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[2012] ZALAC 18
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Phera v Education Labour Relations Council and Others (JA 81/10) [2012] ZALAC 18; [2012] 11 BLLR 1137 (LAC); (2012) 33 ILJ 2839 (LAC) (22 June 2012)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Reportable
Case no: JA 81/10
In the matter between:
James Phera
…..........................................................................................................
Appellant
and
The Education Labour
Relations Council
….............................................
First
Respondent
Lesley Ramulifo N.O.
…..........................................................................
Second
Respondent
Gauteng Department of
Education
….......................................................
Third
Respondent
The MEC for Education:
Gauteng
….......................................................
Fourth
Respondent
The Metropolitan
Raucall School
…...........................................................
Fifth
Respondent
Heard: 01 March 2012
Decided: 22 June 2012
Summary: Appeal-
jurisdiction of Bargaining Council test- whether objectively
speaking, the facts placed before the commissioner
established that
the commissioner had jurisdiction to entertain dispute.
Employment
relationship- employee assuming duties without the written permission
of the Department of Education contrary to the
application- such
assumption of duties not establishing an employment relationship per
se.
JUDGEMENT
Tlaletsi JA
Introduction
[1] The appellant in this
matter is appealing against the judgment and order of the Labour
Court (per Nyathela AJ) in which his
review application against an
award issued by the second respondent (“the commissioner”)
acting under auspices of the
first respondent (“the Bargaining
Council”) was dismissed with costs
1
.
The appeal is with leave of the court below.
Factual Background
[2] For a better
understanding of the issues in this appeal, a factual background is
apposite. The following facts are common cause.
On 24 July 2005, the
fifth respondent, which is a school in Gauteng Province falling under
the authority of the third respondent,
the Gauteng Department of
Education (“the school”) advertised a post for a
temporary educator for English first language
for grades 9 and 10.
The period of employment was to be 15 August 2005 to 31 December
2005. The heading of the advertisement read
‘Department of
Education Appointment’.
[3] The appellant applied
and was on 11 August 2005 interviewed for the advertised post by the
school’s Headmaster and the
Head of the English Department.
Subsequent to the interview the appellant was advised that his
interview was successful. The appellant
was given an “APPLICATION
FOR A TEMPORARY APPOINTMENT AS EDUCATOR” form for completion.
He completed the forms and
submitted them to the school on 15 August
2005. On the form, where he appended his signature, the following was
written thereunder:
‘
URGENT: EDUCATORS ARE NOT
ALLOWED TO ASSUME DUTY WITHOUT THE WRITTEN PERMISSION OF THE DISTRICT
MANAGER.’
[4] It is common cause
that the appellant commenced teaching at the school on 22 August
2005. At this time, the appellant had not
received the written
permission of the District Manager to do so. According to the
respondents, the assumption of duties by the
appellant was subject to
the approval of the recommendation by the school. The respondents
contended further that at all material
times, the appellant was aware
that his appointment was subject to the approval of the third
respondent. The appellant has responded
to these averments with a
bare denial in the replying affidavit. He did not state his version.
[5] The third respondent
declined to approve the appointment of the appellant. On 26 August
2005, the school’s Headmaster
informed the appellant that the
third respondent had declined to approve his appointment to the
position of temporary educator.
The reason provided for the decline
was that the appellant was previously employed by the third
respondent and was dismissed. He
was declined appointment as a result
of being “
blacklisted
”. At the time, the appellant
was informed of the third respondent’s decision, he had worked
for a period of five days.
[6] The appellant was
aggrieved by this state of affairs and referred a dispute to the
first respondent. In the “
ELRG Referral Form E1
”
the appellant indicated that the dispute referred was ‘unfair
labour practice in terms of schedule 7(2)(1)(b) of the
LRA’. He
summarised the facts of the dispute as ‘
efusal to appoint
’
and referred to a letter dated 09 September 2005 that was written to
the Headmaster of the school by the appellant. The
relief sought by
the appellant in the referral form was
appointment and
Compensation and Delisting (Blacklisting)
’ sic.
