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[2011] ZAECPEHC 61
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Dennis v Kouga Municipality (644/2011) [2011] ZAECPEHC 61 (30 September 2011)
19
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE –
PORT ELIZABETH)
Case No: 644/2011
Date Heard: 17/06/11
Date Delivered:
30/09/11
In the matter between
FREDERICK PAUL
DENNIS
…..................................................
Applicant
and
KOUGA MUNICIPALITY
…...................................................
Respondent
JUDGMENT
REVELAS J
[1] Mr Dennis, the
applicant, had been in the employ of the respondent as director of
its Department of Planning and Development,
when he was dismissed on
31 January 2011, without due notice and without any disciplinary
hearing being held into the allegations
levelled against him in a
charge sheet, which was given to him some time before his dismissal.
[2] The relief sought
by the applicant is a declarator to the effect that the “purported
termination of [his] employment contract
with the respondent be
declared to be unlawful, and in breach thereof”. He also seeks
“reinstatement” in his
former position, with
“retrospective effect”. In other words, the applicant
wants the status quo restored with payment
of an amount equal to the
salary he would have earned, but for his dismissal.
[3] Noteably, the
applicant’s complaint is not about a procedurally and
substantively unfair dismissal which would have required
him to
invoke the dispute-resolution machinery available to him in terms of
the Labour Relations Act, Act 66 of 1995 (“the
LRA”), if
I correctly understand the judgment of the Constitutional Court, in
Gqaba v Minister and Security
2010(1) SA 238(CC).
[4] The applicant has
based his claim for reinstatement on an alleged breach contract of
certain material terms of his employment,
which he maintains were the
following:
(a) The respondent
failed to hold a disciplinary hearing before dismissing him, as
required by the applicable disciplinary code
and procedures being in
this case, those provided for in the South African Local Governing
Bargaining Council.
(b) There was no
compliance with clause 15.2 of the contract of employment, which
enjoins the respondent to effect dismissals in
accordance with the
LRA. The obligation of the respondent to comply with the LRA was
expressly incorporated into the applicant’s
contract of
employment. (The applicant alleges that this term of the contract was
breached in that the respondent failed to afford
him an opportunity
to state his case prior to terminating his contract of employment,
and to dismiss him for a “fair reason”.)
(c) The respondent
failed to give him the one calendar month’s notice prescribed
in his contract of employment.
[5] The respondent,
perhaps wisely so, did not attempt to persuade me that the
applicant’s dismissal was not procedurally
flawed. Since there
was no hearing at all, it was also not established that there was a
lawful basis for the dismissal of the applicant.
Allegations of
negligence in
inter alia
, selling certain of the respondent’s
properties without following proper procedures, were made in the
charge sheet given
to the applicant at some stage prior to his
dismissal, but were never proved or even tested in a hearing. He was
suspended and
invited to a hearing but was dismissed before it could
take place.
[6] The respondent
opposed the application primarily by challenging the jurisdiction of
this Court, as opposed to the Labour Court,
to entertain a matter
which concerns the dismissal of an employee who seeks reinstatement
with retrospective effect. It argued
that the applicant should have
invoked the dispute-resolution machinery available to him under the
LRA.
[7] The respondent’s
case was that the applicant’s claim is quintessentially a
labour related matter, which falls within
the exclusive jurisdiction
of the Labour Court, irrespective of how the applicant has
characterized his case in his notice of motion
and founding
affidavit. In support of the assertion the respondent relied on the
following passage in the judgment of
Gcaba (supra)
at
paragraph [75]:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. If Mr
Gcaba’s
case
was heard by the High Court, he would have failed for not being able
to make out a case for the relief sought, namely review
of an
administrative decision. In the event of the Court’s
jurisdiction being challenged at the outset (
in
limine
),
the applicant’s pleadings are the determining factor. They
contain the legal basis of the claim under which the applicant
has
chosen to invoke the Court’s competence. While the pleadings
including, in motion proceedings, not only the formal terminology
of
the notice of motion, but also the contents of the supporting
affidavits must be interpreted to establish what legal basis of
the
applicant’s claim is. It is not for the court to say that the
facts asserted by the applicant would sustain another claim,
cognisable only in another court. If, however the pleadings, properly
interpreted establish that the supplicant is asserting a
claim under
the LRA one that is to be determined exclusively by the Labour Court,
the High Court would lack jurisdiction”.
