National Entitled Worker's Union v Commissioner for Conciliation Mediation and Arbitration (CCMA) and Others (JA51/03) [2007] ZALAC 3; [2007] 7 BLLR 623 (LAC); (2007) 28 ILJ 1223 (LAC) (13 March 2007)

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[2007] ZALAC 3
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National Entitled Worker's Union v Commissioner for Conciliation Mediation and Arbitration (CCMA) and Others (JA51/03) [2007] ZALAC 3; [2007] 7 BLLR 623 (LAC); (2007) 28 ILJ 1223 (LAC) (13 March 2007)

17
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JA51/03
In the matter between
NATIONAL ENTITLED WORKER’S
UNION APPELLANT
And
COMMISSIONER
FOR CONCILIATION,
MEDIATION AND ARBITRATION (CCMA)
1
ST
RESPONDENT
NANA KEISHO N.O 2
ND
RESPONDENT
GEORGE LALETA MANGANY 3
RD
RESPONDENT
MINISTRY:
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT REPUBLIC OF SOUTH AFRICA
4
TH
RESPONDENT
THE
MINISTER: JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 5
TH
RESPONDENT
REPUBLIC OF SOUTH AFRICA
MINISTRY:
LABOUR REPUBLIC OF
SOUTH AFRICA 6
TH
RESPONDENT
THE
MINISTER OF LABOUR REPUBLIC
OF SOUTH AFRICA 7
TH
RESPONDENT
JUDGMENT
______________________________________________________________
Jappie
AJA.
Background
[1] The appellant is a registered
trade union duly registered as such under the Labour Relations Act,
Act No. 66 of 1995 (“the Act”).
On the 1
st
February 2001 the appellant employed the third respondent as a union
official. On the 21
st
March 2001 members of the appellant elected the third respondent as
its deputy president. It was expected that the third respondent
would
serve in office for a period of two (2) years. However on or about
the 6
th
April 2002, the third respondent wrote a letter to the general
secretary of the appellant advising that his services at the
appellant
were being terminated with immediate effect. The reason
given for resigning was “due to the manner/way in which this
organization
is being run I feel that it is impossible for me to
continue working and serving on the board of this organization.” A
dispute
arose between the appellant and the third respondent. The
appellant felt aggrieved by the third respondent’s resignation
because
the third respondent had not followed “a fair procedure and
given (sic) specific reasons.” The appellant took the view that for
that reason the third respondent’s resignation violated the
‘employer’s constitutional rights to fair labour practices”.
A
dispute arose between the parties whether the third respondent’s
resignation constituted an unfair labour practice
[2] On the 15
th
April 2002 the appellant referred the dispute to the first
respondent, complaining that “the third respondent had resigned
before
and without having followed in [a] fair procedure and given
(sic) specific reasons.” It said that in doing so, he had violated
his “employer’s constitutional rights to fair labour practices.”
Such rights, it was said, were conferred by section 23(1)
of the
Constitution. The desired outcome was stated to be “compensation
for this unfair labour practice.”
[3] The second respondent was employed
by the first respondent as a case management officer. She dealt with
the appellant’s referral
of the dispute to the CCMA. On the 18
th
April 2002 she wrote to the appellant acknowledging receipt of its
referral. However, she went on to inform the appellant that “the
case had been closed”. The reason she gave was that the first
respondent lacked “jurisdiction to entertain the matter as it did
not amount to “an unfair labour practice under the LRA”.
[4] The appellant thereafter applied
to the Labour Court, under section 158(1)(g) of the Act, for the
“ruling” of the second respondent
to be reviewed and set aside.
It also sought an order declaring in effect that the failure of the
Act and the Employment Equity Act
No 55 of 1998 (“ the EEA”) to
provide employers with a remedy against unfair labour practices
perpetrated against them by their
employees when provision is made
for such protection to employees against employers is
unconstitutional. Certain other consequentional
relief was also
claimed.
[5] In the proceedings before the
Labour Court the bases upon which the appellant attacked the decision
of the second respondent was
that the decision was taken without the
appellant and other parties-having been given an opportunity to be
heard and that the decision
was invalid as it was inconsistent with
sections 9,23(1) and 34 of the Constitution. The Labour Court
dismissed the application for
review. The reason given by the Labour
Court was that the concept of an unfair labour practice does not
embrace a labour practice
committed by an employee against an
employer. The Labour Court further concluded that the second
respondent correctly refused to
accept the appellant’s referral. It
stated that no purpose would have been served by affording the
appellant a hearing. It concluded
that the application to review and
set aside the second respondent’s decision, therefore, fell to be
dismissed. The Labour Court
found no merit in the appellant’s
complaint that the second respondent’s decision was
unconstitutional or that the Act and the
EEA were unconstitutional.
