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[2024] ZALCJHB 177
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Laudium Secondary School Governing Body v Mooloo (JS793/21) [2024] ZALCJHB 177 (2 May 2024)
FLYNOTES:
LABOUR – Jurisdiction –
Automatically
unfair dismissal
–
Alleged
discrimination on grounds of religion, belief and political
opinion – Jurisdictional challenge raised –
Court has
jurisdiction over dispute – Alleges applicant was not
dismissed because he was engaged on fixed-term employment
contract
and term of contract expired – Issue to be determined at
trial – Special pleas are all dismissed save
for second
special plea to be determined at trial –
Labour Relations
Act 66 of 1995
,
s 191(5)(b).
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JS793/21
In
the matter between:
LAUDIUM
SECONDARY SCHOOL
Applicant
GOVERNING
BODY
SUDESH
MOOLOO
Respondent
In Re:
SUDESH
MOOLOO
Applicant
and
LAUDIUM
SECONDARY SCHOOL
Respondent
GOVERNING
BODY
Heard
:
19 April 2024
Delivered
:
2 May 2024
(This judgment was handed down electronically by
emailing a copy to the parties. Accordingly 2
nd
May 2024
is deemed to be the date of delivery of this judgment).
Summary:
Special
pleas, considered, and all dismissed, save for the second special
plea.
JUDGMENT
DANIELS J
Introduction
[1]
Mr Sudesh Mooloo (hereafter “Mr M” or “the
applicant”) is the applicant in the main dispute, a
dispute
about the fairness of his
alleged
dismissal. Mr M was employed
by the Laudium Secondary School (hereafter “the School”
or “the respondent”)
for over 20 years. His fixed term
contract was not renewed allegedly because of his expression of
political views and opinions,
which found little support in the
community serviced by the School.
[2]
Mr M referred a dismissal dispute to the Labour Court, alleging that
he was unfairly discriminated against, and his dismissal
was
automatically unfair.
[3]
The School has raised four special pleas. The applicant argued that
the first and second special pleas should only be
determined after
evidence is presented. The School raised a further jurisdictional
issue at the hearing, which it raised in correspondence
with the
applicant a few days before the hearing. The applicant argued that
this was trial by ambush.
[4]
Before addressing the special pleas, it is necessary to set out the
factual background.
Material
facts
[5]
Mr M was employed by the
School, through its School Governing Body
[1]
(the “SGB”) as an Afrikaans teacher. He was engaged on
successive three-monthly fixed term employment contracts for
a
lengthy period, which according to the applicant exceeds 20 years.
[6]
During the events set out below, Mr M was engaged on an employment
contract for the period 1 April 2021 to 30 June 2021.
[7]
Mr M is an ardent and outspoken Christian who regularly engaged in
religious debates on social media.
[8]
On 18 May 2021, Mr M posted a WhatsApp status update which read:
“
I
am not Anti-Palestine, but I am anti-Hamas. I stand with Israel
.”
[9]
Mr M resides in a predominantly Muslim community, who did not take
kindly to his WhatsApp post.
[10]
Mr M’s WhatsApp
post was made in relation to a highly emotive issue – the
long-standing hostilities between Israelis
and Palestinians
(including Hamas) in the Gaza Strip.
[2]
He was, of course, fully aware that his post would attract negative
reaction.
[11]
Following his WhatsApp post, Mr M received various threats, and
protests were held outside his home. Afraid for his safety,
the
applicant failed to report for duty.
[12]
The SGB sent a notice to the applicant on 26 May 2021, requiring him
to submit the necessary documentation to assess
the renewal of his
employment contract. The documentation was required by 2 June 2021.
[13]
The applicant alleges that he arranged a meeting with the School for
1 June 2021, to discuss his difficulties, but this
was cancelled by
the School. The School denies that any such meeting was arranged.
[14]
The applicant did not submit the required documentation by 2 June
2021.