[8]
Interpreting
the papers is not a simple matter. The concept of fairness which is
the bedrock of Labour Law, if referred to in litigation
concerning
dismissals in particular, still seems to cause some practitioners to
lose sight of the fact that a labour contract or
employment contract
is just another contract. The fact that there is a designated
specialist court which deals with employment
matters does not mean
that where an unfair dismissal is alleged, the employee concerned
only has recourse to the LRA remedies.
Despite what was held in
Gqaba
(
supra
)
the jurisdiction of the High Court over labour matters, is still a
question which is consistently raised. For almost a decade
there has
been an ongoing debate about the jurisdictional conundrums presented
by section 157 of the LRA with its ouster clause
(contained in
section 157(1) and the current jurisdiction conferred on the High
Court and Labour Court (section 152 (2)). Many
judges have had
occasion to consider these questions and interpret the various
divergent decisions on them. In this judgment I
will refer only to
those cases which are considered relevant to the facts of this
particular matter and which, in accordance with
the
stare
decisis
principle, are binding. The
Constitutional Court considered the question in three of its
judgments:
Fredericks and
Others v MEC for Education and Training, Eastern Cape and Others
2002(2) SA 693(CC);
Chirwa v Transnet
Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
Gcaba v Minister For
Safety and Security
(
supra
).
[9] A good starting
point in this judgment would be to quote the relevant portions of
section 157 of the LRA, in which the Legislator
has sought to define
the jurisdiction of the Labour Court.
[10] Section 157(1) is
the ouster clause which provides that, subject to the Constitution
and section 173 (which defines the jurisdiction
of the Labour Appeal
Court) and
“
except where the LRA provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in
this Act or in terms of any other law
are to be determined by the Labour Court”.
[11] Section 157(2)
provides that the
“
Labour Court has
concurrent jurisdiction with the High Court”
in
respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution
“
and
arising
from –
“
employment
and from Labour Relations;
any
dispute
over the constitutionality of any executive or
administrative act or conduct by the State in its capacity as
employer; and
the application of any
law for the administration of which the
Minister
is responsible”.
[12] Some consideration
must also be given to the reasons why some employees, prefer to seek
redress for their dismissals in the
High Court, rather than to invoke
the dispute-resolution mechanisms of the LRA. The principal objective
of the LRA, to provide
the effective and expeditious resolution of
labour dispute has sadly not been attained. It happens not
infrequently that due to
several interim review applications
pertaining to rulings of the Commission for Conciliation and
Arbitration (“the CCMA”)
and other factors, a decade may
go by between the actual dismissal of an employee, and a judgment of
the Labour Appeal Court or
Supreme Court of Appeal, which finally
determines the matter. Another factor is the limitation on the amount
of compensation which
can be awarded under the LRA to an employee who
has been successful under the LRA. Section 194 of the LRA
distinguishes between
‘automatically unfair dismissals”
and “other” unfair dismissals, for which the maximum
amounts payable
as compensation are equal to 24 and 12 months’
remuneration respectively. Employees are not always awarded the
maximum amount
of compensation. For a high earning employee aggrieved
about his or her dismissal, the limited compensation under the LRA
may sometimes
be cold comfort. It is therefore understandable that
many dismissed employees would prefer to institute their dismissal
claims
in the High Court.
[13] The earliest
matter in which the Supreme Court of Appeal dealt with a case where
an employee sued for damages following an
alleged breach of an
employment contract and was faced with a jurisdictional challenge was
in
Fedlife
Assurance
Ltd
v Wolfaardt.
1
The respondent in that
matter instituted an action for damages his employer (the appellant)
for an alleged breach of his fixed term
contract in the High Court.
