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[2013] ZALAC 17
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De Beer v The Minister of Safety & Security Services/ Police and Another (PA 1/12) [2013] ZALAC 17; [2013] 10 BLLR 953 (LAC); (2013) 34 ILJ 3083 (LAC) (9 July 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT, PORT ELIZABETH
Reportable
Case no: PA 1/12
In the matter between:
MATTHEUS ANDRIES DE BEER
......................................................................
Appellant
and
THE MINISTER OF SAFETY AND SECURITY/
POLICE
.................................................................................................
First
Respondent
PROVINCIAL COMMISSIONER EASTERN CAPE
M S LANDU
......................................................................................
Second
Respondent
Heard: 5 March 2013
Delivered: 9 July 2013
Summary: Hearing on appeal: Notice to cross appeal issue of
jurisdiction not filed. Exceptional circumstances present--
sufficient
cause shown to nevertheless deal with the issue of
jurisdiction-- also in the interest of justice to do so.
Urgency and interim reinstatement: Not a proper case for
consideration of grant of remedy of interim reinstatement in absence
of
referral to conciliation and arbitration---urgency
self-created--no acceptable explanation for not instituting
proceedings in the
relevant forum(s)--relief sought in substance
order for final reinstatement—attempt to leapfrog
jurisdictional hurdles---Labour
Court has no jurisdiction to grant
such relief in absence of referral(s) contemplated in
s191
of the
Labour Relations Act No. 66 of 1995
.
Duty to advise litigant of appropriate forum: appellant legally
represented throughout- no duty in circumstances on respondents to
advise the appellant on the appropriate forum to institute
proceedings---appellant, in any event, disputing respondent’s
view regarding the appropriate forum.
Costs: given circumstances costs should follow the result.
Relief: striking out by court of first instance cannot be
faulted—if that court had jurisdiction should have found
application
was for final relief—application could have been
dismissed for failing to make out a case for the relief.
Appeal dismissed with costs.
Coram: Waglay JP, Tlaletsi ADJP and Coppin AJA
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
COPPIN AJA
[1] This is an appeal against an order of Lallie J in the Labour
Court, dismissing, with costs, a ‘semi-urgent’
application
brought by the appellant against the respondents for the
following relief:
‘
1.
That the requirements of the rules, relating to forms, service and
time limits be dispensed with and [allowing] the application
to be
brought forthwith as a matter of semi-urgency.
2. That a rule nisi do hereby
issue calling upon the respondents to show cause, if any, to the
court on____ 2011 at 9h30 or so soon
thereafter as counsel for the
applicant may be heard, why an order in the following terms should
not be granted:
2.1. That the applicant be
reinstated forthwith in his full salary, benefits and emoluments with
interest at the legal rate backdated
as and from 1 December 2009,
pending finalisation of the applicant’s application for
reinstatement and for medical boarding.
2.2. That the applicant’s
termination of service of 30 September 2010 be set aside and the
applicant be reinstated in his
employment with salary, full benefits
and emoluments with interest at the legal rate up to the date of this
order, pending the
finalisation of the applicant’s application
for ill-health retirement/medical boarding.
2.3. That the applicant be
allowed to apply for ill-health retirement/medical boarding.
2.4. That the respondents pay
the costs of the application, jointly and severally.
3. That paragraph 2.1 above
operates as an interim order pending the final determination of the
application.
4.
That the applicant be allowed to supplement his papers.
5.
That further and/or alternative relief be granted to the applicant.’
1
[2] Having held that the Labour Court had jurisdiction and that the
matter was urgent, the court
a quo
, nevertheless, found that
the appellant did not make out a case for the grant of interim relief
and consequently dismissed the
application with costs. On the
application of the respondents, the court
a quo
had also
struck out certain matter from the replying affidavit filed by the
appellant on the basis that it was new matter that
ought to have been
contained in the appellant’s founding affidavit. In brief, it
is contended in this Court, on behalf of
the appellant that the court
a quo
erred in striking the matter from his replying
affidavit, because he was entitled to raise this matter in response
to averments
in the respondents’ answering affidavit. Regarding
the merits, it is submitted that the appellant made out a case for
the
relief he sought and specific findings of the court
a quo,
to the contrary, were challenged.
[3] The respondents, on the other hand,
inter alia
, support
the dismissal of the appellant’s application and the ruling on
the striking-out, but contend that the court
a quo
erred in
finding that the matter was urgent and that the Labour Court had
jurisdiction to hear it. However, the respondents did
not file a
notice of their intention to cross-appeal, but submitted that the
issue of jurisdiction ought, nevertheless, to be dealt
with by this
Court. Counsel for the respective parties were in agreement that this
Court may consider the jurisdiction issue despite
the absence of a
formal notice to cross-appeal.
[4] I shall now first relate the background facts, then deal with the
issue of jurisdiction and then, briefly, with the merits,
including
the striking out, and, lastly, with the issue of costs.
Background facts
[5] The appellant deposed to the main affidavit in support of the
relief he claimed as well as to the replying affidavit. He also
relied on confirmatory affidavits of an attorney, D. Gouws, a
psychologist, J.H. Minnaar, and a psychiatrist, Dr. I. Taylor. The
respondents’ opposing affidavit was deposed to by Brigadier A.
C. Greyling (‘Greyling’).
[6] The appellant was employed as an Inspector in the South African
Police Service (‘SAPS’) until the respondents terminated
his services. (The respondents aver that they terminated his services
on 8 July 2010, the appellant avers that this occurred on
30
September 2010). The reason given was that he was absent from work
without leave for a protracted period. It was not disputed
that the
appellant was absent from work from about 23 April 2009 until his
services were terminated by the respondents. It was
averred by the
respondents that the appellant was absent without leave from 23 April
2009 until 28 July 2009 and from 1 September
2009 until 31 December
2009 and then from 23 February 2010 until 30 April 2010 and then for
a further period until the respondents
terminated his services as
aforesaid.