[7] Conciliation was
unsuccessfully and the dispute was subsequently enrolled for
arbitration. At the arbitration, the third respondent
raised a
preliminary issue in respect of the first respondent’s
jurisdiction to arbitrate the dispute. It was contended that
no
employment relationship existed between the appellant and the third
respondent. The commissioner, who arbitrated the dispute,
requested
the parties to submit written heads of argument on the point
in
limine. T
he parties obliged. Neither party requested an
opportunity to testify nor tendered oral evidence. In fact, they
informed the commissioner
that they would not be calling witnesses
and that the matter should be determined on the papers filed and the
parties’ arguments.
[8] In his detailed heads
of argument, the appellant, contended
inter alia
, that an
employment relationship existed between him and the third respondent.
He submitted that as an applicant for employment
is deemed or
regarded as an employee within the contemplation of the Labour
Relations Act 66 of 1995 (“the Act”) and
that he taught
for six days at the school.
[9] The commissioner in
his ruling held that an “unfair labour practice” can only
occur between an employer and an employee
and as such there must be
an employment relationship in existence. He held further that on the
facts placed before him ‘it
is clear that there was never any
existence of an employer and employee relationship. The respondent
never appointed the applicant
as its employee. The commissioner
consequently ruled:
‘
(1) that the Education Labour
Relations Council has no jurisdiction to entertain this matter as
there is no issue of unfair labour
practice since the [appellant] was
never an employee of the respondent;
(2) the [appellant] can either
approach the CCMA or the Labour Court for alternative relief;
(3) there is no order as to costs.’
Proceedings in the
Labour Court
[10] The appellant was
aggrieved by the ruling of the commissioner and instituted review
proceedings in the Labour Court seeking
orders to the effect that the
award be set aside and the matter be referred back to the Bargaining
Council for arbitration
de novo
by a commissioner other than
the second respondent. The grounds upon which the award was attacked
were that the commissioner had
not applied his mind to the facts on
hand in that he failed to take into account that:
at all material times
the school management team was acting as an agent for the third
respondent in interviewing and employing
an educator for the
position as advertised by the third respondent;
b) there was a concrete
offer of employment in terms of the abovementioned advert;
c) the appellant accepted
the employment on the terms offered and signed the necessary
documentation to that effect;
d) the appellant
commenced employment in terms of the advertisement and offer of
employment;
e) he remained in
employment until he was forced by the second respondent to cease his
employment;
f) the commissioner was
to decide upon the nature of the dispute, being the fairness or
otherwise of the third respondent’s
refusal to appoint the
appellant. The reasons for the dispute, which does not constitute the
dispute, was incorrectly made an issue;
g) the
Employment of
Educators Act 76 of 1998
makes no provision for the blacklisting of
educators on the department’s “
persal-system
”.
The appellant contended
that the commissioner erred in finding that the Bargaining Council
had no jurisdiction to entertain this
dispute in that the award does
not show any rational connection between the decision reached and the
material which was properly
placed before him. The commissioner was
further accused of having committed an irregularity in executing his
duties under the LRA.
[11] Before the hearing
of the review application the appellant amended his papers, and added
the school as the fifth respondent
in the review application. The
Labour Court
inter alia
, made the following remarks and
findings:
11.1 the question whether
a person is an employee or not is a jurisdictional issue. The
commissioner acted correctly by dealing
with the jurisdiction issue
which had been raised before it;
11.2 the Labour Court had
to determine whether the decision reached by the commissioner is one
which a reasonable decision maker
could not reach given the material
before him at the time;
11.3 the appellant signed
the Notice of Appointment form which clearly stated that he should
not commence employment until he obtained
written permission from the
District Manager. The appellant was therefore fully aware that his
employment would be conditional
on the third respondent granting him
written permission to commence teaching. Since third respondent did
not grant appellant permission,
the
conditional employment terminated due to the non-fulfillment of the
condition and the appellant can therefore not be regarded
as an
employee;
11.4 the facts of this
case are distinguishable from the cases of
Wyeth
SA (Pty) Ltd v Manqele and Others
,
2
Discovery Health
Limited v CCMA and Others,
3
and Kylie v CCMA and
Others
,
4
in that in all the above
cases, the offer of employment was not conditional unlike in this
case.
