National Electronic Media Institute of South Africa v Buthelezi (JA19/03) [2004] ZALAC 7 (9 July 2004)

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[2004] ZALAC 7
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National Electronic Media Institute of South Africa v Buthelezi (JA19/03) [2004] ZALAC 7 (9 July 2004)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
CASE
NO: JA 19/03
In
the matter between:
NATIONAL
ELECTRONIC MEDIA INSITUTE OF SOUTH AFRICA
Appellant
and
NKANYISO
BUTHELEZI
Respondent
JUDGMENT
WILLIS
JA
:
[1]
The Labour Court (
per
Pammenter AJ) granted the following order on 30
th
January, 2003:
“
1. It is declared that
the continued refusal by the Respondent to allow the Applicant to
tender his services and to perform his duties
in terms of his
contract of employment between the parties is unlawful and amounts to
a repudiation of the said contract;
2. The Respondent s
ordered to pay the Applicant’s remuneration for the period 6 April
2002 until date of this order, and thereafter
to pay his remuneration
in the ordinary course as provided for in his contract of employment;
3. The
Respondent’s obligation, provided for in paragraph 2 above, to
continue paying the applicant in the ordinary course in terms
of his
contract of employment is subject to the Applicant rendering services
in terms of such contract, if called upon to do so by
the Respondent;
4.
Nothing in this order shall be construed as precluding the Respondent
from taking steps in terms of the
Labour Relations Act 66 of 1995
as
regards the applicant’s employment;
5 The respondent is
ordered to pay 75% of the applicant’s taxed costs of this
application.
”
The
Court a quo granted relief in the form sought by the employee.
Reasons were furnished later. The reference in the order to the
applicant was a reference to the present respondent and the reference
to the respondent was a reference to the present appellant.
The
appellant (to which I shall refer as “the employer”) appeals
against this order with the leave of the Court
a
quo
.
[2]
The respondent (to whom I shall refer as “the employee”) had been
employed by the employer as the Head of Corporate Services
on a
renewable three-year contract. His responsibilities included the
overall management and control of the finance and administrative
services component of the employer. He reported directly to the
Executive Director, Ms Thandi Bengu-Towo.
During
February 2002, the employee was charged with the following acts of
misconduct:
“
1.
Undermined the authority of the Executive Director
2.
Behaviour unbefitting a head of department which is tantamount to
gross insubordination.
3.
Gross misconduct-Your behaviour at the meeting of 14 February 2002.
4.
Behaviour and actions which have brought about a breakdown in the
Employer/Employee trust relationship.
”
To
this was later added, before the disciplinary hearing, a charge of
gross negligence which related to authorising accommodation
for
students at the Eskom Convention Centre in excess of budget
allowances. A disciplinary enquiry was held during March 2002. The
disciplinary enquiry was chaired by an attorney, Mr Yusuf Nagee. He
presented a report to the executive director dated 4 April, 2002.
In
terms of that report he found the employee guilty of all acts of
misconduct with which he had been charged. The report ended as
follows:
“
I
took into account the Employee’s personal circumstances, however in
view of the seriousness of the charges and the breakdown in
the
relationship, I recommend that he be dismissed.
”
[3] It
would appear that during a teleconference board meeting of the
employer held on 5
April,
2002, a decision was taken to dismiss the employee. The employee then
lodged an internal appeal. The appeal hearing was chaired
by one
Advocate W R Mokhari. Advocate Mokhari presented a report which was
given to the employee on 9 July, 2002. Advocate Mokhari’s
findings
read as follows:
“
1.
The appeal is upheld;
2.
The finding of the chairman a quo (Mr Y. Nagdee) is reversed to read
as follows:
2.1 I
find the employee, Mr Nkanyiso Buthelezi not guilty of all charges;
2.2
The employee is to be reinstated into his former position with
retrospective effect from the date not earlier than the date of
his
dismissal with all benefits accruing to him;
2.3
in the event it is not practicable to reinstate the employee into his
former position, the employee is to make adequate placement
of the
employee in a position not less favourable than the one the employee
held prior to his dismissal.
”
[4] In
a letter to the employee advising him of the outcome of the appeal
hearing, the Chairperson of the employer’s board, Ms Pumelele
Ntombela-Nzimande, advised him, among other things, as follows:
“
There
could be no substantive or procedural grounds for dismissal as per
the findings.
”
and
“
The
Board has decided to institute an exit mechanism on the grounds that
your relationship with the organization is not reconcilable.
”
A member of the Board was appointed to negotiate a settlement with
the employee. The two of them met but could not reach agreement.