[7] It was also not disputed that by a letter dated 22 July 2009,
which was served on the appellant on 24 July 2009 by his supervisor,
Colonel Booysen (“Booysen”), the chairperson of the
Cluster Absenteeism Management Committee, Greyling,
inter alia
,
instructed the appellant ‘to physically resume duty’
within two days of receipt of the letter failing which the South
African Police Service (“SAPS”) would suspend the payment
of his salary. The appellant was further invited to make
representations within a stated period to show why his absence was
not to be treated as leave without pay. The appellant did not
reply
directly to the writer of the letter, but approached Booysen and
requested vocational leave for one month. Booysen informed
Greyling
of this. According to the appellant, on 27 July 2009, he applied
formally for long-term incapacity leave on the official
form and the
psychiatrist who was treating him, Dr Taylor, had completed the
medical part of the form and the appellant had given
this form to
Booysen’s office.
[8] It is not disputed that the appellant was indeed granted
vocational leave for a month and that he did not return to work after
that month. It was not in issue that Greyling, by letter dated 17
September 2009, which was served on the appellant by Booysen
on 23
September 2009,
inter alia
, again informed the appellant that
he had been absent from work without approved leave for an
unreasonably long period of time
and instructed the appellant to
physically report for duty within two days of receipt of the letter
failing which the SAPS would
suspend his salary. The appellant was
again invited to make representations why his absence should not be
treated as leave without
pay failing which his salary would be
suspended. Despite this the appellant again failed to report for
duty. No evidence was produced
of any representations that the
appellant made in response to the invitation. At the end of November
2009, the appellant’s
salary, which he had been receiving until
then, was suspended. The appellant continued to be absent from work
notwithstanding.
There is no evidence that the appellant took any
urgent action to have his salary reinstated.
[9] The second respondent, seemingly, caused a notice, headed ‘Notice
of Intended Termination of Employment Contract’
and dated 25
May 2010, to be served on the appellant. It appears from the notice
that it was served on the appellant by Booysen
on 1 June 2010. In the
notice, the appellant is, amongst other things, reminded of his work
obligations and told that his absence
constitutes a breach of
contract which could result in the termination of his employment. In
the notice he was given the details
of how his absence had depleted
his allocated sick leave. It is stated in the notice that the
appellant’s absence, at that
stage, exceeded 150 working days.
The appellant is also,
inter alia,
requested to forthwith
provide the office of the second respondent with reasons why his
employment contract was not to be regarded
as terminated. In terms of
the notice, the appellant’s response was to be submitted
through Booysen within a stated period.
The appellant was further
informed that upon receipt of those representations the SAPS would
consider ‘whether there are
any reasons’ to retain the
appellant in its employment. Further, that the failure to submit the
representations ‘will
be regarded as consent to the
termination’ of the appellant’s employment contract with
SAPS. Attached to the notice
was a schedule indicating the
appellant’s periods of absence (excluding vacation and family
responsibility leave). It is
not disputed by the appellant that at
the time he had been absent from work without leave for a period of
about 201 days.
[10] The appellant’s
attorneys, Gouws Attorneys, made written representations by letter
dated 8 June 2010 addressed to Booysen.
In the letter they,
inter
alia
, point out that
the termination of the appellant’s employment contract would be
‘vehemently opposed’. They state
that due to time
constraints they were only able to summarise the essential parts of
the appellant’s case, but would provide
more detailed
representations, supported by ‘source documents’, within
a few days. Having pointed out that the appellant
had been a loyal
servant of the SAPS since his appointment on 15 December 1980 they go
on to relate the reasons why the appellant
‘of late’ had
been unable to fulfil his work obligations.
[11] In the representations, the
attorneys relate, in essence, that the appellant was diagnosed as
suffering from a post-traumatic
stress disorder (‘
PTSD
’)
which, according to them, constituted an ‘injury on duty’
(‘
IOD
’).
They state that the appellant was, consequently, booked off sick by
his treating psychiatrist Dr Taylor, since 17 March
2009 to the date
of the representations. Copies of the medical certificates are
annexed to the letter and the attorneys state that
the certificates
had been previously provided to the SAPS by the appellant and that
the SAPS were ‘well aware of them’.
It is pointed out
that the SAPS had not disputed that the appellant suffers from
PTSD/IOD and the letter then goes on to refer
specifically to a
passage in another letter, dated 16 October 2009, from Booysen to the
appellant’s attorneys, stating,
inter
alia
: ‘It is
furthermore evidenced that your client is not in a position to return
to work due to [the] post-traumatic stress
disorder he [is] suffering
[from], therefore a recommendation with regard to his fitness to be a
policeman will be forwarded in
due course to head office.’
2
Gouws Attorneys, in their letter of representations, also refer to a
letter, written by Greyling to them, dated 3 November 2009,
in
respect of the appellant’s absenteeism and his remuneration and
in which Greyling makes the following statement: ‘We
are not
advising you or your client to return to work despite the advice of
his psychiatrist. However we have no responsibility
to remunerate
Inspector De Beer during the period of his absence without leave.’
Gouws Attorneys, further, in support of
their submission that the
SAPS knew of the appellant’s health condition, refer to a
letter of the SAPS approving an application
made by the appellant on
23 March 2010 for twelve psychiatric sessions.
3
[12] The representations made by the appellant’s attorneys
further,
inter alia,
stated that the appellant had previously
applied for short-term and long-term incapacity leave, but has had no
response from the
SAPS regarding those applications and that at the
time of the representations (i.e. 8 June 2010) the appellant was
preparing an
application for ill-health retirement which was to be
presented in due course. The appellant’s attorneys go on to
dispute
the second respondent’s interpretation of Resolution 7
of 2000 as prescribing ‘no work no pay’ and they
contended
that in terms of paragraph 7.6(a) of the Resolution,
employees who suffer from occupational injuries, or who contract
occupational
diseases, as a result of their work, are to be granted
occupational injury and disease leave for the duration of the period
that
they cannot work. They contend further that paragraph 4(6) of
National Instruction 2/2004 provides that such a person is entitled
to leave with full pay from the time he is unable to work until he is
able to resume work, or until he is discharged from service
after an
enquiry, of the kind contemplated in the applicable statute, has been
held.
[13] In their representations,
Gouws Attorneys referred to the decisions in
Mooi
v SAPS
4
and
Urquhart v
Compensation Commissioner.