[15]
On 15 June 2021, the School sent a further letter was sent to the
applicant. It was titled “Notice of Caution:
Discharge in terms
of section 14(1)(a) of the Employment of Educators Act.” It
recorded that the applicant had been absent
without leave since 1
June. It further recorded that the applicant was required to apply
for leave, or report for duty within 14
days, failing which he would
be deemed to have been discharged in terms of section 14(1) of the
Employment of Educators Act 76
of 1998 (hereafter “the
Educators Act”).
[16]
The School sent a further letter, also dated 15 June 2021, to the
applicant advising him that because he had failed to
submit the
documentation required (to have his employment contract renewed) the
School would not renew his employment contract.
[17]
The applicant referred a dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (hereafter the
“CCMA”)
on 12 July 2021. In the referral, the applicant alleged that he had
been unfairly dismissed because he had
a reasonable expectation of
renewal. He also alleged that his dismissal was automatically unfair
because the reason for his dismissal
was his religious and political
beliefs. The CCMA failed to enrol the dispute for conciliation and
issued no certificate of outcome
of conciliation.
[18]
The applicant referred a dispute to this court in which he alleges
that he had a reasonable expectation that his contract
would be
renewed, and he was dismissed because of his religious and political
beliefs. He alleged that he was unfairly discriminated
against as
contemplated in section 6(1) of the Employment Equity Act No. 55 of
1998 alternatively section 186(1)(b) and 187(1)(f)
of the Labour
Relations Act No. 66 of 1995 (hereafter “the LRA”).
Legal
issues and analysis
[19]
In respondent’s statement of defence, it raised four special
pleas. However, at court, the respondent raised a
further special
plea. The applicant argued that this amounted to trial by ambush. I
don’t agree. Prior notice was given to
the applicant. In any
event, the court is enjoined to consider all jurisdictional issues
regardless of when they are raised. This
new special plea will be
dealt with as the fifth special plea.
First
special plea:
Employment of Educators Act (the
“Educators Act”)
[20]
The applicant alleges that the applicant was deemed to be dismissed
in accordance with section 14(1)(a) of the Educators
Act which reads
as follows:
“
An
educator
appointed
in a permanent capacity
who is
absent from work for a period exceeding 14 consecutive days without
permission of the employer is deemed to be shall, unless
the employer
directs otherwise, be deemed to have been discharged from service on
account of misconduct.
”
(Own emphasis)
[21]
Section 1 of the Educators Act defines “educator” as an
individual appointed in an “educator establishment”
determined by the Department of Education. The applicant was not
engaged in an educator establishment determined by the Department.
Instead, the applicant was engaged by the SGB. Accordingly, the
applicant was not an educator as contemplated by the Educators
Act.
In any event, section 14(1)(a) applies only to educators engaged in a
permanent capacity and the applicant was not engaged
in a permanent
capacity. Section 14(1)(a) of the Educators Act clearly does not
apply to the applicant. Accordingly, the first
special plea is
dismissed.
Second
special plea: Fixed term employment contract
[22]
The respondent alleges that the applicant was not dismissed because
he was engaged on a fixed term employment contract,
and the term of
his contract expired.
[23]
The applicant, on the other hand, alleges that he has a reasonable
expectation that his contract would be renewed because,
among other
things, he had been employed for more than two decades on a fixed
term basis. The applicant also alleges he had a reasonable
expectation of renewal because he was a good employee and had been
recognised as such.
[24]
If the applicant can prove these allegations, the applicant would
have proved that he was dismissed in terms of section
186(1)(b) read
with section 192(1) of the LRA. The applicant states that this issue
cannot be determined in the absence of evidence
and he requested the
opportunity to lead evidence. It would be unfair to determine this
issue without affording the applicant an
opportunity to lead
evidence. In the circumstances, this issue must be determined at
trial.