[6] The Labour Court refused the
appellant leave to appeal. The appellant petitioned this Court and
was granted leave to appeal against
the whole of the judgment of the
Labour Court.
[7]
The
Appeal
As
already indicated above the order that the appellant sought in the
Court a quo was in effect one that declared that the Act and
the EEA
were unconstitutional in so far as they fail to make it an unfair
labour practice for an employee to resign from his employer’s
employ without following a fair procedure and without a fair reason.
The appellant also sought an order that would effectively compel
the
passing of an Act within six months of the date of the order which
the appellant contended would have the effect of prohibiting
or
preventing “unfair discrimination of the employers” and to
prevent or prohibit employees from committing unfair labour practices
against their employers. The appellant also sought an order detailing
what the legislation it desired to be enacted would contain.
One of
the things that the appellant wrote should be included in such
legislation is a provision that would say: “
Desertion
is automatically unfair
.”
There were other orders sought which it is not necessary to refer to.
[8] In
the course of argument it was suggested to the union official who
appeared for the appellant that there could be merit in the
argument
that the first and second respondents were not entitled to decide
that the CCMA had no jurisdiction to entertain the dispute
without
affording the appellant an opportunity to be heard. It was pointed
out to the union official that, if the Court reached that
conclusion,
the matter might have to be remitted to the CCMA for it to be dealt
with properly by giving the appellant an opportunity
to be heard.
The union official elected to abandon this part of his case because
of the possible delays that could occur if the
matter were remitted
to the CCMA to be dealt with afresh. He elected to proceed before
this Court only in regard to the question
whether the failure of the
Act and or the EEA to provide for the protection of employers against
unfair labour practices perpetrated
against them by employees is
unconstitutional.
[9] The
nub of appellant’s argument is that under the Act and the EEA the
employer has no remedy and no means of enforcing his/her/its
rights
enshrined in section 9, section 23(1) and section 34 of the
Constitution.
[10] The appellant relied on the
provisions of section 9(1), and section 34 of the Constitution in
support of its case. With regard
to section 9(1) the appellant
contended that the failure by the Act and the EEA constituted a
violation of the employers’ rights
to equality before the law and a
denial of equal protection and benefit of the law as enshrined
therein.
Section 9 of the Constitution reads
thus:
“
9. Equality. -(1
)
-Everyone is
equal before the law and has the right to equal protection and
benefit of the law.
Equality includes the
full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and
other measures designed to
protect or advance persons or categories of persons, disadvantaged
by unfair discrimination may be taken.
The state may not
unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex,
pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National
legislation must be
enacted to prevent or prohibit unfair discrimination.
Discrimination on one or
more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination
is fair.”
Section 23(1) provides as follows:-
“Everyone
has the right to fair labour practices”.
Section 34 provides:-
“
Everyone has the right
to have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
[11] In support of its argument the
appellant referred to the case of
Roffey
v Catterall, Edwards Gaudre
(Pty) Ltd
1977 (4) SA
494
(N) at499E-H where it was said:
“
The explanation for
this habit is the supposed bargaining inequality of the employees,
which has long been taken for granted. No
doubt that was their
general condition once upon a time, and even today it is no rarity.
But it is surely unrealistic, nowadays
at any rate, to postulate such
imbalance as a universal truism. Economic development, industrial
legislation, trade unionism, and
other modern phenomena have so
strengthened large categories of employees that their negotiating
force is often equivalent or superior
to that of their employers.
The same may be the result of a mere demand for services which
exceeds the supply. Agreements between
unequal parties are easily
conceivable and frequently encountered, on the other hand, outside
the field of employment. The distinction
has therefore become archaic
and artificial.”
[12] In terms of section 1 of the Act,
the purpose of the Act is “
to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary objects
of
this Act…”. One of the primary objects given therein is that the
Act seeks “to give effect to and regulate the fundamental
rights
conferred by section 27 of the Constitution
.”
Of course, the reference to section 27 of the Constitution is a
reference to section 27 of the Interim Constitution of 1993.
That
reference must now be taken as a reference to section 23 of the final
constitution. Accordingly, this means that the Act seeks,
among other
things, to give effect to the constitutional right to fair labour
practices conferred on “everyone” by section 23(1)
of the
Constitution. In addition, section 2 of the Basic Conditions of
Employment Act 75 of 1997(“the BCEA”) provides that the
purpose
of that Act is “
to advance
economic development and social justice by fulfilling the primary
objects of this Act …
”
One of the primary objects of the BCEA as given in section 2 is “
to
give effect to and regulate the right to fair labour practices
conferred by section 23(1) of the Constitution …
”
The relevance of the BCEA is twofold. The one reason is that as
already indicated, part of its purpose is to give effect to and
regulate the constitutional right to fair labour practices provided
for in section 23(1) which the appellant relies upon. The second
is
that the BCEA makes provision in section 36 thereof for the
termination of a contract of employment by either party to it
including
by way of a resignation.