5
They also referred to the fact that the appellant’s salary was
suspended in November 2009 and demanded that the appellant
be
reinstated ‘fully in his salary, with all benefits, etc., as
from 1 December 2009’ and threatened that unless that
was done
the appellant would take the necessary steps. Curiously, in their
letter the attorneys also enquire whether Booysen had
authority to
reinstate the appellant ‘in his salary’ and asked which
forum they should approach for such relief if
he (i.e. Booysen) did
not have such authority. They further enquire from Booysen whether
the Public Service Bargaining Council
(‘PSBC’) was not
the correct forum. In conclusion, the attorneys dispute the SAPS’s
entitlement to terminate
the appellant’s contract of employment
given the circumstances. A lengthy affidavit by the appellant is also
attached to
their letter in which the appellant relates the
cause/probable work causes for his health condition and his
treatment.
[14] According to the appellant, his application for ill-health
retirement had been completed by 9 June 2010 and was presented
to
Booysen’s office. He states that the application had been
completed by him, Booysen, Dr Taylor and Mr Minnaar (a psychologist).
It appears from a copy of the application, that was annexed, that it
was signed by the appellant and Booysen on 9 June 2010, by
Dr Taylor
on 2 June 2010 and by Mr Minnaar on 22 April 2010. The respondents
deny the application was submitted on 9 June 2010
and state that it
was submitted for the first time by the appellant’s attorneys
in September 2010 together with a second
set of representations which
they made regarding the termination of the appellant’s
employment.
[15] On 8 July 2010, a written notice of termination of the
appellant’s employment contract was served on him. It emanated
from the office of the second respondent. It informed the appellant
that that office had an opportunity to study his representations,
but
was of the opinion that ‘no compelling reasons were raised as
to why’ the appellant’s services should be
retained. The
appellant was further informed as follows: ‘Your continuous
unauthorised absence is unacceptable and is regarded
as unreasonable
and subsequently your services are terminated with immediate effect.’
[16] The appellant’s attorneys made written representations to
the second respondent concerning the termination of the appellant’s
services by letter dated 6 September 2010. The letter states that the
representations made therein are more detailed and in addition
to the
earlier representations that were made. The attorneys also request
the second respondent to study their representations
carefully and to
reconsider his decision. In the letter they state,
inter alia
,
that the appellant has made out a compelling case for medical
boarding and that the medical evidence put up in support of it stands
uncontested. The attorneys of the appellant go on to say,
inter
alia
: ‘On the probabilities we therefore have little doubt
that a court will find that our client should be medically boarded.
Our client gave his life to SAPS.’ They state further: ‘[W]e
therefore request you to reinstate our client forthwith
in his salary
with full benefits and emoluments and to allow him to apply for
medical boarding.’ And further: ‘[A]s
you can imagine our
client and family is suffering financially as a result of the
termination of his contract. He also requires
ongoing medication.’
[17] In the representations of 6 September 2010, Gouws Attorneys go
on to demand a response from the second respondent within 10
days of
the receipt of the representations, failing which, according to them,
the appellant would have no option but to approach
the appropriate
forum for the necessary relief. However, in the letter the
appellant’s attorneys request the second respondent
to advise
them on the forum that they would have to approach should he refuse
to reinstate the appellant ‘in his salary’.
Attached to
the letter of his attorneys is an affidavit by the appellant in which
he relates his work history and, in particular,
his exposure to
traumatic incidents, or situations in the course of his work. To this
affidavit of the appellant have been annexed
various documents,
including an application for long-term incapacity/ill-health
retirement dated 9 June 2010, and
Part 3
of a form completed by Dr
Taylor dated 2 June 2010, a report by Mr Minnaar dated 22 April 2010;
and various medical reports by
different medical
practitioners/specialists.
[18] The second respondent reacted to the appellant’s
attorneys’ additional representations by letter dated 30
September
2010. In his letter, the second respondent states that even
though the appellant had had ample opportunity to do so he only
signed
his application for ill-health retirement on 9 June 2010, a
day after he had been served with a notice informing him of the
intended
termination of his employment. The second respondent further
intimates that the additional representations had been studied
carefully,
and states that they, unfortunately, constitute an attempt
at an application for ill-health retirement which was regarded, at
that
stage, as being ‘inappropriate’ and ‘long
overdue’. The second respondent further expresses the view that
the appellant’s attorney’s last letter ‘does not
present reasons why’ the appellant’s services should
have
been retained. With regard to the issue of jurisdiction, the second
respondent states as follows: ‘Your concern regarding
jurisdiction is noted. However, it is suggested that should you be
unsure as to which forum to approach, you will be best served
by
obtaining counsel’s opinion in this regard.’
[19] It is against this background that the appellant brought an
application seeking the relief mentioned in paragraph [1] of this
judgment. It is common cause that the appellant did not refer any
dispute in connection with any of the issues raised to, either
the
CCMA, or any bargaining council.
Jurisdiction
[20] At the hearing in the court
a quo
the
respondents challenged the jurisdiction of the Labour Court. They
argued that the matter concerns an unfair dismissal and that
in terms
of
s191(1)(a)
of the
Labour Relations Act
6
(‘the
Act’) the Safety and Security Sectoral Bargaining Council
(‘SSSBC’) had the necessary jurisdiction.
The court
a
quo
rejected the
argument and held that while the SSSBC did have jurisdiction over
dismissal disputes and was empowered to grant relief
in respect of
such disputes, the appellant was not seeking an order of
reinstatement on the grounds that he was dismissed unfairly,
but
sought ‘to be reinstated in his full salary, benefits and
emoluments with interest at the legal rate backdated from 1
December
2009, pending the finalisation of his application for reinstatement
and for ill-health retirement’ and that the
appellant was
therefore intending to challenge his alleged unfair dismissal in
future proceedings. The court
a
quo
also held that it
was empowered in terms of
s158(1)(a)
of the Act to grant any
appropriate relief, including urgent interim relief and since this
matter was urgent it had jurisdiction.
In respect of the claims for
remuneration, the court
a
quo
held that disputes
about the payment of remuneration were governed by the Basic
Conditions of Employment Act
7
(‘the BCEA’) and that the Labour Court had exclusive
jurisdiction to determine disputes governed by the BCEA. The
respondents contend that the court
a
quo
erred in finding
that it had jurisdiction and by dismissing their challenge. Regarding
the claim for the salary, it is submitted
that the dispute is really
about the interpretation of Resolution 7 of 2000, a collective
agreement, and that the dispute regarding
its meaning had to be
referred to the PSCBC in accordance with the dispute resolution
procedure of that body and as contemplated
in s24 of the Act.
