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[2024] ZALCJHB 185
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Olivier v MEC North West Provincial Government Department of Education and Sport Development and Others (J581/2022) [2024] ZALCJHB 185 (24 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J581/2022
In the matter of:
ELIZABETH
PETRONELA OLIVIER
Applicant
and
THE MEC: NORTH WEST
PROVINCIAL
GOVERNMENT DEPARTMENT
OF EDUCATION
AND SPORT DEVELOPMENT:
MMAPHEFO LUCY
MATSEMELA
First Respondent
THE HEAD OF
DEPARTMENT: NORTH WEST
PROVINCIAL DEPRTMENT
OF EDUCCATION AND
SPORTS DEVELOPMENT:
SM
MAWASHE
Second Respondent
THE GOVERNMENT
EMPLOYEES PENSION FUND
Third
Respondent
THE GOVERNMENT
PENSIONS FUND ADMINISTRATIVE
AGENCY
Fourth Respondent
Heard:
12 March 2024
Delivered:
24 March 2024
JUDGMENT
WHITTINGTON, AJ
Introduction
[1]
The
applicant in this matter has instituted a claim in terms of Section
77 (3) of the Basic Conditions of Employment Act
[1]
,
1997 (BCEA).
[2]
In particular, the applicant claims that
the respondents have breached the provisions of the contract of
employment with the second
respondent by prematurely terminating her
employment.
[3]
In response to the allegations in the
applicant’s statement of claim the respondents originally
raised three points
in limine
.
[4]
The first of these, a plea of
lis
pendens
, was abandoned at the hearing
and nothing more need be said regarding that point.
[5]
What remains to be determined at this stage
of the proceedings is two points
in
limine
.
Background facts
[6]
The
first point
in
limine
is that the respondents allege, as it relates to an unfair dismissal,
the matter ought to have been referred to a bargaining council
in the
relevant sector for resolution in terms of Section 191 of the Labour
Relations Act
[2]
(LRA). Having
failed to do so, so the argument goes, the applicant is precluded
from approaching the Labour Court for relief as
the Labour Court has
no jurisdiction to hear the matter.
[7]
This
line of argument was comprehensively addressed by the Labour Appeal
Court in the matter of
South
African Municipal Workers Union obo Morwe v Tswaing Local
Municipality and Others
[3]
(SAMWU
v Tswaing). The Labour Appeal Court was required to consider an
earlier judgment in which it was held that,
where
a contract of employment is terminated or cancelled, lawfully or
unlawfully, fairly or unfairly, the jurisdiction of the Labour
Court
under section 77 (3) of the
BCEA
cannot
be invoked.
[8]
The Labour Appeal Court, in paragraph 9 of
the judgment, found that the notion that a dispute about the
termination of a contract
is outside the jurisdiction of the Labour
Court is misconceived.
[9]
The
respondents also rely on the provisions of Regulation 6 read with
Chapter G of the Employment of Educators Act
[4]
.
The regulation, so says the respondent, sets out that educators are
required to lodge a grievance relating to their employment
rights
within 90 days.
Analysis
[10]
Having
been referred to the Employment of Educators Act as aforesaid I noted
that reference appears to be incorrect. Nonetheless,
after traversing
all of the regulations to the Employment of Educators Act as a
courtesy to the respondents, I was able to find,
in the regulations
set out in GN 222 OF 18 February 1999
[5]
,
Chapter H and Regulation 3 (b) (i) thereof the provisions dealing
with grievances.
[11]
The provisions state that a grievant or
grievants may lodge a grievance or grievances with the head or the
supervisor in writing
within a reasonable period of time, but in any
event not later than 90 calendar days following the time and date on
which the alleged
grievance or grievances occurred.
[12]
It appears to me, from the plain wording of
this section, that a grievance may be lodged with the head or
supervisor within 90 days.
The provisions do not appear to be
peremptory and there is no indication in the regulations that any
failure to follow this grievance
procedure would preclude an employee
from following any other remedy they may have in law.
[13]
Accordingly, I am of the view that these
provisions do not operate to oust the jurisdiction of the Labour
Court in disputes relating
to a contract of employment.
[14]
The applicant was thus entitled to refer
the dispute regarding the termination of her contract of employment
to the Labour Court
in terms of the provisions of Section 77 (3) of
the
BCEA
and this
court does in fact have jurisdiction to hear the matter.
[15]
Accordingly, the first point
in
limine
falls to be dismissed.
[16]
The second
point
in limine
is likewise a jurisdictional
challenge in the sense that the respondents allege that the Labour
Court does not have the power to
directly enforce the provisions of
the BCEA and, so the argument goes, as the applicant seeks to rely
directly on the provisions
of the BCEA rather than on a breach of
contract the Labour Court lacks the jurisdiction to deal with the
applicant’s claim.
[17]
What the applicant actually alleges is that
the terms of her employment contract ought to be interpreted as
providing that her retirement
date was set to 1 January 2021.
[18]
I am alive to the fact that, on the papers,
there is a dispute as to whether the legislation relied upon by the
applicant did indeed
form part of her contract of employment. This is
a dispute for the court hearing the merits of the matter to determine
–
the point that I am asked to determine relates to whether the
applicant seeks to rely directly on the provisions of the act and
if
so whether this reliance ousts the jurisdiction of this court.
[19]
As
noted
by the Labour Appeal Court in the matter of
SAMWU
v Tswaing
[6]
jurisdiction is an issue decided on the pleadings.
[20]
As the plain intention was to engage the
jurisdiction of the Labour Court under section 77(3) of the BCEA, it
is appropriate to
take a charitable view and treat the averments as
if they had averred that specific performance of the terms of the
contract which
had been breached by the employer was sought.
[21]
I note that the applicant has not stated
whether the contract on which she relies is written or oral or
whether the terms relied
upon are express, tacit or implied. However,
as the applicant has not elected to raise an objection to the
formulation of the applicant’s
claim it would be inappropriate
for me to express any views on this aspect.
[22]
What is clear is that the applicant has
pleaded reliance on a breach of contract and does not rely directly
on the act. To this
end, the second point
in
limine
must also be dismissed.
[23]
Accordingly, I make the following order:
Order
1.
I record that the point
in
limine
relating raised by the
respondents in paragraph 5.1 of the statement of defence has been
abandoned by the respondents.
2.
The points
in
limine
raised by the respondents in
paragraphs 5.2 and 5.3 of the statement of defence are dismissed.
3.
There is no order as to costs.
D Whittington
Acting Judge of the
Labour Court of South Africa
Appearances
For the
Applicant:
E P Olivier
Instructed
by:
Erasmus
Inc Attorneys
For the
Respondent: L Qnebe
Instructed
by:
State
Attorney Johannesburg
[1]
Act
75 of 1997.
[2]
Act
66 of 1995, as amended.
[3]
[2022]
ZALAC 107
; (2022) 43 ILJ 2754 (LAC).
[4]
Act
76 of 1998.
[5]
GN
222 of 18 February 1999: Terms and conditions of employment of
educators determined in terms of
section 4
of the
Employment of
Educators Act, 1998
.
[6]
Cited above, at paragraph 7 thereof.