The application for
review was consequently dismissed with costs.
The appeal
[12] The grounds of
appeal as contained in the notice of appeal upon which the appellant
is challenging the judgment of the Court
below may be summarised as
hereunder. The Labour Court erred:
12.1 in dismissing the
review application and failing to find that there was an employment
relationship between the appellant and
the third to fifth
respondents;
12.2 in disregarding the
dicta
laid down in the judgments referred to at paragraph 11.3
that an employment relationship is not solely dependent on the
construction
of a contract recognised as valid and enforceable in
terms of common law;
12.3 in finding that this
matter is distinguishable from the facts and circumstances in
Wyeth
SA v Manqele and Others
, (supra) and
Discovery Health
Ltd,
(
supra
) in that employment in these cases was not conditional;
12.4 in failing to
consider the appellant’s further grounds for review such as:
12.4.1 by permitting the
appellant to begin work the third to fifth respondents waived any
condition that may have been necessary
for the appellant to obtain
the district manager’s permission to commence rendering
services and/or stopping the third to
fifth respondents from raising
the suspensive condition;
12.4.2 in terms of
section 6(3)
of the
Employment Equity Act 76,
of
1998
,
prior
to its amendment in January 2006 as illustrated in
Head,
Western Cape Education Department and Others v Governing Body,
Point High School and
Others,
5
the Court held that the
Governing Body’s recommendation was almost invariably
implemented by the Head of Department, (i.e.
of
the Gauteng Department of Education in
casu
),
if such recommendation was made in good faith and without the
governing body being subjected to undue influence. The same principle
should apply to this case.
12.5 in failing to
consider or attach sufficient weight to the definition of an employee
as contemplated in section 213 of the Act
which
inter alia
includes the rendering of services on a basis other than that
recognised as employment by the common law.
[13] There is no doubt
that the commissioner acted correctly by investigating whether he had
jurisdiction to determine the parties’
dispute. It was
incumbent on the appellant to place the facts upon which he relied
for the contention that first respondent had
jurisdiction. Put
differently, the question was and still is whether objectively
speaking, the facts placed before the commissioner
established that
the commissioner had jurisdiction to entertain dispute. A finding by
the commissioner that the first respondent
does not have jurisdiction
when objectively speaking it had, would be incorrect. The question is
not whether the decision of the
commissioner is one that a reasonable
decision maker could not reach or whether the decision does not fall
within the band of the
decisions that a reasonable decision maker
could reach. It is either there is jurisdiction or there is no
jurisdiction.
6
[14] Having stated that,
the question that the Labour Court should have considered when
reviewing the commissioner’s award,
was whether the material
that was placed before the commissioner established that the
Bargaining Council had jurisdiction to entertain
the dispute. The
starting point is the nature of the dispute. The appellant’s
complaint was that the third respondent refused
to appoint him,
thereby committing an unfair labour practice. The following facts
play an important role in answering the question
that was before the
Labour Court. In the letter addressed to the Headmaster attached to
the referral form (ELRC Referral Form E1),
the
appellant stated that he was advised that the third respondent did
not approve his appointment or ‘make my appointment
as a
Teacher because I was dismissed as such blacklisted by the GDE’.
The appellant contended further that he made it clear
to the
Headmaster that he did not accept that the third respondent’s
decision was ‘fair and lawful’.
[15] Furthermore, the
appellant averred in the founding affidavit in support of the
application for review, that the commissioner
was to decide upon the
nature of the dispute, which was according to the appellant, being
the fairness or otherwise of the third
respondent’s refusal to
appoint him. In appellant’s own words, his complaint was not an
unfair dismissal dispute but
the refusal by the third respondent to
appoint him.
[16] In addition to the
above facts, the advertisement indicated in no uncertain terms that
the post advertised was for appointment
by the third respondent.