Thereafter, a member of the Board recommended to it that attempts be
made to reconcile the Executive Director and the employee so
that the
employee could continue in the employer’s employ. Her
recommendation was apparently ignored. The employee’s attorneys
subsequently addressed a letter to the employer on 14
August,
2002, protesting the failure of the employer to pay the employee or
to allow him to resume his duties. In that letter the
employee
tendered his services from 19 August, 2002. The Executive Director
replied by way of a letter dated 15
August,
2002 in which she said, among other things, the following:
“
Please
be advised that Advocate Mokhari recommended that your client, Mr
Buthelezi, be reinstated. However, NEMISA has taken a decision
not to
reinstate him. He is therefore not required to present himself at
NEMISA on Monday, 19
th
August, 2002. Your client has all the right to take this matter to
the Council for Conciliation, Mediation and Arbitration for the
alleged unfair dismissal. The Board has, however, resolved that they
will prefer to resolve this matter amicably should this be possible.
”
Subsequent attempts to resolve the dispute proved fruitless. The
employee then brought an urgent application in the Transvaal
Provincial Division of the High Court. The employee had sought
substantially the same relief which it sought in the Court
a
quo
.
This application was struck off the roll on 15 November, 2002 as the
Court apparently took the view that it did not have jurisdiction
to
hear the matter. The employer alleges that, in addition, the Court
took the view that the matter was not urgent.
[5]
The employee then brought an urgent application in the Court
a
quo.
The
application was served on the employer on 12 December, 2002 and was
heard on 19
th
December, 2002. At that stage the employer had filed no notice of
intention to oppose the application. Pillay J ordered the issue
of a
rule
nisi
.
The employer delivered its answering affidavits on or about 27
December, 2002. The employer then anticipated the return day which
resulted in the order given by Pammenter AJ on 30
January,
2003.
[6]
The appellant submits that the Court
a
quo
erred
in the following respects:
It
heard the matter as one of urgency when it should not have done so;
It
did not have jurisdiction to hear the matter in view of the
provisions of
section 191(1)(a)
(ii) of the
Labour Relations Act, No
66 of 1995
as amended (“the LRA”);
In
finding that “
the
applicant was not dismissed by the respondent and that he therefore
followed the correct procedure in approaching the Court
directly.
”;
The
requirements for a final interdict were not satisfied.
I
shall deal with each of these grounds in turn.
[7]
Urgency
This
ground is of academic relevance. The employer was given an
opportunity to file answering affidavits and did so. It was given
a
full and proper hearing. I can see no reason why the employer’s
complaint about the decision of the Court a quo to accept that
the
matter was urgent should be a basis for an appeal when there has been
no complaint that, because the matter was heard on an urgent
basis,
the employer was not afforded a fair opportunity to be heard. No
authority to justify a contrary conclusion was given to us.
This
ground of appeal stands to be rejected.
[8]
The Court’s alleged
lack of jur
isdiction
to hear the matter in view of the provisions of
section 191(1)(a)
(ii) the LRA
Section
191(1)
(a) of the LRA provides as follows:
“
If
there is a dispute about the fairness of a dismissal or an unfair
labour practice, the dismissed employee or the employee alleging
the
unfair labour practice may refer the dispute in writing to-
a
council, if the parties to the dispute fall within the registered
scope of that council;or
the
Commission, if no council has jurisdiction.
”
(emphasis added)
It
was submitted on the employer’s behalf that the Court a quo did not
have jurisdiction to hear this matter. The argument was that
the
employee should instead have referred his dispute to the CCMA in
terms of
section 191(1)
of the Act rather than approach the Court for
the relief which he sought. This provision relates to the referral of
disputes relating
to an alleged unfair dismissal or an alleged unfair
labour practice. The employee does not rely on an alleged unfair
dismissal. He
also does not rely on alleged unfair labour practice.
There is accordingly no dispute between the parties about the
fairness of any
dismissal. In the absence of such dispute, no
referral to the CCMA would have been competent. The employee relies
on his common law
rights. In terms of section 77(3) of the Basic
Conditions of Act No 75 of 1997, “
The Labour Court has
concurrent jurisdiction with the civil courts to hear and determine
any matter concerning a contract of employment,
irrespective of
whether any basic condition of employment constitutes a term of that
contract.
” It is clear that
the Labour Court had jurisdiction to hear and determine this matter.
There is no merit in the submission that
the Labour Court did not
have jurisdiction to grant the relief which it did.
[9]
The
merits
At
common law, until an employee’s services have lawfully been
terminated, an employer is obliged to remunerate the employee upon
the tender, by the employee, of his or her services but the employer
is not, however, obliged to make use of the employee’s services.