Third
special plea: No referral under the Employment Equity Act
[25]
Section 6(1) of the Employment Equity Act reads as follows:
“
No
person may unfairly discriminate, directly or indirectly, against an
employee, in
any
employment policy or practice
,
on any one or more grounds, including race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or social origin,
colour, sexual orientation, age, disability, religion, HIV status,
conscience, belief, political opinion, culture, language, birth,
or
on any other arbitrary ground
.”
(Own emphasis)
[26]
Section 10(1) of the Employment Equity Act reads as follows:
“
In
this section, the word
‘
dispute’
excludes a dispute about an unfair dismissal
,
which must be referred to the appropriate body for conciliation and
arbitration or adjudication in terms of Chapter VIII of the
Labour
Relations Act
.”
(Own emphasis)
[27]
When section 6(1) and 10(1) of the Employment Equity Act are read
together it is clear that these sections are not applicable
to this
dispute. The court is not required to consider an employment policy
or practice. In the circumstances, no referral in terms
of the
Employment Equity Act was required.
[28]
The Employment Equity Act
is, in fact, entirely irrelevant. The dispute falls to be determined
under section 187(1)(f) of the LRA
which prohibits a dismissal based
on various listed grounds.
[3]
Section 187(1)(f) of the LRA prohibits dismissal on the basis of
religion, beliefs, political opinions.
[29]
The third special plea is, accordingly, dismissed.
Fourth
special plea: Jurisdiction of Labour Court
[30]
The respondent alleges that this court has no jurisdiction to hear
and determine any dismissal dispute where the applicant
has alleged
that the dismissal is the result of unfair discrimination. This
submission flies in the face of the express, and clear,
provisions of
the LRA.
[31]
Section 187(1)(f) of the LRA reads as follows:
“
A
dismissal
is automatically unfair
if the
employer, in dismissing the employee acts contrary to section 5 or,
if the reason for the dismissal is
–
(f)
that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability,
religion, conscience
,
belief, political opinion
, culture, language,
marital status or family responsibility
” (Own emphasis)
[32]
This dispute concerns an alleged dismissal where the applicant
alleges that the reason for his dismissal was his religion,
belief
and political opinion.
[33]
Section 191(5)(b) of the LRA states that an employee may refer a
dispute to the Labour Court for adjudication if the
employee has
alleged that the reason for dismissal is automatically unfair. This
is what the applicant has done.
[34]
Section 157(1) of the LRA states
inter alia
that the Labour
Court has jurisdiction in respect of all matters which are to be
determined by the court under the LRA or any other
law.
[35]
When section 187(1)(f) is read together with section 191(5)(b) and
157(1) of the LRA there can be no question that this
court has
jurisdiction over this dispute.
Fifth
special plea: there must be actual conciliation, or a certificate
[36]
Respondent alleges that following a referral to the CCMA or
Bargaining Council there must be an attempt to conciliate
the
dispute, and this has not happened because the CCMA never set the
matter down for conciliation. The respondent also alleges
further
that the dispute can only be referred to this court after a
certificate of outcome of conciliation has been issued, and
this has
not happened.
[37]
In
SAMWU
on behalf of Manentza v Ngwathe Local Municipality & others
[4]
(“
Ngwathe
”
)
the LAC held as follows:
On
a proper interpretation, s 191(5) of the
LRA entitles an employee
to refer an unresolved unfair dismissal
or unfair labour practice
dispute for arbitration to the CCMA or a bargaining council, in terms
of subsection (5)(a) thereof,
or
for adjudication to the
Labour Court,
in terms of subsection (5)(b) thereof, upon
the occurrence of either of two events: the issue of a certificate of
non-resolution
of the dispute or the expiry of the 30-day period from
either the CCMA’s or the bargaining council’s receipt of
the
referral
. The effect of this interpretation is that the
occurrence of either of these two events entitles an employee to
request the bargaining
council concerned or the CCMA to arbitrate the
dispute in terms of s 191(5)(a) of the LRA or to refer the
dispute to the Labour
Court for adjudication in terms of s
191(5)(b) thereof.’