[21] In terms of Rule 5 of the rules of this Court any respondent who
wishes to cross-appeal must deliver a notice of cross-appeal
(Rule
5(4)) and the notice must be delivered within 10 days, or such longer
period as may, on good cause, be allowed, after receiving
a notice of
appeal from the appellant (Rule 5(5)). The notice must state the
particulars in respect of which the variation of the
judgment, or
order, of the Labour Court is sought (Rule 5(6)). The respondents
have not delivered the required notice. They have
submitted that it
was not necessary to file a notice of cross- appeal on the
jurisdiction issue. The appellant did not submit the
contrary, and
adopted the attitude at the hearing of the appeal that the issue of
jurisdiction could be dealt with by this Court
in the absence of a
formal notice of appeal. This Court is empowered in terms of Rule
12(1) to excuse the parties from compliance
with any of the rules if
sufficient cause is shown.
[22] Even though it is a well
established principle in the practice of superior courts that,
generally, an order or judgment cannot
be interfered with to the
prejudice of an appellant in the absence of the necessary
cross-appeal by the respondent
8
there are exceptional circumstances where an order or judgment may
nevertheless be interfered with in the absence of the necessary
cross-appeal where it is in the interests of justice.
9
The issue of jurisdiction is crucial, because it is directly linked
to the validity and status of the order made by the court
a
quo
and uncertainty on
those aspects might negatively impact on the effectiveness of the
order.
10
In my view, in light of those factors and taking into account the
following facts and circumstances, sufficient cause has been
shown to
consider the issue of jurisdiction in the circumstances and it is,
certainly, in the interests of justice to do so:- namely,
the fact
that it is not necessary to obtain leave to cross-appeal in respect
of proceedings in the Labour Court,
11
as well as the fact that the absence of a notice to cross-appeal has
not been objected to by the appellant and has not caused any
prejudice since the issue was pertinently raised and dealt with in
the respondents’ heads of argument which had been filed
well in
advance of the hearing of the appeal, the fact that we are dealing
with a crisp, fundamental, legal issue, namely, jurisdiction
and,
significantly, that the court
a
quo
erred in
dismissing the respondents’ point that the Labour Court lacked
jurisdiction.
12
[23] In terms of s158(1)(a)(i) of
the Act, the Labour Court is empowered to,
inter
alia,
grant a litigant
appropriate urgent interim relief. On the other hand, the Labour
Court is not empowered, for example, to adjudicate
a dispute about
the fairness of a dismissal in circumstances where the dispute was
not first referred to the CCMA, or the relevant
council, as the case
may be, for conciliation within the prescribed period. Section 191(1)
of the Act requires that such a dispute
be first referred to
conciliation. It is only after the council or the Commissioner had
certified that the dispute remains unresolved,
or a period of 30 days
has expired since the council or the CCMA received the referral and
the dispute remains unresolved that
the council, or the CCMA, must
arbitrate the dispute (section 191(5)(a)), or the employee may refer
the dispute to the Labour Court
for adjudication (section 191(5)(b)).
It is thus clear from section 191(5) that the referral of a dismissal
dispute to conciliation
is a pre-condition before such a dispute can
be arbitrated, or referred to the Labour Court for adjudication. In
the absence of
a referral to conciliation, or if it was referred, but
there is no certificate issued as contemplated in section 191(5) and
the
30 day period has not expired, the Labour Court has no
jurisdiction to adjudicate the dismissal dispute.
13
[24] The Appellant averred in his
replying affidavit,
inter
alia
, that ‘[t]here
can be no dispute that this Court can order my temporary
reinstatement’. This averment is unjustifiably
optimistic and
is not supported by the facts of his case. Regarding the remedy of
interim reinstatement, in several matters in
the Labour court it was
considered whether such a remedy could be granted in unfair dismissal
cases, where the dismissal dispute
had not yet been referred for
conciliation and by virtue of the court’s powers in terms of
s158(1)(a)(i) of the Act. In
SACCAWU
v Shoprite Checkers (Pty) Ltd,
14
Landman J assumed that the Labour Court had the necessary
jurisdiction to grant such relief, but did not grant it. The same
judge
left the question open in
Rammekwa
v Bophutatswana Broadcasting Corporation and another
.
15
In
Fordham v OK Bazaars
(1929) Ltd,
16
Revelas J held that such an order was tantamount to the
status
quo
relief that could
have been granted under the previous
Labour Relations Act, but
because the power to grant such relief had been deliberately excluded
from the Act, the Labour Court did not have the power to
grant
interim reinstatement in the case of unfair dismissal before the
dispute had been referred for conciliation. In
University
of the Western Cape Academic Staff Union and others v University of
the Western Cape,
17
Mlambo J expressed the view that the Labour Court could by virtue of
its powers in terms of
s158(1)
of the Act grant relief similar to the
status quo orders that were granted under the previous legislative
regime and that Labour
Court could grant the same kind of relief that
could be granted by a High Court, because it was of equal status with
the High Court.
In the view of Mlambo J, ‘the Labour Court
would be failing in its stated task if it were to deny such relief
even in circumstances
where the unfairness sought to be prevented is
very glaring’. According to Mlambo J ‘[e]xperience has
taught us that
even in this day and age one still encounters high
handed and unilateral conduct that ignored relevant provisions and
any semblance
of fairness. In certain circumstances the detrimental
consequences of such conduct cannot be addressed by an award after
arbitration
and adjudication has taken place’.
18
Nevertheless, in that matter the court did not order interim
reinstatement.
[25] In
SACWU
and others v Sentrachem,
19
where the applicants sought an urgent interdict compelling the
respondent to reinstate the dismissed employees pending the
completion
of retrenchment consultations as required by the Act,
Revelas J held that there was no difference in the views expressed by
her
in
Fordham
and those expressed by Mlambo J in the
University
of the Western Cape
case. The judge was of the view that the judgment in
Fordham
‘does not have the result that interim relief can never be
granted by the Labour Court, but emphasises the reluctance of
the
Labour Court to grant
status
quo
relief in
dismissal matters, in other words, reinstatement of dismissed
employees when there are alternative remedies available.’