The applicant filed a special plea contending that the Labour Court
had exclusive jurisdiction in terms
of section 157(1) of the LRA. The
respondent’s exception to the special plea was upheld on the
ground that the Labour Court
did not have exclusive jurisdiction over
the simple matter of enforcing a contract of employment. On appeal
the appellant argued
that the respondent had no remedies other than
those provided in Chapter 8 of the LRA, and these remedies were not
enforceable
in the High Court. (Chapter 8 deals with unfair
dismissals, compensation and reinstatement). The appellant (the
employer) also
argued that the remedies available to an unfairly
dismissed employee were exhaustive,
and
that in any event, the common-law right to enforce a fixed term
contact was abolished by the LRA. The majority of the Court
per
Nugent AJA,
as he then was,
(Froneman AJA,
as he then was,
dissenting) held in paragraph [13] at 57F-G, that the clear purpose
of the Legislature when it introduced a remedy
against unfair
dismissal, had been to supplement the common law rights of an
employee whose employment could lawfully terminated
at the will of
the employer. The court specifically held that Chapter 8 of the LRA
was
not
exhaustive of the
remedies available to the employee and that he was entitled to sue
for damages as he had pleaded a clearly identifiable
common-law claim
for damages based on a breach of contract. As to whether the
respondent’s claim for damages, based on his
employment
contract, was nevertheless a question for determination by the Labour
Court exclusively in terms of section 157(1),
the learned judge
reasoned as follows: if an employee accepted repudiation and
cancelled the contract of employment, the Labour
Court would not
order the primary remedy for unfair dismissal namely reinstatement or
re-employment in terms of section 193(2)
of the LRA. That would leave
compensation,
which
was limited (section 194(1)) and the employee would not be entitled
to damages over and above the amount representing compensation
envisaged in section 194. The Court held that where the matter was
clearly about a dispute concerning the “fairness”
of a
dismissal,
as
opposed to its “unlawfulness”,
it
was a matter which could be adjudicated only by the Labour Court. It
was further held that the fact that a dismissal could be
both
unlawful and unfair did not detract from the aforesaid propositions.
Nugent AJA pertinently observed that the respondent had
plainly
intended to plead a common-law claim for damages arising from the
“unlawful” premature repudiation of his contract
and had
“studiously refrained” from reliance on an unfair labour
practice and making a claim for compensation in terms
of the Act
(paragraph [21] at 59 I-60 E).
[14] The applicant
in
casu,
also stressed the fact that the question of jurisdiction
must be determined by considering what has been pleaded and not that
the
dispute may also be capable of being determined under the LRA.
[15] In
Fredericks
and Others v MEC for Education and Training, Eastern Cape and Others
2002(2) SA 693 the applicants launched proceedings in the High
Court to set aside the respondents’ refusal of their
applications
for voluntary retrenchment packages in terms of a
collective agreement reached between the parties. The applicants
argued that
their right to equality and administrative justice,
protected by sections 9 and 33 of the Constitution had been breached
and that
the State, as their employer, had acted in a manner which
was procedurally unfair. A Full Bench of the High Court held that its
jurisdiction to hear the matter had been ousted by section 157(1) of
the LRA, because the applicable Bargaining Council resolution
which
was published in a Government Gazette constituted a collective
agreement in section 24 of the LRA, and not a contractual
undertaking
to pay voluntary severance packages. The Constitutional Court held
that the applicants’ dispute was not to be
excluded from the
jurisdiction of the High Court. O’Regan J, in paragraph [38] of
the Court’s unanimous judgment stated
the following:
“
Section
157(1) therefore has the effect of depriving the High Court of
jurisdiction in matters that the Labour Court is required
to decide,
except where the Labour Relations Act provides otherwise. Deciding
which matters fall within the exclusive jurisdiction
of the Labour
Court requires an examination of the Labour Relations Act to see
which matters fall ‘to be determined’
by the Labour
Court. It is quite clear that the Labour Relations Act does not
confer a general jurisdiction on the Labour Court
to deal with all
disputes arising from employment”.