[13] In so far as section 185 of the
Act is relevant herein, it provides that “(e) very employee has the
right not to be –
(a) unfairly dismissed;”
Section 186 of the Act deals with the
meaning of “dismissal” and an “unfair labour practice”.
Section 186(1) reads:
“(1) Dismissal means that-
an employer has
terminated a contract of employment with or without notice;
an employee reasonably
expected the employer to renew a fixed term contract of employment
on the same or similar terms but the
employer offered to renew it
on less favourable terms, or did not renew it;
an employer refused to
allow an employee to resume work after she –
took maternity leave
in terms of any law, collective agreement or her contract of
employment; or
………
an employer who a
number of employees of the same or similar reasons has offered to
re-employ one or more of them but has refused
to re-employ
another; or
an employee terminated
a contract of employment with or without notice because the
employer made continued employment intolerable
for the employee.
an employee terminated
a contract of employment with or without notice because the new
employer, after a transfer in terms of
section 197 or section
197A, provided the employee with conditions or circumstances at
work that are substantially less favourable
to the employee than
those provided by the old employer.”
[14] It will be seen from the above
that, whereas the Act does provide for an employee’s right not to
be dismissed unfairly, it
makes no provision for the right of an
employer not to have the contract of employment terminated unfairly
by an employee. It is
clear form the meaning of dismissal in section
186 that dismissal does not include a situation where the employee
resigns unfairly
from the employer’s employ. This is the
appellant’s complaint.
[15] It is true that the Act does not
provide an employer with a cause of action and/or remedy where his
employee resigns or terminates
the contract of employment unfairly –
as opposed to unlawfully. However, I do not think that this failure
renders the Act unconstitutional.
Legislation is enacted if a need
for legislation has arisen.
Under the common law the employer’s
position was very strong as against an employee. If an employee was
dismissed lawfully e.g.
if he was given proper notice of termination
of his contract of employment or if he was paid notice pay in lieu of
notice, the employee
had no remedy in law even if the employer had no
reason to terminate the contract of employment or even if the
dismissal was very
unfair. The Courts could also not provide any
remedy in that situation. If the contract of employment was
terminated unlawfully,
generally speaking, the only relief that the
Courts could provide to such employee was to award the employee
damages which would
be equivalent to the notice pay he would have
been paid in lieu of notice. The unfair labour practice jurisdiction
was introduced
partly to provide employees with greater protection in
circumstances where there was a great need.
[16] In general the position of
employers is different from that of employees, particularly in this
country. In general terms it can
be said that, when an employer has
lost an employee due to resignation, the employer does not need the
Courts to deal with the situation.
Employers will normally simply
look for another employee and, in most cases, will find an employee
to replace the one who has resigned.
Where the employee has resigned
without giving notice in circumstances where he was obliged to give
notice, usually the employer
does not even sue the employee for
damages which in law he would be entitled to do and the damages would
be the equivalent of the
notice pay. However, if an employer wants to
sue an employee in such a situation, he does have a right to do so
both at common law
and in terms of the BCEA. Employers hardly use
even this right.
[17] Under the Labour Relations Act,
1956 (Act 28 of 1956)(“the old Act”) employers had a right to
bring unfair labour practice
claims against employees for virtually
any conduct on the part of employees other than a strike prior to
1988 and even for some period
after 1988 even then in regard to a
strike. The definition of an unfair labour practice in the old Act
was wide enough to cover even
a termination of a contract of
employment which was occasioned by the resignation of an employee.
And yet, when one has regard to
all the unfair labour practice cases
reported in the Industrial Law Journal from 1982 up to 1997 – a
period during which the Industrial
Court was active or operational –
one can hardly find a case brought to the Industrial Court by an
employer against an employee
complaining that the employee’s
resignation constituted an unfair labour practice. This situation
must be contrasted with the fact
that the Industrial Law Journal is
replete with cases brought by employees and trade unions against
employers concerning dismissals
that were alleged to constitute
unfair labour practices. The fact that employers had a right to bring
such claims in the Industrial
Court but hardly ever brought them
suggests that there was no need for such a right to be provided for.