20
The court there also did not grant the relief sought. In
Hultzer
v Standard Bank of South Africa (Pty) Ltd,
21
the applicant contended that he was dismissed and sought an order
restraining the respondent from carrying out the dismissal and
compelling the respondent to restore his conditions of employment
pending the resolution of a dispute which he had referred to
the
CCMA. Revelas J stated that ‘the Act does not make provision
for the kind of
status
quo
relief as was
found in section 43 of the Labour Relations Act 28 of 1956 (the
former LRA). However, the Labour Court has very wide
powers to grant
urgent interim relief in terms of section 158(1)(a)(i) of the Act.
The Labour Court is therefore empowered to grant
relief tantamount to
urgent reinstatement on an urgent basis. The court will, however,
only grant such relief, where an applicant
is able to persuade the
court that extremely cogent grounds for urgency exist.’
22
The
relief sought was not granted.
[26] In
NUM
v Elandsfontein Colliery (Pty) Ltd,
23
in deciding an application for leave to appeal against a judgment in
terms of which it was held that the issue(s) raised was
res
judicata
as it had
been decided by the court in an earlier application for interim
relief, Grogan AJ had to,
inter
alia
, consider whether
there was a reasonable prospect of another court coming to the
conclusion that the earlier judgment was null
and void, because that
court had no jurisdiction to hear the matter concerning their
dismissals in terms of s158(1), as the employees
had already been
dismissed by the time of the hearing. Having referred to the
decisions in
Shoprite
Checkers,
Fordham,
University of the Western Cape, Sentrachem
and
Paledi and another v
Botswana Broadcasting Corporation,
24
Grogan AJ noted that the weight of authority favoured the view that
the Labour Court can, by virtue of its powers in s158(1), in
appropriate circumstances, grant urgent relief to a dismissed
employee in the form of an order of interim reinstatement, pending
the conciliation, adjudication or arbitration of the dispute in terms
of s191 of the Act. After a careful analysis, Grogan AJ concluded
that s191 did not preclude the court from granting such relief
pending the resolution of the dismissal dispute in the ordinary
manner, nor were the powers conferred by s158, limited by s157,
which, according to Grogan AJ, was the provision that determined
the
court’s jurisdiction. It was concluded that, therefore, there
was no reasonable prospect of another court coming to a
different
conclusion and the application for leave to appeal was dismissed.
[27] We were not referred to and
I am not aware of any case under the Act in which interim
reinstatement was granted as a remedy
in an unfair dismissal case
before the dispute regarding the same had been referred to
conciliation. Without deciding the issue,
it is apparent from the
decisions referred to above that even where the courts were of the
view that such a remedy was feasible,
they would not readily grant it
and were, generally, of the view that such relief should be confined
to the kind of case that Mlambo
J referred to in the
University
of the Western Cape
case,
namely a matter which is truly urgent and in which the substantive
unfairness of the dismissal is glaringly obvious. In my
view, even
then, because of the nature of reinstatement, it shall not be readily
possible to grant, ‘interim reinstatement’
without
deciding crucial issues pertaining to the dismissal and
reinstatement, finally, albeit indirectly. What is apparent from
the
cases referred to is that, within the context of deciding whether the
court could grant ‘interim reinstatement’,
the true
nature of the remedy of reinstatement was not expressly considered,
or commented upon and, in particular, there appears
to have been no
consideration whether, reinstatement, due to its inherent nature, can
be made interim. It is significant that in
terms of s193(1) of the
Act it is only if and when the Labour Court, or the arbitrator
appointed in terms of the Act, finds that
a dismissal is unfair, that
reinstatement may be ordered. Reinstatement ordinarily means that the
period between the dismissal
and the resumption of service is
regarded as never having been broken. In
Kroukam
v SA Airlink (Pty) Ltd,
25
Davis JA explained the nature of this remedy as follows: ‘If an
order of reinstatement is made, then the contract is restored
and any
amount due would necessarily be part of the employee’s
entitlement.’(Amounts due would include back pay). Again
without deciding the issue, in my view there is a finality inherent
in the remedy of reinstatement that would make it difficult
to adapt
or refashion that remedy to serve as true interim relief.
Furthermore, in light of subsequent decisions, such as,
inter
alia
, the majority
decision in the
Driveline
case,
26
particularly on the meaning of s157(4) of the Act, and the decision
in
Booysen v Minister
of Safety and Security and others
27
on the issue of the Labour Court’s jurisdiction, the question
of the court’s power to grant interim reinstatement at
all will
have to be considered again in an appropriate case.
[28] However, the present case is
not truly about whether the Labour Court may grant an order for
interim reinstatement in terms
of its powers under s158(1) of the
Act. Even if it assumed for present purposes that the court has such
power, this is not a case
in which interim relief was truly being
sought. But one in which the dispute is about the fairness of the
appellant’s dismissal
and the fairness of the suspension of the
appellant’s salary was raised as a pertinent issue, and in
which, effectively,
final reinstatement was sought by
‘leap-frogging’
28
or ‘by-passing’ the procedural requirements of s191 and
s24, respectively, of the Act,
inter
alia
, under the
(rather thin guise) that the appellant did not know which forum to
approach for relief, and alleged ‘semi- urgency’.
[29] In my view, it was correctly
noted in
Maropane v
Gilbeys Distillers and Vintners (Pty) Ltd and another,
29
that if the Labour Court has jurisdiction to hear and determine a
matter it would have the power to grant an appropriate remedy,
but
the mere fact that the Labour Court does have the power to grant a
remedy does not mean that it has jurisdiction to hear and
determine
the issue between the parties.
30
It is clear that the Labour Court does not have jurisdiction to
adjudicate a dispute about an unfair dismissal or unfair labour
practice, unless the dispute has been referred to conciliation and
the reason for the dismissal is one of those listed in s 191(5)(b)
of
the Act. In terms of s157(5) the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if the Act requires
that the dispute be resolved through arbitration, save as provided
under s158(2). In terms of s193 if the Labour Court finds that
a
dismissal is unfair it may grant,
inter
alia
, an order of
reinstatement. Even though in terms of s77 of the BCEA and subject to
the Constitution and the jurisdiction of this
Court, the Labour Court
has exclusive jurisdiction in respect of all matters in terms of the
BCEA, with the powers described in
s77A of the BCEA, it has no
jurisdiction to resolve a dispute about the interpretation and
application of a collective agreement
contemplated in s24 of the Act.