Further, the document that the appellant completed after the
interview, informed him that it was an application
for appointment
and that he could not assume duties before he received a written
permission of the District Manager of the third
respondent. It is
therefore in my view, not surprising, objectively speaking, that the
appellant did not regard himself having
been appointed to the
position of educator by the third respondent. Having been a teacher,
he was in a position to understand that
the appointment had to be
made by the third respondent. His assumption of duties without the
written permission of the third respondent
could not have made him an
employee of the third respondent. Furthermore, his rendering of
services to the school for five days
under these circumstances could
not make him an employee of the third respondent. This aspect
distinguishes this case from facts
and decisions in the
Discovery
Health Limited
v
CCMA
and
Others; and Kylie
v
CCMA
and Others
(
supra
), as well as the other cases referred to
on behalf of the appellant. It was neither the respondent’s
case, nor the commissioner’s
finding, that an employment
relationship is solely dependent on the construction of a contract
recognised as valid and enforceable
in terms of the common law.
[17] It is abundantly
clear from the record that most of the grounds of appeal raise issues
that neither served before the commissioner
nor the Labour Court.
These are the alternative arguments raised on behalf of the appellant
to the effect that the conduct of the
fifth respondent in allowing
the appellant to commence teaching constituted a waiver and the
respondents were as such estopped
from relying on the suspensive
condition as a defence. The simple answer is that there was no
contract; therefore there was no
suspensive condition.
[18] The appellant did
not plead or place before the second respondent facts to support the
contention that the fifth respondent
was authorised by the third
respondent to request, invite or even authorise appellant to commence
rendering services before the
third respondent had approved his
appointment. Neither did he place evidence to suggest that the fifth
respondent was entitled
to waive and if so entitled, consciously
waived the third respondent’s requirement to issue written
permission before the
appellant commenced rendering services. There
is also no evidence to support the contention that the third
respondent waived its
right to make the appointment to the advertised
post. The same can be said about the
section 6(3)
of the
Employment
of Educators Act, as
applicable in 2005. There was no case made out
to the second respondent or in the review application that the third
respondent
was obliged to comply with the recommendation of the fifth
respondent to appoint the appellant. This aspect can therefore not
now
be relied upon to review the award of the second respondent.
[19] It was contended on
behalf of the appellant that the commissioner should have referred
the matter to oral evidence for him
to be able to determine the true
nature of the dispute. I find no merit in this contention. The
commissioner cannot force the parties
to lead evidence when they
inform him that they were not going to lead oral evidence but rely
solely on the material placed before
him. To compel the parties to
present oral evidence would expose the commissioner to accusations of
misconduct, misdirection or
having exceeded his powers.
[20] On a prospectus of
the relevant facts as pleaded by the parties, I am satisfied that the
second respondent was correct in finding
that there was no employment
relationship between the appellant and the third respondent. The
fifth respondent, who allowed the
appellant to render services
without the permission of the third respondent, was only joined at
the review application stage and
no specific order was sought against
it. It is for this reason that the commissioner made no finding about
the liability or otherwise
of the fifth respondent. This Court cannot
at this stage pronounce itself on this issue as well.
[21] I am therefore not
persuaded that the Labour Court erred in dismissing the application
for review brought by the appellant.
The appeal should therefore
fail. It would be in accordance with the requirements of the law and
fairness that costs should follow
the result.
Order
The appeal is dismissed
with costs.
___________________
TLALETSI JA
Judge of the Labour
Appeal Court
Landman AJA and Ndlovu JA
concur in the judgment of Tlaletsi JA.
Appearances:
For the Appellant: Mr I.
I. Mahomed of Eversheds
For the Respondent:
Advocate MS Baloyi
Instructed by: State
Attorney, Johannesburg
1
The
judgment of the Labour Court is reported as:
Phera
v Education Labour Relations Council and Others
(2010)
31 ILJ 992 (LC).
2
(2005)
26 ILJ 749 (LAC).
3
[2008] ZALC 24
;
[2008]
7 BLLR 633
(LC).
4
[2008] ZALC 86
;
[2008]
9 BLLR 870
(LC).
5
2008
(5) SA 18
(SCA) at para 4.
6
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others, SA Rugby (Pty) Ltd v SARPU and Another
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at paras 39 - 40.