[16] It was observed in
Gqaba
at paragraph 28
at 250,
Fredericks
was
not a labour matter or where direct reliance was placed on the LRA.
The applicants based their case on administrative rights.
[17] In
Boxer
v Superstores Mthatha and Another v Mbenya
2007(5)
SA 450, the dismissed employee, Miss Mbenya, approached the High
Court seeking reinstatement, seven months after her dismissal.
She
applied for an order to have the disciplinary hearing which preceded
her dismissal set aside, and that her dismissal be declared
‘unlawful’ and also be set aside. In addition, she sought
a declaratory order to the effect that her dismissal was
unlawful and
of no force. She wanted her reinstatement order to be with
retrospective effect as in
Chirwa
(
supra
).
In her founding affidavit she alleged that her dismissal was
procedurally and substantively unfair. The High Court dismissed
her
employer’s objection to jurisdiction. The employer’s
appeal was dismissed and the High Court’s jurisdiction
upheld.
Cameron JA (as he then was) at 453 A-C restated the position of the
competing jurisdictions as found in
Fredericks
and
Fedlife,
namely that the jurisdiction of the High Court is not
ousted by section 157(1) of the LRA simply because a dispute is one
that falls
within the overall sphere of employment relations.
Provided that the employee’s claim as formulated does not
purport to be
one that falls within the exclusive jurisdiction of the
Labour Court, the High Court has jurisdiction even if the claim, (as
in
the present matter) could also have been formulated as an unfair
labour practice.
[18] In
Boxer
Superstores
another question arose which is
also pertinent in the present matter, namely whether an employee may
sue in the High Court for relief
on the basis that the disciplinary
proceedings and the dismissal were “unlawful” without
alleging any loss apart from
salary. Cameron JA’s answer to the
question is found in paragraph [6] at 453G-H of his judgment:
“
In
my view, the answer can only be Yes. This Court has recently held
that the common-law contract of employment has been developed
in
accordance with the Constitution to include the right to a
pre-dismissal hearing … This means that every employee now
has
a common-law contractual claim - not mere a statutory unfair labour
practice right – to a pre-dismissal hearing”.
[19] In
Chirwa
(
supra
)
the Constitutional Court had another opportunity to
consider these questions. It was not a unanimous decision. The facts
need to
be restated briefly. The applicant was charged with
incompetence and notified to attend a disciplinary hearing, which she
failed
to do, because she objected to the impartiality of the person
chairing the hearing. Following her dismissal
in
absentia,
the applicant referred a dispute
about an unfair dismissal to the CCMA where conciliation was
certified to have been unsuccessful
and the unresolved dispute had to
be set down for an arbitration hearing. At this point she abandoned
the dispute-resolution measures
provided for by the LRA (arbitration)
and chose to approach the High Court seeking to have her dismissal
set aside and to be reinstated,
on the grounds of the chairperson of
the hearing being biased and that she had not been afforded the
opportunity to avail herself
of legal representation. The High Court
reinstated her, having found that the respondent’s breach of
the applicant’s
right to natural justice had rendered her
dismissal a nullity. The respondent appealed against the High Court’s
judgment
on the basis that the High Court did not have jurisdiction
over the matter.
The Supreme Court of Appeal
upheld the respondent’s appeal. Two judges upheld the judgment
of the High Court on the basis
that the dismissal did not constitute
administrative action (Mthiyane and Jafta JJA). Conradie JA did so on
the basis that the
High Court lacked jurisdiction to entertain the
matter. Mpati DJP and Cameron JA held that the High Court indeed had
jurisdiction.
The applicant then applied for leave to appeal to the
Constitutional Court, which was, given the circumstances, naturally
granted.