Section 24(1) provides that such disputes must be resolved in terms
of the procedure provided in
that agreement for the resolution of
such disputes. That section also prescribes that the procedure must
first require the parties
to resolve the dispute through
conciliation, and if the dispute remains unresolved, to resolve it
through arbitration. Interestingly,
despite sections 77 and 77A of
the BCEA, s74(2) of that Act provides that if an employee institutes
proceedings for unfair dismissal,
the Labour Court, or the
arbitrator, hearing the matter, may also determine any claim for an
amount that is owing to that employee
in terms of the BCEA, provided,
inter alia
,
that the claim is referred in compliance with s191 of the Act.
[30] Jurisdiction has been
defined, generally, as the power of a court to hear and determine an
issue between parties.
31
Jurisdiction is determined on the basis of the pleadings. In the
event of the court’s jurisdiction being challenged at the
outset (
in limine
)
the applicant’s pleadings are a determining factor.
32
.
The pleadings must be properly interpreted to establish whether the
court has the power to hear and determine the real dispute.
It is a
trite principle that in application proceedings the affidavits
constitute the pleadings and the evidence, and that an applicant
must
make out a case in its founding papers, which includes establishing
that the court, in which the proceedings are brought,
has
jurisdiction to hear and determine the (true) issue(s). The notice of
application, or notice of motion, in which the relief
claimed is set
out, is part and parcel of the founding papers (i.e the pleadings).
From an analysis of the appellant’s notice
of motion and
affidavits, it is apparent, given the nature of the issues raised by
the appellant in its application that the Labour
Court did not have
the power, or jurisdiction, in the circumstances, to determine those
and to grant the relief sought.
[31] If the application had been brought in the ordinary course and
if the relief was not tied to urgency and worded as if it was
interim
relief, the court’s lack of jurisdiction would have been
obvious. The appellant appears to have attempted to overcome
the
jurisdictional difficulties by bringing the application on ‘a
semi-urgent basis’, by wording the relief sought
as if it were
some kind of ‘urgent interim relief’ and by requesting
reinstatement ‘pending’ one or the
other event, or
occurrence.
[32] The Act does not refer to
‘semi-urgent interim relief’. Section 158(1)(a)(i) refers
to ‘urgent interim relief’.
A matter is either urgent or
it is not. In my view, the matter was not urgent as contemplated in
the Act, or the rules of the Labour
Court. The grounds for
‘semi-urgency’ which were primarily relied upon by the
appellant, was that he was not receiving
a salary and had no other
source of income, his savings were almost exhausted and that he had
ongoing financial commitments that
he could not, or had difficulty in
honouring. The loss of salary and benefits, with the concomitant
financial hardship, are not
regarded as sufficient to establish
urgency.
33
In any case, any urgency that may have existed appears to have been
self-created, either by the appellant or his legal representatives,
by unreasonable delays and a failure to institute proceedings in the
appropriate forum in time, or at all.
[33] Furthermore, interim relief
must just be that. It must be interim not only in form, but in
substance. It is an established
principle that the court must not
only look at the form of an order, but also its effect.
34
It is apparent from the notice of motion that the reinstatement,
which the appellant sought by implication, was in fact final relief.
The rule
nisi
was irrelevant because the application was served on the respondents
and the matter was opposed before the rule
nisi
could be considered. Assuming the court was amenable to granting
interim relief it would in all likelihood not have issued a rule
nisi
because the respondent was already before it. The reinstatement
sought in paragraph 2 of the notice of motion was, in effect, for
a
final order of reinstatement.
[34] In paragraph 2.1 of the application in the court
a quo,
an order of reinstatement is sought ‘pending finalisation of
the applicant’s application for reinstatement and for
medical
boarding’. No mention is made in the application of the
appellant having initiated any other proceedings, in any
other forum,
or at all, concerning his dismissal, or any aspect of his employment
situation. In any event, by the time this ‘semi-urgent
application’ was considered in March 2011, many months had
already passed since the appellant’s employment had been
terminated. His employment was terminated on 8 July 2010. His salary
had been stopped, as long ago as the end of November 2009.
The time
period for bringing proceedings in the CCMA or the PSCBC, or any
other relevant bargaining council, had, by then, long
expired. There
is no rational and reasonable explanation why proceedings had not
been instituted in those forums. Moreover, the
reinstatement is
sought pending the finalisation of a second reinstatement application
that had not been instituted and in respect
of which no rational
information is given by the appellant. He had not even instituted any
proceedings for a final order for the
payment of his salary, which,
at the time of the hearing in the court
a quo
, had been
suspended more than a year ago. More concerning is the fact that the
order was sought not only, pending, a non-existent,
second
reinstatement application, but, in addition, pending the appellant’s
application for medical boarding. The order sought
was to endure
until the finalisation of both those processes. In my view, the
relief in paragraph 2.1 of the application cannot
be construed as
true and appropriate interim relief. Inherently it contains all the
hallmarks of finality.
[35] In paragraph 2.2, which was not expressed to be in the
alternative to the relief sought in paragraph 2.1, the appellant
effectively
sought reinstatement pending finalisation of his
application for ill-health retirement/medical boarding. Nothing is
stated either
in the notice of motion or in the application that
indicates that the reinstatement which he sought would indeed be
interim. A
final decision would first have to be taken on the
applications for ill-health retirement and medical boarding and the
issue of
reinstatement did not have to be revisited again. If the
applications for retirement and, or medical boarding were to be
successful,
that would be the end of the matter. The issue of
reinstatement would become totally irrelevant. Nothing, for example,
is said
by the appellant about the position if his applications for
medical boarding or ill-health retirement were to be unsuccessful.
The relief the appellant sought was nothing but final relief and
required the court to adjudicate on the fairness of the termination
of his employment with SAPS. It was not appropriate urgent interim
relief. The court
a quo
erred insofar as it held the contrary.
[36] The appellant did not apply for the relief to be granted as per
the amended notice of motion which was annexed to his replying
affidavit, because in his replying affidavit he made such an
application dependent upon the court
a quo’s
ruling on
the jurisdiction issue. He averred in his replying affidavit that ‘if
the court is of the view that a matter should
be referred to the
Bargaining Council I will then request amended relief as per the
amended notice of motion hereto’. The
court
a quo
did
not say that the matter ought to be referred to a Bargaining Council
presumably because it held that it had jurisdiction to
grant interim
relief and that the relief sought in the notice of motion was
interim. But it was not for the court
a quo
to advise a
litigant employee concerning the forum to which he was to refer his
dispute to, particularly a litigant, who, like
the appellant, was
represented on a luxurious scale, by a firm of attorneys as well as
junior and senior counsel. In those circumstances
it was also not the
duty of the respondents, nor is it the duty of this Court to advise
the appellant as to the forum that he ought
to have approached.
