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2024
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[2024] ZALCJHB 187
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Tabane v Railway Safety Regulator (JS435/23) [2024] ZALCJHB 187 (8 May 2024)
IN THE LABOUR COURT IN
JOHANNESBURG
CASE NUMBER: JS435/23
In the matter between:
MAMANKOANE
TABANE
APPLICANT
and
RAILWAY
SAFETY REGULATOR
RESPONDENT
Hearing date: 22 March
2024
Judgment date: 8 May 2024
Summary:
The employee was dismissed for poor performance at
the end of a probation period whilst employed on a 5 year fixed term
contract.
Two years later she referred a breach of contract claim to
the Labour Court in terms of s 77(3) of the BCEA. The employer gave
notice of an exception that her cause of action, properly construed
was a probation dispute arising from the LRA and the Labour
Court had
no jurisdiction to entertain the matter as the CCMA was the
appropriate forum and arbitration the appropriate dispute
resolution
process. In light of the 2021 Constitutional Court decision in
Baloyi
v Public Protector
and others
,
and as applied in 2024 by the Labour Appeal Court in
PRASA
v Ngoye
the exception was dismissed.
The court found that it had jurisdiction to hear a claim of breach of
contract from facts pertaining
to a dispute about probation.
Judgment
Introduction
1.
Ms Tabane (the “employee” / the “Applicant”)
entered into a five year fixed term contract with
the Railway Safety
Regulator (the “employer” / the “Respondent”)
for the period 3 August 2020 to 3 August
2025. Ms Tabane was
appointed as the Executive Manager: Legal Services and the Company
Secretary to the Board. Her cost to company
remuneration was R
1 543 675.00 per annum.
2.
Included in the contract of employment was a probation clause which
reads,
“
The
employee will serve the probationary period of six months, during
which period her skills, general attitude, quality of work
and
suitability for continued employment will be assessed. The result of
the employee’s assessment and what it translates
to, will be
communicated to the employee in writing at the end of the probation
period
.”
[1]
3.
Towards the end of the
probation period (January 2021) the Board resolved that sections of
the probation policy were not complied
with during the employee’s
probation, and that her period of probation be extended by 3
months.
[2]
4.
The then acting CEO Mr Selaledi refused to assess the employee on the
basis of a monitoring and evaluation supervision
form in line with
the probation policy, insisting that the employee sign a performance
agreement and be assessed in those terms.
5.
The employee alleges that the employer failed to:
5.1.
ensure that there was a mid term probation review;
5.2.
identify performance standards as required by the probation policy;
5.3.
identify performance shortcomings and give the employee an
opportunity to address them; and
5.4.
used the wrong instrument for assessment.
6.
The Railway Safety Regulator dismissed the employee in mid 2021
(after various litigation skirmishes ventilated in the
Labour Court)
for poor performance.
Litigation
7.
On 13 July 2023 the employee approached the Labour Court for relief,
by filing a Statement of Claim.
8.
The employee sets out the background summarised above and claims that
the employer has breached her contract of employment,
in particular
by breaching the probation policy. She submits that as a result of
the breach she has suffered damages which are
quantified as follows:
8.1. Loss of income
over 4 years (the remainder of the contract) to the value of R
6 250 700.00; and
8.2. General
damages for impairment of her career to the value of R5 million.
9.
The employee seeks R11 250 700.00 from the Railway Safety
Regulator plus interest, as well as costs.
10.
The employee submits that the Labour Court has jurisdiction to hear
the matter by virtue of section 77(3), read with section
77A(e) of
the Basic Conditions of Employment Act, 1997 (the “BCEA”).
11.
On 3 August 2023 the Railway Safety Regulator filed a notice of
exception on the basis that the Statement of Claim does
not disclose
a cause of action; and that the Statement of Claim is vague and
embarrassing.
12.
The notice reads,
“
An
alleged breach of the probation policy and the probation clause in
the contract of employment does not constitute an actionable
claim
upon which the Labour Court retains jurisdiction in terms of section
77(3) or section 77A(e) of the BCEA
‘
An
alleged breach of the probation policy, and or probation clause in an
employment contract is actionable in accordance with the
provisions
of the Labour Relations Act, read with schedule 8…”
[3]
13.
The employer delivered the exception on 15 March 2024, (although this
pleading was signed on 6 December 2023).
14.
Various litigation steps
were taken over time.
[4]
I have though focussed on
the key issue before me which is whether or not the employee has
disclosed a cause of action justiciable
in the Labour Court. It is to
this issue that I now turn.
Jurisdiction
in the Labour Court
15.
The
jurisdiction of the Labour Court is set out in
section 157
of the
Labour Relations Act 1995
. Subsection 1 reads, “
Subject
to the Constitution and section 173
[5]
,
and except where this Act provides otherwise, the Labour Court has
exclusive jurisdiction in all matters that elsewhere in terms
of this
Act, or in terms of any other law are to be determined by the Labour
Court
.
16.
Provisions in the LRA dealing with probation are
set out in section 186(2)(a) under the Unfair Labour Practice (“ULP”)
provisions, and in item 8 of the Code of Good Practice: Dismissal. A
dispute about the dismissal of an employee for reasons relating
to
probation must be referred to the CCMA (or a bargaining
council) for conciliation, and if the dispute remains unresolved
to
the CCMA (or a bargaining council) for arbitration. The relevant
sections in the LRA are sections 186 (2)(a), 191 (1); 191(4);
191
(5)(a)(iv); 191 (5)(A)(a) and (b).
17.