Furthermore, it needs to
be pointed out that, when one has regard to
the current Act, one notes that this case appears to be the first one
where an employer
complains about this omission in the Act. And very
strangely, the employer who complains about this is not an ordinary
employer but
a trade union. This is a trade union which desires that
employers should have a cause of action based on unfairness and to
use it
to take employees to the CCMA or the Labour Court when they
have resigned unfairly. This is strange, indeed!
[18] Why does this employer cum trade
union want employers to have such a right? I assume that this
employer cum union would not be
satisfied with the position that, if
the resignation is unlawful, the employee would be obliged to pay the
employer damages by way
of notice pay but wants to seek an order for
compensation such as the compensation claimable by an employee under
section 194 of
the Act. I assume further that the employer would want
an order for the reinstatement of the employee. If such an order were
to be
made, the employee could be compelled to work for an employer
whom he does not want to work for anymore.
[19]
South Africa is not the only country which makes provision for
employees not to be unfairly dismissed and makes no provision
for
employers not to be subjected to unfair resignations. Even the ILO
Convention 158 on the Termination of Employment provides protection
for workers against unjustified dismissals but makes no provision for
the protection of employers against unfair or unjustified
resignations
by employees.
[20] In the light of all of the above
it seems to me that generally it is not thought that employers need
any protection against unfair
resignations by employees. And, if
there is no problem in this regard, there is no need for legislation
conferring such protection
upon employers. Employers are sufficiently
powerful when compared with individual workers acting individually to
be able to deal
with unfair resignations adequately without a
statutory right not to be subjected to unfair resignations. The
remarks made by Didcott
J in the Roffey case referred to above cannot
be read to mean that the majority of employees now have equal
bargaining power with
employers. The majority of workers in this
country are still ununionised and remain extremely vulnerable.
[21] I note that in
Ex
parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa
,
1996 (1996) 17 ILJ 821 (CC) at 840 B – 842C the Constitutional
Court dealt, among others, with a complaint by some employers that
the failure of the text of the final Constitution to include the
employers’ right to lock-out when it included the employees’
right to strike offended against the principle of equality. The
Constitutional Court said that this argument was based on the
proposition
that “
the
right of employers to lock-out is the necessary equivalent of the
right of workers to strike and that, therefore, in order to
treat
workers and employers equally, both should be recognised in the NT
.”
(par 665 of the judgment). The Constitutional Court went on to hold
that “(t) hat
the
proposition cannot be accepted
.”
The Constitutional Court expressed the view:
“
Collective bargaining is based
on the recognition of the fact that employers enjoy greater social
and economic power than individual
workers.
”
(par 66).
I pause here to point out that, with
regard to the present case, it can be said that protection against
unfair termination of contracts
of employment is based on the fact
that employers enjoy greater social and economic power than that
which individual workers have.
That is why legislation, not only in
this country but also in many other countries in the world, makes
provision for the protection
of employees against unfair or
unjustified dismissals but provides no protection for employers
against unfair resignations or termination
of contracts of employment
against workers.
[22] In the last sentence in par 66
of its judgment the Constitutional Court stated: “
The
argument that it is necessary in order to maintain equality to
entrench the right to lock-out once the right to strike has been
included, cannot be sustained, because the right to strike and the
right to lock-out are not always and necessarily equivalent
.”
In the present case too, the argument is that the employer and the
employee are not being treated equally or the employer is
being
unfairly discriminated against because the employee is afforded the
right not to be dismissed unfairly but the employer is
not afforded a
right not to be subjected to an unfair resignation or an unfair
termination of the contract of employment by an employee.
In my view
the employer remains very economically strong compared to an
individual worker and the fact that this protection is afforded
the
employee but no similar protection is afforded the employer does not
come anywhere near to diminishing the power that the employer
has. If
legislation were enacted which would give employers such protection,
the weak position of the individual worker would be
weakened further
and that of the employer would be even stronger. Indeed such
legislation – which the Appellant would be very happy
with –
would be a step backwards in the field of labour relations and
employment law in our country.
[23] In all of these circumstances I
am of the view that the appellant’s appeal has no merits and should
be dismissed. As to costs,
I think that the appellant should be
ordered to pay the costs of the respondent who opposed this appeal.
It is difficult to understand
exactly what the appellant sought to
achieve by instituting this litigation. It just seems to me to have
been wholly unnecessary
from the point of view of practicality.
[24] In the result the appeal is
dismissed with costs.
Jappie
AJA
I agree.
Zondo
J.P
I agree.
H.M Musi AJA
Appearances
For the appellant : Mr D Maluleke
Instructed
by : National Entitled Workers Union
For
the respondent : Adv. V Soni SC
Instructed
by : State Attorney
Date
of judgment : 13 March 2007