment was non-discretionary. He also failed to prove an agreement to be paid a lump sum when the fixed-term contract expired. In other words he failed to prove an offer, and a clear, unambiguous and unequivocal acceptance of that offer by his employer. He sought to enforce a clause to the effect that if his contract was not renewed he would be paid an amount equivalent to 2 years remuneration, some R 4.1 million. He also claimed about R150 000, being the balance owing in terms of a bonus scheme. The employer denied that there was any amount owing as a bonus and also denied that it ever agreed to pay him any gratuity on non-renewal of the contract.
Thorp v National Homebuilders Registration Council (JS845/2014) [2017] ZALCJHB 167 (6 April 2017) per Van Niekerk J.
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[14] There is obviously a material dispute of fact in relation to the circumstances in which clause 19(c) came to be inserted into the draft document and deleted. However, it is not necessary for me to make any decision as to which is the more probable since in my view the plaintiff has failed, on his own version, to discharge the onus of proving the existence of a binding contractual term that entitles him to the sum claimed. To succeed in his claim, it is incumbent on the plaintiff to prove an offer, and a clear, unambiguous and unequivocal acceptance of that offer by the offeree.
[15] The plaintiff’s evidence regarding his discussion with Mashinini regarding a revised contract of employment did not extend to a payment of 24 months’ remuneration in the event of a non-renewal of the contract. At best for the plaintiff, there was a discussion over the prospect of a payment equivalent to 12 months’ remuneration in those circumstances. The plaintiff did not dispute that the copy of his existing contract, accompanied by Mashinini’s handwritten note, comprised no more than an invitation to the plaintiff to make proposals for the revised contract. Specifically, the plaintiff was requested to ‘suggest changes for negotiation’ using his existing contract of employment as a base document.
[16] In other words, the plaintiff was invited to make proposals on new terms and conditions of employment on which agreement might be reached. It is not disputed that the plaintiff made such proposals, including the proposal of a 12-month payment to him should the contract not be renewed. The plaintiff testified that he did not know what happened to the document after it was left with Mashinini – his assumption was that Mashinini would have the draft typed and peruse it.
[17] On his version, the plaintiff then received a clean, hard copy of the document from the human resources department. That document was not an offer of employment on the terms that it reflected – it was not signed by the CEO as were offers of employment made in the normal course. The document did not reflect any oral agreement reached between him and Mashinini. In other words, the document was not an offer made by the defendant animo contrahendi.
At best for the plaintiff, on his version, the document amounted to a typed version of the proposal that he had been invited to make and which he submitted, with the exception only of the quantum reflected in clause 19 (c). He initialled and signed the document, thus making an offer, in writing, to the defendant, to contract on the terms contained in the document. The plaintiff made no enquiry thereafter as to whether his offer had been accepted.
On his version, the plaintiff did not even request a copy of the document as signed by the defendant. Indeed, the plaintiff appears to have remained in a state of self-imposed ignorance until the dispute over the terms of his contract some three years later. On the plaintiff’s version therefore, he was unaware of any acceptance by the defendant of his proposal regarding the payment of a gratuity on the non-renewal of his contract, nor was any acceptance of such a proposal later communicated to him.
In short, there was never any agreement between the parties on any contractual term that the plaintiff would be paid a gratuity should his contract not be renewed. It does not assist the plaintiff that he believes, as he appears to do, that clause 19 (c) remains valid and enforceable because he did not countersign the deletion. On the plaintiff’s version, the deletion of clause 19 (c) by Mashinini (which the plaintiff does not seriously dispute) indicates no more than Mashinini’s rejection, in graphic terms, of his proposal. The plaintiff’s claim to the equivalent of 24 months’ remuneration must therefore fail.