According to section 157(5) the Labour Court does
not have jurisdiction to adjudicate an unresolved dispute if the LRA
or any employment
law requires the dispute to be resolved through
arbitration.
18.
The employer argues that a dispute about probation
gives rise to a cause of action founded in the LRA and not the BCEA.
Probation
disputes fall under the ULP provisions of the LRA.
Similarly dismissal disputes following probation fall under the
unfair dismissal
provisions of the LRA. The dispute resolution
process envisaged in the LRA is conciliation followed by arbitration
at the CCMA
(or a bargaining council). It is therefore the CCMA which
in the ordinary course would have jurisdiction over the dispute
between
the parties. The Labour Court does not have jurisdiction as a
court of first instance to deal with probation related disputes. This
view is strengthened by section 157 (5) of the LRA. However the
analysis does not end there.
19.
I am cognizant of the fact that the employee has
framed her claim as one of breach of contract, arguing that the
probation clause
and probation policy constituted part of the
contract of employment, that the employer breached her contract, and
that she is therefore
entitled to pursue a damages claim against the
employer in the Labour Court by virtue of section 77(3) read with
77A(e ) of the
BCEA. Whilst that position is arguable, so too is the
employer’s: the forum which has jurisdiction over the matter
would
in the ordinary course be the CCMA as the heart of the dispute
concerns the termination of the employee’s employment following
an assessment of her performance whilst on probation.
20.
It appears that the employee has sought to
circumvent the selected procedures laid down in the
Labour Relations
Act in
favour of direct access to the Labour Court by virtue of
section 77(3)
of the BCEA. She has avoided the prescription periods
of 30 days for a referral of an unfair dismissal; or 90 days for an
ULP dispute;
and she has avoided the CCMA’s conciliation and
arbitration processes.
21.
I have
considered the recent Constitutional Court decision in
Baloyi
v Public Protector and others
[6]
which
deals with a dispute concerning the termination of an executive’s
five year fixed term contract of employment just three
months after
the end of her six month probation period. The Constitutional Court
considered jurisdictional issues pertaining to
the High Court and the
Labour Court for alleged breaches of contracts of employment. The
Constitutional Court found that both the
High Court and Labour Court
had jurisdiction over such claims.
[7]
The
court found too that more than one cause of action may flow from the
termination of a contract of employment and a litigant
could choose
which cause of action to pursue. Paragraph 41 reads, “
The
termination of a contract of employment has the potential to found a
claim for relief for infringement of the LRA, and a claim
for
enforcement of a right that does not emanate from the LRA (for
example a contractual claim)
”
.
22.
Recently
in the Labour Appeal Court in
PRASA
v Ngoye
[8]
,
Waglay JP comments that “
While
the CCMA has exclusive jurisdiction to enforce LRA rights this was
not the case with other rights such as contractual rights
.
[9]
Waglay
JP refers too to the Constitutional Court decision in
Steenkamp
and Others v Edcon Limited
[10]
and
comments, “…
Edcon
suggested that employees are not precluded from pursuing claim
emanating from dismissals in a manner other than that provided
for in
the LRA…where the law permits forum shopping; a litigant
cannot be denied relief just because it is engaged in forum
shopping
.”
Later on Waglay JP writes, “…
if
non-compliance with the LRA is not relied on, an employee may pursue
a contractual claim if a contractual remedy is sought
.”
[11]
23.
I concur with Waglay JPs analysis that
“…
litigants
are now easily able to jettison the LRA rights afforded to them in
favour of having their dispute adjudicated as a contractual
claim or
one based on unlawfulness. This despite the fact that the dispute
would never have arisen if it were not for the dismissal
or the
ULP
.”
[12]
24.
As mentioned earlier the Respondent has excepted
to the Applicant’s particulars of claim. An exception is a
legal objection
intended to address a defect inherent in the other
party’s pleadings. Whilst it is arguable that the employee’s
claim
of a breach of contract as a cause of action is simply a cloak
for an LRA related probation dispute, she is entitled to proceed
as
she has claimed. The employer’s exception therefore cannot be
sustained.
25.
I am uncomfortably but respectfully bound by the
decision and reasoning of the Constitutional Court in
Baloyi
,
and as such must find that Ms Tabane may approach the Labour Court to
hear her breach of contract claim.
Section 77(3)
of the BCEA gives
her that right as does recent jurisprudence on the matter.
26.
In the circumstances I make the following order:
Order
27.
The Respondent’s exception is dismissed
28.
The Respondent is to file its response within 10
court days of receipt of this judgment.
29.
No order as to costs.
Norton
AJ
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Adv Skosana SC
LB Nwamba Attorneys
For
the Respondent: Adv Mokhare SC
Moja Sibiya Attorneys
[1]
Clause
4, pg 18 of the Pleadings
[2]
Statement
of Claim, pg 4
[3]
Paragraphs
5 and 6, pg 27 of the Pleadings.
[4]
The Applicant notified the court that the period for delivering an
exception expired on 22 August 2023
On
10 October the Applicant served a notice of bar calling on the
defendant to file its statement of response or exception within
5
days, They did not
On
12 October the Railway Safety Regulator gave notice of an irregular
step on the basis that the notice of exception had not
been
determined.
The
Applicant argued that the Respondent has became barred from
filing the exception on 18 October 2023.
29
November 2023 the Applicant filed an application for default
judgment.
[5]
Jurisdiction of the Labour Appeal Court
[6]
[2021]
4 BLLR 325 (CC)
[7]
Paragraph
31
[8]
JA
78 / 21
[9]
Paragraph
10
[10]
2016
(3) BCLR 311 (CC)
[11]
Paragraph
19
[12]
Paragraph
26