Both the Labour Court [LC] and the Labour Appeal Court [LAC] are courts of law and equity [LRA s151(1) & s167(1)]. In other words those courts have the right to apply fairness in any given situation irrespective of the requirements of the law, be it statutory or common law. It is disturbing that Zondo JP seems to have overlooked this fact when he dissented with Davis JA and Jappie JA.
On 13 August 2009 the LAC, in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] JOL 24187, disallowed the employer’s appeal against an order of the LC. The LC found that the employer had made life “intolerable” for Marsland and that his resignation amounted to a “constructive dismissal”. Given the circumstances it was also held that the dismissal was automatically unfair because it impaired the fundamental human dignity of Marsland, who suffered from depression.
The LAC unanimously upheld the LC’s award of 24 months remuneration as compensation for the automatically unfair termination of his employment and the contractual claim for R18,720 in outstanding leave pay. However, the contractual claim for unpaid overtime was reduced from R77,658.75 to R30,142.50 with Zondo JP dissenting.
Zondo JP was not prepared to uphold any such claim for overtime worked because in his opinion Marsland had failed to prove that he was lawfully entitled to claim the money. Zondo JP argued that in terms of the employment contract Marsland only had a right to claim overtime if he proved that his employer had authorised him to work overtime.
Davis JA had the following to say in respect of that claim:
“[32] In the light of the often contradictory and certainly unsatisfactory evidence of respondent [Marsland], but absent any other evidence, the court is required to undertake its own calculation which, in the circumstances, is fair to respondent [Marsland] who clearly, on the uncontested evidence, worked overtime but, which claim in the absence of any other evidence, must fall within the parameters of the contract. To ignore that respondent [Marsland] worked this uncontested amount of overtime and thus not order the requisite compensation, on the facts, would be grossly unfair to respondent [Marsland]” (Underlining added).
Zondo JP, in dealing with the reasons provided by Davis JA states “it seems that no finding is made that the respondent [Marsland] was instructed to work overtime but the overtime pay claim is upheld because it seems to have been undisputed that the respondent [Marsland] did work the overtime”. Zondo JP goes on to state:
[8] … “In my view, the issue that needs to be decided is whether, assuming that the respondent [Marsland] did work the overtime he claimed to have worked, he did so on the [employer’s] instruction or on his own. Put differently, the question is whether the employer had given the respondent [Marsland] the notice to work overtime required by clause 12.2”.
Clearly the other 2 LAC judges of appeal relied on equity as opposed to the law of contract to uphold the award of overtime pay despite Marsland failing to prove all the elements of his contractual claim and this equitable approach and solution needs to be supported and applauded. I suppose it is ironic that the JSC has proposed Zondo JP and not Davis JA for appointment to the Constitutional Court.