(Own
emphasis)
[38]
In
National
Union
of
Metalworkers of SA v Intervalve (Pty) Ltd & others
[5]
(“
Intervalve
”
)
the majority judgment, per Cameron J (as he then was) of the
Constitutional Court stated as follows:
“
Section
191(5) stipulates
one
of two preconditions before the dispute can be referred to the Labour
Court for adjudication
:
there must be a certificate of non-resolution,
or
30 days must have passed
.”
(Own emphasis)
[39]
It is clear from both
Ngwathe
as well as
Intervalve
that a referral to this court, under section 191(5)(b) of the LRA,
does not require actual conciliation, nor does it require the
prior
issue of a certificate of outcome of conciliation.
[40]
The Constitutional Court
stated in
AMCU
and others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) and
others
:
[6]
“
Judicial
precedent is a principle of our law. It obliges lower courts to
follow decisions of higher courts, for as long as those
decisions
remain in operation
.”
[41]
The respondent referred
me to
Matunga
v G & R Hydraulics (Pty) Ltd
[7]
in which this court held that, despite a referral to conciliation
having been made, the issue of a certificate of outcome of
conciliation
was a jurisdictional prerequisite for a referral of an
automatically unfair dismissal to adjudication.
Matunga
contradicts the express
language of section 191 of the LRA, but it also contradicts the
abovementioned precedents. Accordingly,
Matunga
is clearly wrong, and I
do not intend to follow it.
[42]
In the circumstances, a referral of a dispute to this court in terms
of section 191(5)(b) of the LRA does not require
actual (prior)
conciliation, nor does it require the prior issue of a certificate of
outcome of conciliation. The LRA requires
only that the dispute must
be referred to conciliation. The fifth special plea is dismissed.
Costs
[43]
I have dismissed all the
special pleas, save for the second special plea which must be
determined after evidence has been presented
at trial. Accordingly,
it is premature to consider costs in relation to the special pleas.
In any event, as the Constitutional
Court has warned
[8]
costs do not automatically follow the result in employment disputes.
In the circumstances, law and equity do not compel me to make
a cost
order.
Conclusion
[44]
In the result, the special pleas are all dismissed save for the
second special plea which must be determined after all
the evidence
has been presented. There is no order as to costs. The dispute may be
enrolled for trial.
RN Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Advocate Nikki Stein
Instructed
by:
Malcolm
Lyons & Brivik Inc
For the
Respondent: Advocate M
Moolla
Instructed
by:
N Moola
Inc
[1]
Section 3(4)
of the
Employment of Educators Act No. 76 of 1998
, read
with
section 20(4)
of the
South African Schools Act No. 84 of 1996
permits public schools to establish posts additional to those
established through the Department of Education. In respect of
such
posts, the public school is the employer.
[2]
Mr M’s comment must be understood in context.
During
1948, Britain created the State of Israel on land that had been
inhabited by both Jews and Arab Palestinians. Hostilities
between
these groups led to the mass displacement of Palestinians. Many
Palestinians became refugees in the Gaza Strip.
Gaza fell into
the hands of Israel when it occupied the territory during 1967. The
conflict in the Gaza has continued, with Hamas
representing many
militant Palestinians, though Hamas is by no means representative of
all Palestinian people.
[3]
Section 187(1)(f)
of the LRA also prohibits dismissal on other
arbitrary grounds, which are analogous to the listed grounds.
[4]
(2015) 36 ILJ 2581 (LAC) at para 27
[5]
(2015) 36 ILJ 363 (CC) at para 32
[6]
(2020) 41 ILJ 1837 (CC) at para 24
[7]
Unreported Judgment (JS991/2020) ZALCJHB 343 (29 September 2021)
[8]
Zungu v
Premier of the Province of KwaZulu-Natal & others
(2018) 39 ILJ 523 (CC)