[20] The applicant’s
main argument in
Chirwa
was
that her case was reviewable under Promotion of Administrative
Justice Act, 3 of 2000 (PAJA) because the respondent had failed
to
comply with the Code of Good Practice for dismissals in Schedule 8 of
LRA. Skweyiya J, who wrote the majority judgment regarded
her case as
one contemplated in section 188 of the LRA which is a dismissal which
the employer cannot prove was for “
a
fair reason
”
, relating to “
the
employee’s
conduct or capacity”
and was not “
effected in accordance with
a fair procedure
”
. The question of
jurisdiction
also arose because the applicant was
a government employee or civil servant and that her dismissal
therefore involved the right
to fair labour practices and the right
to fair administrative action (for justice). By pleading a failure on
the part of her employer
to effect a fair procedure in terms of the
LRA in dismissing her, the majority of the Court held that the matter
was one over which
the Labour Court had exclusive jurisdiction and
the High Court had none. The majority judgment was also no doubt
motivated by the
spectre of opening the flood gates to thousands of
disgruntled employees seeking to by-pass the LRA by litigating in the
High Court.
[21] The minority
judgment in
Chirwa (per
Langa
CJ; Mokgoro and O’Regan JJ concurring) which held that the High
Court indeed had the necessary jurisdiction to hear
the matter, was
founded on the view that the Constitutional Court had already decided
in
Fredericks (supra)
that
the High Court had such jurisdiction. Langa CJ also observed that
because the applicant had premised her case on PAJA, the
High Court
had jurisdiction because section 157(2) of the LRA specifically
conferred such jurisdiction on it.
[22] In the case of
Makhanya v University of Zululand
2010 (1) SA 62
(SCA), Nugent JA summarized the position
of the competing jurisdictions after the
Chirwa
judgment,
at paragraph 18 of his
judgment as follows:
“
Thus
to summarize:
The labour forums have
exclusive power to enforce LRA rights (to the exclusion of the High
Courts).
The High Court and the
Labour Court both have the power to enforce common-law contractual
rights.
The High Court and the
Labour Court both have the power to enforce constitutional rights so
far as their infringement arises from
employment”.
In terms of the second
paragraph quoted above the applicant’s claim for reinstatement
should be permitted.
[23] In the
Makhanya
case, the appellant instituted an action against the respondent whom
he alleged had terminated his contract of employment in breach
of its
terms. Despite the termination he continued to render and tender his
services for which he was not remunerated. He accordingly
sought to
enforce payment of his remuneration and other monies, to which he was
entitled to in terms of his contract of employment.
Noteably, he was
not seeking reinstatement based on the unlawful breach of his
employment contract. The respondent defended the
action on the basis
that Professor
Makhanya’s
claim was an employment matter
over which the High Court had no jurisdiction, as did the respondent
in this matter.
[24] Nugent JA
described the jurisdictional challenge in
Makhanya
as curious
because claims for enforcements of contracts were commonplace in the
High Courts. He then referred to
Fedlife
where the argument
that claims for the enforcement of contracts of employment had been
excluded from the jurisdiction of the High
Courts by the LRA, was
rejected. He then added that:
“…
if
there is any residual doubt as to whether a High Court has the power
to consider such a claim it is put to rest by section 77(3)
of the
Basic Conditions of Employment Act 75 of 1997 (BCEA), which was
enacted after the LRA and which makes it perfectly clear
that the
High Courts have not been divested of their ordinary jurisdiction to
enforce contracts”.
[25] The BCEA remedies
are for monetary orders and do not include reinstatement.
Reinstatement (with retrospective effect and otherwise)
is the
primary remedy under the LRA when an employee has been unfairly
dismissed, unless there are circumstances present which
dictate that
only compensation should be awarded. An employee seeking damages for
reinstatement based on a breach of contract in
the High Court may
have certain advantages which he would not have had under the LRA as
pointed out above. When seeking reinstatement
in terms of the
common-law, that might not always be the case.