[37] The appellant denied that the main issue was about the
enforcement of rights created by a collective agreement, or that his
case was that the SAPS acted contrary to Resolution 7 of 2000, or
about whether he ought to have referred the dispute to the CCMA,
or
to the relevant bargaining council, for conciliation and arbitration.
Instead, the appellant averred in his replying affidavit
the
following: ‘[T]he main issue does not concern the
interpretation or application of Resolution 7, but the fairness or
otherwise of the second respondent’s decisions to stop my
salary at the beginning of December 2009, and to terminate my
services on 30 September 2010.’ This is contrary to what the
court
a quo
perceived the appellant’s case to be about.
According to the appellant, it was indeed about the fairness of the
suspension
of payment of his salary, but more significantly, also
about the fairness of his dismissal. If the appellant admitted that
his
case was about the interpretation or application of Resolution 7
of 2000, which is a resolution of the PSCBC and a collective
agreement,
he would have had to admit that it was a matter that had
to be referred to the Commission for Conciliation, Mediation and
Arbitration
(‘CCMA’) or to the PSCBC, if its dispute
resolution procedure so provides, for Resolution in terms of s24 of
the Act.
It is plain in the Act that the Resolution of such disputes
is by conciliation, if unsuccessful, by arbitration at the CCMA, or
the relevant council.
[38] It is apparent from an analysis of the facts that the crucial
and central issue in the matter was indeed about the termination
of
the appellant’s employment and the fairness thereof, despite
the appellant’s averments to the contrary. His employment
was
terminated in July 2010 and not on 30 September 2010. This is clear
from the letters of the second respondent to that effect
which I have
referred to above. In order for the appellant to be ‘reinstated
forthwith to his full salary, benefits and emoluments’,
as he
claims, he would have to be reinstated in his employment. The court
would, as a matter of necessity, have to decide on the
fairness of
the termination of his employment. The appellant cannot be reinstated
in his employment, unless the court finds that
his dismissal was
substantively unfair.
[39] In the circumstances, the court
a quo
ought to have found
that it had no jurisdiction to effectively adjudicate the termination
of the appellant’s employment with
SAPS in the circumstances
where there has been no compliance with the jurisdictional
requirements provided for in s191 and s 24
of the Act.
[40] It was argued before us that if it should be found that the
court
a quo
had no jurisdiction to entertain the application
the appellant should nevertheless be granted the costs of the appeal,
because
the respondents were asked by the appellant’s attorneys
to advise which forum was the appropriate one for the appellant to
approach, but the respondents did not do so. This argument is
disingenuous. It is apparent that the respondents appropriately
informed the appellant through his attorneys that he had to obtain
the necessary legal advice. There is nothing to indicate that
the
respondents had a legal duty to advise the appellant, who was
apparently adequately legally represented, of the forum that
he had
to approach for whatever relief he sought. In any event, the irony of
this argument of the appellant lies therein that when
the respondents
contended in their answering papers that the Labour Court had no
jurisdiction the appellant, no doubt on the advice
of his lawyers,
contended the contrary. At the hearing, the respondents’ point
on lack of jurisdiction was also countered
with a contrary argument
on behalf of the appellant, who was represented by junior and senior
counsel. The latter was clearly not
dependent on the advice of the
respondents concerning the appropriateness of the forum. If the
appellant, a layperson, was not
legally represented or represented to
the extent that he was, this argument may have had some merit, but
given that he was apparently
throughout legally represented by
attorneys, as well as junior and senior counsel, this argument is
deserving of being rejected
out of hand.
[41] In light of this finding on jurisdiction, which is decisive, I
need not deal with the issue of the striking out, or the merits,
in
any detail. In my view, assuming the Labour Court did have
jurisdiction, the court
a quo’s
decision on those issues
cannot be faulted, save to the extent that the court
a quo
ought to have found, in respect of the merits, that the appellant, in
effect, was seeking final relief and had not made out a case
for it.
[42] In the result, the appeal is dismissed with costs.
__________________
Coppin AJA
Acting Judge of the Labour Appeal Court
I agree:
_________________
Waglay JP
Judge President of the Labour Appeal Court
I agree:
_________________
Tlaletsi ADJP
Acting Deputy Judge of the
Labour Appeal Court
APPEARANCES:
FOR THE APPELLANT: B T Pienaar SC and A Rawjee
Instructed by Gouws Attorneys
FOR THE RESPONDENT: N GQAMANA
Instructed by the State Attorney (Port Elizabeth)
1
In
his replying affidavit, in response to the respondents’
challenge of the court’s jurisdiction, the appellant states
that if the court was of the view that the matter ought to have been
referred to the bargaining council, he would then request
amended
relief as per an amended notice of motion which was annexed to the
replying papers. In the amendment he,
inter alia
, asks that,
pending finalisation of his application to the Public Service
Co-ordinating Bargaining Council (“
PSCBC
”), his
“termination of service of 30 September 2010 be set aside”
and that he be “reinstated in his employment
with full salary
benefits and emoluments with interest at the legal rate, pending
finalisation of his application for ill-health
retirement/medical
boarding and in terms of paragraph 2.2, that he be “allowed to
apply for ill-health retirement/medical
boarding”. He also
asks that he be “temporarily reinstated forthwith in his full
salary, benefits and emoluments
with interest at the legal rate
backdated as and from 1 December 2009 pending finalisation of his
application for reinstatement
and for medical boarding”. The
court
a quo
never expressed the view that the matter ought to
have been referred to the PSCBC and the amendment was never granted.
In the
appellant’s heads of argument, filed in the appeal, it
is submitted on behalf of the appellant, that the court
a quo’
s
order be set aside and replaced with an order in the terms set out
in paragraphs 2 and 3 of the notice of motion, alternatively,
the
order set out in paragraphs 2, 3 and 4 of the amended notice of
motion.
