A R10 million oversight – the consequences of inadequate disclosure to an insurer

In the recently decided Supreme Court of Appeal case of Regent Insurance Company versus King’s Property Development, the court considered what was a material non-disclosure which would entitle an insurer to reject a claim on insurance.

In the case, King’s Property, the owner of a commercial building, insured the building against fire and other possible losses. Regent Insurance provided the insurance cover. The building burnt to the ground in 2010, and King’s duly lodged an insurance claim for approximately R10 million. Regent rejected the claim.

Regent stated that the building was let by King’s to a business which manufactured trailers using fibreglass and resin, both highly flammable materials. It had not been informed of this fact, and would not have agreed to insure the building had it been so informed. It alleged that it was not liable under the insurance policy as King’s had committed a material non-disclosure.

The fire had indeed arisen from a manufacturing process within the building, done by the tenant’s staff.

King’s approached the High Court for an order compelling Regent to pay out. The High Court was sympathetic. It noted that, when King’s took out the insurance policy, its broker had requested that Regent do an urgent survey of the property, which Regent apparently agreed to do but did not do. King’s was unaware that the survey was not done, and paid the premiums in the belief that the building was properly covered by the insurance policy. Under the doctrine of estoppel, so the High Court held, the insurer could not now reject the claim, as it had misled the insured into believing that the premises had been surveyed and the insurance was valid. The High Court ordered the insurer to pay out the R10 million.

Regent took the matter on appeal to the Supreme Court of Appeal, relying pertinently upon the non-disclosure by King’s that the premises were let to a business manufacturing goods with fibreglass and resin. King’s had disclosed that the property consisted of a warehouse and offices and, so they argued, the insurer should have realised that a warehouse could involve manufacture utilising flammable goods. By failing to undertake a survey as agreed, King’s argued, it was Regent’s own fault that it did not establish the extent of the risk, and by nevertheless accepting premiums in those circumstances, they waived the right to rely upon non-disclosure of the risk and were estopped from now doing so.

The SCA noted that King’s had at no time informed Regent that its tenant manufactured using flammable materials on the site. The presence of this tenant had a substantial impact on the risk to the insurer. The court reasoned that the reasonable person would have found this fact to be material and thus would have disclosed it to the insurer. The agreement that the insurer would undertake its own survey did not relieve King’s of the duty to disclose. Regent was able to show the court that its standard operating policies would have led to insurance being declined had it been aware that the building’s use fell into a high fire risk category. Thus the non-disclosure had induced it to enter into an agreement which it would otherwise have declined. The proven fact that another insurer had been satisfied with the management of fire risk at the property and had earlier extended insurance cover, did not detract from this.

With regard to estoppel, the SCA found that the prejudice to King’s had arisen from its own non-disclosure of the extent of the fire risk – and not from Regent’s failure to survey the premises as agreed.

The SCA accordingly reversed the ruling that the claim of R10 million be paid out, instead confirming that the claim was rightly rejected.

This case highlights the importance of ensuring that all material facts are disclosed to an insurer when insurance cover is sought.

In addition to disclosing particulars of the uses of tenanted commercial premises, it is wise for commercial landlords to include provisions in their leases with commercial tenants, directed at preventing any actions or omissions by the tenant which might affect the landlord’s insurance cover.

Key changes to the labour laws in 2015 – part 8: PART-TIME EMPLOYMENT

As this blog series comes to a close, we have yet to consider the recent changes to the law on part-time employment.

Again, the new law applies only to employees who earn below the currently prescribed threshold of R205 433,30 per year. It does not apply to employees who ordinarily work fewer than 24 hours a month for the employer, nor does it apply in the first three months of employment.

Employers with fewer than 10 employees, and those with less than 50 but in the initial two year start-up phase, are exempt.

The part-time employee is entitled to be treated on the whole not less favourably than a comparable full-time employee doing the same or similar work, unless there is a justifiable reason for different treatment. She is further entitled to access to training and skills development which is on the whole not less favourable than the access applicable to a comparable full-time employee. She is entitled to the same access to opportunities to apply for vacancies at the employer.