[26] This is what
Cameron JA had to say about the remedy sought by the employee in
paragraph [9] in
Boxer Superstores Mthatha and
Another v Mabenya
:
“…
the
employee was careful to formulate her claim on the basis that her
dismissal was ‘unlawful’. She did not complain
about its
unfairness; nor did she invoke the benefits the LRA confers on
employees through the protection of the Labour Court’s
unfair
labour practice jurisdiction. It is true that the relief she claimed
went far beyond a
declarator,
including
reinstatement and back-pay. In
Transnet
Ltd and Chirwa,
I observed that the employee’s insistence on approaching the
ordinary courts - when the LRA afforded ample remedies, including
retrospective reinstatement and compensation if the employer failed
to discharge the burden of proving that the dismissal was both
procedurally and substantively fair – could involve a penalty
regarding relief. The ordinary courts should be careful in
employment-related matters not to usurp the Labour Courts’
remedial powers, and their special skills and expertise”.
[27] His Lordship then
pointed out in paragraph [10] of his judgment, that Ms Mbenya might
only have been entitled to having the
disciplinary hearing set aside
and remitted to the employer for another hearing, because she did not
exhaust her right to an internal
appeal. Because the majority
concluded that the appeal should be allowed, this aspect was not
taken much further.
[28] The following
passage in
Gqaba
at paragraph [74], 262G-263A-B is also
important in this regard:
“
Where
the judgment of Ngcobo J in
Chirwa
speaks
of a court for labour and employment disputes, it refers to
labour-and employment-related disputes, for which the LRA creates
specific remedies. It does not mean that all other remedies which
might lie in other courts, like the High Court and Equality Court
and
can no longer be adjudicated by those courts. If only the Labour
Court could deal with disputes arising out of all employment
relations,
remedies
would be wiped out, because the Labour Court (being a creature of
statute with only selected remedies and powers) does
not have the
power to deal with the common law remedies
2
”
.
[29] Recently, Nugent
JA considered this jurisdiction debate in
Manana
v King Sabata Dalindyebo Municipality
3
once again,
and said the following
about it:
“
.
. . a debate that I thought had run its course once
Gqaba
was
decided. It was submitted that the facts of this case ground a claim
for relief under the Labour Relation Act. In those circumstances,
so
I understood the submission, it cannot be a claim that is good in law
in the high courts. Counsel said that the decisions of
this court in
Makhanya
v University of Zululand
4
and
South
African Maritime Safety Authority v Makenzie
5
support
that submission. They do no such thing. The evidence in this case
establishes the existent of a contract of employment between
the
municipality and Mr
Manana
and
he wishes to enforce the contract. It is conceded that the high court
had jurisdiction to do so, which is clearly does”.
[30] The aforesaid
summary of cases show that it has been clearly established that an
alleged breach of an employment contract may
be enforced in the High
Court, provided that the pleadings reflect that. Where the claim
against the employer is one sounding in
money, the claim can be
enforced in the High Court based on a breach of contract. The wider
range of remedies provided for in the
LRA, should also not be a bar
to the High Court to order reinstatement. Where a breach of contract
is established, reinstatement
may be granted as a form of specific
performance. In this particular case, no objection can be raised,
such as that the applicant
did not exhaust all his other internal
remedies, because there was simply no hearing. In such a case,
unconditional reinstatement
with retrospective effect is the only
appropriate remedy, where the dismissed employee chooses to claim
specific performance as
opposed to claiming damages. However, where a
hearing was held and the dismissal is challenged on procedural or
other grounds,
the warning of Cameron JA in
Boxer Superstores
(
supra
) should not be ignored. None of those
considerations however apply to the present matter.
[31] Counsel for the
applicant referred me to the matter of
Mangope
v SA Football Association
6
where Molahlehi J of
the Labour Court summed up the applicable principles succinctly and
clearly at 1139 F-H to 1140 A-D:
“
[17]
In general the remedies of an employee whose employment contract has
been terminated by an employer can be found in either
the concept of
breach of contract under the common law or the unfair dismissal
concept under the LRA.
[18] In terms of the
LRA an employee who claims unfair dismissal has to show that there
was a dismissal and once that has been established
the employer has
to show that the dismissal was for a fair reason. Although, as the
authorities have stated, the need for fairness
in the termination of
employment as set out in the LRA has softened the harshness of a
dismissal, it has not taken away the principles
governing the need
for a lawful termination of an employment contract in terms of the
common-law principles neither has it taken
away the remedies provided
for in terms of the principles of the law of contract. See
Member
of the Executive Council, Department of Health, Eastern Cape v
Odendaal & Others
(2009) 30 ILJ 2093
(LC).