2
The
paragraph is quoted out of context. The letter is with regard to
sick leave. It appears to be in response to a letter from
the
appellant’s attorneys, although we do not know what that
letter was about, since a copy was not annexed to the appellant’s
papers. Booysen (referred to in the letter as Commander –
Senior Superintendent Organised Crime Unit) states in his letter:
‘
1. The fact that your client
is off sick until 2009-11-10 has been recorded on our records.
The contents of your letter were communicated with our
legal services as special notices were served on the member to
report
on duty as stipulated.
Furthermore it was decided by the management that no
further leave will be granted to the member within this leave
cycle, not
to create a further precedent.
It is furthermore evident that your client is not in a
position to return to work due to his post-traumatic stress
disorder
he is suffering, therefore a recommendation with regards
to his fitness to be a policeman will be forwarded in due course to
head office.
Any further enquiries can be forwarded to Senior
Superintendent H G Booysen.’
3
It
is noteworthy that this letter emanates from’ the Subsection
Head: Occupational Incidents’ of the SAPS.
4
[2007]
JOL 20274
(PSCBC).
5
2006
(1) SA 75
(E).
6
Act
66 of
1995.
7
Act
75
of 1997.
8
S.A.
Railways & Harbours v Sceuble
1976 (3) SA 791
(A) at 794C.
9
HJ
Erasmus
et al
‘
Superior Court Practice”
at
A-58A;
Cohen v Coetzee
1912 EDL 305
and
Berkowitz v Wilson
1922 OPD 230.
10
See,
for example,
S v Absalom
1989 (3) SA 154
at 164D-E where it
was held that an order made by a court that has no jurisdiction is a
nullity and did not have to be complied
with. Compare:
NUM v
Elandsfontein Colliery (Pty) Ltd
[1999] 12 BLLR 1330
(LC) para
[8] At 1332H;
Dartprops (Pty) Ltd v CCMA and others
[1999] 2
BLLR 137
(LC) paras [8] and [9] at 139F-G
.
11
Mkhonto
v Ford NO and others
[2000] 7 BLLR 768
(LAC) para [8];
Department of Correctional Services and another v POPCRU and
others
[2012] 2 BLLR 110
(LAC).
12
In
Commercial Workers Union of SA v Tao Ying Metal Industries and
others
[2008] ZACC 15
;
2009 (2) SA 204
(CC) para 68 it was held that where a
point of law is apparent on the papers, but the common approach of
the parties is based
on a wrong perception of what the law is, a
court is not only entitled, but is obliged to raise the point of law
and require
the parties to deal with it, otherwise the result would
be a decision premised on an incorrect application of the law. The
Constitutional
Court held that this would infringe the principle of
legality. That court accordingly held in that case the Supreme Court
of
Appeal was entitled to
mero motu
raise the issue of the
Commissioner’s jurisdiction on appeal and to require argument
on the point.
13
See
the majority judgment in
NUMSA v Driveline Technologies (Pty) Ltd
and Another
[2007] ZALC 66
;
[2000] 1 BLLR 20
(LAC) para [74] at 38A.
14
SACCAWU
v Shoprite Checkers (Pty) Ltd
[1997] 10 BLLR 1360
(LC).
15
Rammekwa
v Bophutatswana Broadcasting Corporation and another
[1998] 5
BLLR 505
(LC).
16
Fordham
v OK Bazaars (1929) Ltd
(1998) 19 ILJ 1156 (LC).
17
University
of the Western Cape Academic Staff Union and others v University of
the Western Cape
(1999) 20 ILJ 1300 (LC).
18
See
paras [11]-[12].
19
SACWU
and others v Sentrachem
[1999] 6 BLLR 615
(LC).
20
See
SACWU and Others v Sentrachem
at para [18].
21
Hultzer
v Standard Bank of South Africa (Pty) Ltd
[1999] 8 BLLR 809
(LC).
22
See
Hultzer v Standard Bank of South Africa (Pty) Ltd
at para
[9].
23
NUM
v Elandsfontein Colliery (Pty) Ltd
.
[1999] 12 BLLR 1330
(LC)..
24
Paledi
and another v Botswana Broadcasting Corporation,
J323-324/98
reported in 3,4 Labour Court Digest at 184.
25
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ 2153 (LAC) para [59].
Confirmed in
Republican Press (Pty) Ltd v Chemical Energy
Printing Paper Wood & Allied Workers Union and others
(2007)
28 ILJ 2503 (SCA) para [19].
26
See
above at 39B-C para [81]. It was held by the majority that s157(4)
of the Act does not mean that the Labour Court has jurisdiction,
to,
in its discretion, adjudicate a dismissal dispute that has not been
referred to conciliation, but meant merely that the court
had a
discretion to entertain a dispute that had been referred to
conciliation , but in respect of which a certificate contemplated
in
s191(5) of the Act had not been issued and the party had merely
acquired the right to refer the dispute to the Labour Court
for
adjudication because the required period since the dispute had been
referred for conciliation had elapsed and the dispute
remained
unresolved.
27
Booysen
v Minister of Safety and Security and others
[2011] 1 BLLR 83
(LAC) para [34].
28
Referred
to by Grogan AJ in
NUM v Elandsfontein Colliery
(Pty) Ltd
(see above) para [21].
29
Maropane
v Gilbeys Distillers and Vintners (Pty) Ltd and another
[1997]
10 BLLR 1320
(LC) at 1323 E-F.
30
Approved
in
Booysen v Minister of Safety and Security and others
(see
above) para [34].
31
See:
Gcaba v Minister of Safety and Security
2010 (1) SA 238
(CC)
paras 74-75
; Booysen v Minister of Safety and Security and others
(see above) para [35].
32
See
the authorities referred to in the previous footnote.
33
See,
amongst other decisions:
Hultzer v
Standard Bank of South Africa (Pty) Ltd
(see
above);
University of the Western Cape
Academic Staff Union and others v University of the Western Cape
(see above);
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000]
4 BLLR 469
(LC) para [9].
34
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) at 532I;
BHT
Water Treatment (Pty) Ltd v Leslie
and another
1993 (1)
SA 47
(W) at 55. Also compare
National Union of Metalworkers of
South Africa and others v Bader Bop (Pty) Ltd and another
(2003)
24 ILJ 305 (CC), where it was held that it was the duty of the court
to ascertain the true nature of the dispute between
the parties and
that in doing so the court must look at the substance of the dispute
and not its form.