A justifiable reason may include seniority, experience or length of service; merit; the quality or quantity of work performed; or any other criterion of a similar nature.

A comparable employee is one who is identified as full-time in terms of the employer’s custom and practice, but not an employee on agreed temporary short time. One should compare with a full-time employee with the same type of employment relationship and performing the same or similar work at the same workplace, and only at another workplace of the employer if no such employee exists at the same workplace.

As with the new law governing fixed term contracts, greater equity between those enjoying standard (permanent, full-time) employment and those subject to non-standard (fixed term, part-time) employment is the objective. In the event of an infraction, the aggrieved employee may refer a dispute to the CCMA within six months. If not resolved at conciliation (that is, mediation) then the dispute may be referred for arbitration.

Key changes to the labour laws in 2015 – part 7: FIXING THE FIXED TERM CONTRACT

Many people are employed on fixed term contracts which are renewed time and again with no promise of job security beyond the current term of the contract. After the third or sixth or twelfth renewal, the employer announces that the contract will not be renewed further, and the employee’s attention is drawn to the term of the contract stating that she agrees that she has no expectation of further renewal. After three or six or twelve continuous years of employment, the relationship has been terminated without any fault on the employee’s part, and in the employer’s view no due process is called for.

The LRA has long provided that a failure by an employer to renew a fixed term contract (or an offer to renew but on less favourable terms) is a dismissal IF the employee can establish that she reasonably expected renewal. This has assisted affected employees who have the stomach to contest their dismissal at the CCMA AND who are able to produce the necessary evidence to show that they had an expectation of renewal which was reasonable in the circumstances. Many more have walked away from their employment situations with a sense that injustice has prevailed.

As of 2015, the LRA has been amended to come to the assistance of employees earning less than the currently prescribed threshold of R205 433,30 per year. Higher earners do not benefit from the new law. Exempted from compliance are employers with fewer than 10 employees, as well as employers with fewer than 50 employees who are in the initial start-up phase of two years.

The new law allows fixed term contracts (including renewals) for periods up to three months only. Fixed term contracts (including renewals) may exceed three months in duration only if (1) the work is of limited or definite duration in nature or (2) the employer can show another justifiable reason. The latter might include:

  • replacing an employee temporarily absent from work (such as on maternity leave)
  • a temporary increase in work volume not expected to last beyond one year (such as a one-off large order)
  • the employee is a student or recent graduate being trained or gaining work experience to enter a job or profession (such as a candidate attorney)
  • the employment is for work on a specific project only, of limited duration
  • a non-citizen employee has a work permit for a limited period only
  • the work is seasonal (such as apple picking)
  • the work is part of an official public works scheme or other job creation scheme
  • the position is funded by an external source for a limited period (such as in the NGO sector)
  • the employee is post-retirement age

The Act goes on to state that a justifiable reason includes the application of a system that takes account of seniority or length of service, merit, the quality or quantity of work performed, or other criteria of a similar nature.

Where the fixed term employment exceeds three months and there is no valid justification, the employment is deemed to be indefinite (that is, permanent) employment.

The employer’s offer of fixed term employment must be in writing and must specify a valid reason for the fixed term nature of employment.

In any proceedings, the employer bears the burden to prove that there was a valid reason for fixed term employment, and that the term was agreed with the employee.

Absent a justifiable reason, fixed term employees performing the same work as permanent employees are entitled to no less favourable treatment. Permanent and fixed term employees are also to be provided with equal opportunity to apply for vacant positions.

Where an employee is employed for a fixed term to work exclusively on a specific project of limited duration, for a period of over twenty-four months, then on termination the employer must pay that employee severance pay equal to one week’s pay per completed year of the contract. This applies prospectively to any work subsequent to the amendment date (1 January 2015) even if the contract was concluded before the amendment. No severance pay is payable, however, if before expiry of the contract the employer offers the employee, or procures for the employee with another employer, employment commencing at expiry on the same or similar terms.

This amendment is one of the most welcome changes to our labour law from an employee perspective, with the scope to prevent a great deal of abuse of the fixed term contract. One waits to see how strictly or generously the CCMA and courts will interpret the requirement that an employer demonstrate a justifiable reason for fixing the term of a contract.