[20] In terms of the
common law any material breach of the terms of an employment contract
can be regarded as a repudiation of the
contract entitling the
affected party (commonly referred to as the ‘innocent party’)
the right to accept the repudiation
and sue for such a breach. The
affected party may elect to hold the other party to the contract and
claim specific performance
or claim damages caused by the breach.
Breach of a contract generally arises when an employee or an employer
fails in a material
way to comply with his or her duties as set out
in the contract. See
Stewart Wrightson (Pty)
Ltd v Thorpe
1977 (2) SA 943
(A);
[1977] 3
ALL SA 267
(A) and
WL Ochse Webb &
Pretorius (Pty) Ltd v Vermeulen
(1997) 18 ILJ
361 (LAC);
[1997] 2 BLLR 124
(LAC).”
(emphasis
added)
[32] If the above
principles are understood, the question of jurisdiction should not
present any difficulty. In this case the applicant’s
contract
of employment ensured him a disciplinary hearing before he could be
dismissed. The general principles of fairness as well
as the relevant
provisions of the LRA were also incorporated in his employment
contract. Since no hearing was held at all, his
dismissal was clearly
in breach of his contract. The applicant was entitled to reject the
repudiation and hold his employer to
the contract. He has based his
claim on a breach of his contract of employment which cause of action
is set out in his notice of
motion and supported by the facts alleged
in his founding papers.
[33] The applicant’s
case is very simple and its facts enabled him to plead a cause of
action that would be sustainable in
both the High Court and the
Labour Court. He has pleaded his case to fall within the High Court’s
jurisdiction as a breach
of contract and he is entitled to do so. The
fact that the respondent’s conduct towards him also violated
his right to fair
labour practices, that his dismissal was not for a
fair reason, and it was procedurally unfair, does not alter his
position. The
applicant is also entitled to be reinstated on the same
terms and conditions which were applicable to him at the time of his
dismissal,
in this Court.
[34] The respondent is
however not precluded from conducting a disciplinary hearing if it
believes there are grounds to do so, once
the applicant has resumed
his duties in terms of the order I intend making.
[35] The applicant has
argued that a punitive costs order should be made against the
respondent. I am not inclined to make such
an order. The respondent
acted in response to a Government directive (on national level) which
was aimed at curtailing a waste
of public funds by
inter alia,
outlawing the suspension of employees on full pay for long periods
and “golden handshakes” in lieu of disciplinary
action.
The respondent then decided not to keep the applicant on suspension
and summarily dismissed him without a hearing. The
directive in
question may have been somewhat capricious despite its laudable aims,
but the respondent’s response thereto,
albeit wrong, does not
invite a punitive costs order, in my view.
[36] The following
order is made:
1. The termination of
the applicant’s contract of employment without a hearing,
constitutes a breach of contract.
2. The respondent is
ordered to reinstate the applicant forthwith in his position as
Director: Planning and Development, with retrospective
effect from
the date of his dismissal.
3. The respondent is to
pay the applicant’s costs, including the costs of two counsel,
on a scale as between party and party.
___________________
E REVELAS
Judge of the High
Court
Counsel for the
Applicant
: Adv PWA Scott SC &
Adv PN Kroon
Port Elizabeth
Instructed by
:
Wikus van Rensburg Attorneys
Port Elizabeth
Counsel for the
Respondent
: Adv GG Goosen SC
Port Elizabeth
Instructed by
:
Joubert Galphin & Searle
Port Elizabeth
Date Heard
:
17 June 2011
Date Delivered:
30 September 2011
1
2002(1)
SA 49
2
Paragraph
[73] at 262 F-G, 263 A-B.
3
345/09
[2010] ZA SCA 144.
4
Supra,
footnote
5
2010(3)
SA 601 (SCA).
6
(2011)
32 ILJ 732 LC.