(See, for example,
Smit
v Workmen’s Compensation Commissioner
1979
(1) SA 51
(A); at 56F-G;
Toerien
v Stellenbosch University
1996 (1) SA 197
(C) at 201B-C;
National
Union of Textile Workers v Jaguar Shoes (Pty) Ltd
1987
(1) SA 39
(N) at45H-46I. In this matter the employee’s claim is
dependent, essentially, upon whether there was a valid and
enforceable contract
of employment between himself and the appellant
during the relevant period and whether, during that same period, he
tendered his
services. It is common cause that he did, indeed, tender
his services. It is common cause that the employer did not accept
this tender.
In these circumstances, the employee would be entitled
to payment of his remuneration provided there was a valid contract of
employment
between the parties. The employer’s defence is that the
employee had been dismissed during the relevant period and, because
of
this, it was not, so the argument went, obliged to pay the
contested remuneration.
[10] In
the light of the above, the determinative issue both in the Court a
quo and before us, was whether the employee had been dismissed
prior
to the relevant period. If he had been validly dismissed, his
application should have been dismissed. If, however, he had not
been
validly dismissed, the employer’s defence was correctly rejected.
The Court a quo found that subsequent to the internal appeal
the
employee was not a dismissed employee. It found that there was a
contract of employment between the appellant and the respondent
when
the appellant would not allow the respondent to resume his duties.
However, in its judgement granting leave to appeal the Court
a quo
referred to section 90 (2) (b) of the Act and indicated that it might
have been wrong in finding that the employee had not
dismissed. It
reads as follows:
“
if
the employer refused to allow an employee to resume work, the date of
dismissal is the date on which the employer first refused
to allow
the employee to resume work.” In my opinion, section 90 (2)(b)
applies only where there is a dispute about an alleged
unfair
dismissal. As has been noted before, there has been no alleged unfair
dismissal dispute in this case. The concerns of the
Court a quo is
granting leave to appeal are not justified.
[11] In
relation to the question of whether or not the employee had been
dismissed, the employer submitted that on the papers there
was a
material dispute of fact whether the employee was a dismissed
employee when it did not allow him to resume his duties. The
employer
submitted that, on the basis of
Plascon
Evans Paints
v
Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-G, the Court a quo should have decided the
matter on the basis of its version as the respondent in those
proceedings
as because there was no request for the matter to be
referred to oral evidence. The employer submitted that the Court a
quo erred
in this regard. Although the employer alleges that the
employee had been dismissed, it is clear from the papers that the
only time
he was dismissed was on 5 April, 2002. This decision was
reversed and set aside by Advocate Mokhari. There is no allegation
that
he was dismissed again after Advocate Mokhari’s decision. The
Court a quo fount that, as the dismissal had been set aside during
the internal appeal by Advocate Mokhari, there was no valid dismissal
of any force and effect and, therefore, the employee was entitled
to
the relief he sought. The dismissal was clearly reversed by the
chairperson of the appeal tribunal.
[12]
It is clear from the employer’s letter of the 9
th
July 2002 to the employee that the employer accepted that its
decision to dismiss the employee had been reversed by Advocate
Mkhari.It
would render nugatory the established practice of employees
having a right to take a decision to dismiss to an internal or
“in-house”
or “domestic” appeal tribunal, if Advocate
Mokhari’s unequivocal decision to set aside the dismissal could be
ignored. As
noted above, there has been no allegation that the
employee was dismissed again after Advocate Mokhari’s decision.
There was no
genuine dispute of fact as to whether or not the
employee had been validly dismissed. (See the
Plascon
Evans
case at
634IC.) Accordingly the Court
a
quo
did not err in
finding that the employee did not have the status of a dismissed
employee.
[13]
The requirements for
a final interdict were allegedly not satisfied
In
the leading case on this issue,
Setlogelo
v Setlogelo
1914 AD
221
at 227, Innes JA, as he then was, said: “
The
requisites for the right to claim an interdict are well known: a
clear right, injury actually committed or reasonably apprehended,
and
the absence of similar protection by any other ordinary remedy.
”
The employee’s dismissal had been set aside in an internal appeal.
He therefore remained in employment. He tendered his services.
He had
a clear right to be paid his salary. The employer was clearly in
breach of this right and on a continuing basis. I do not
think it
would be a satisfactory remedy for the employee to wait until he had
proven a claim for damages for non-payment of salary.
In my opinion,
the requirements for a final interdict were indeed satisfied.
[14]
There is no reason why costs should not follow the result.
[15]
The appeal is dismissed with costs.
N.P.
WILLIS
JUDGE
OF APPEAL
I
agree.
R.
M. M. ZONDO
JUDGE
PRESIDENT
I
agree.
C.
N. JAFTA
ACTING
JUDGE OF APPEAL
Counsel
for Appellant:
G. A.
Fourie
Attorneys
for Appellant: Pienaar Swart & Nkaiseng Inc.
Attorneys
for Respondent: Lebea & Associates
Date
of hearing: 18
th
May, 2004
Date
of Judgment: 9
th
July, 2004