About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 94
|
|
Mashego v National Union of Metalworkers South Africa (JA 2013/13) [2014] ZALAC 94 (13 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JHANNESBURG
Not
Reportable
Case
no: JA 2013/13
In
the matter between:
BOOYSEN
MFANANYANA MASHEGO
Appellant
and
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
Respondent
Heard:
20 March 2014
Delivered:
13 May 2014
Summary:
jurisdiction of the Labour to hear automatically unfair dismissal-
appellant’s case not one contemplated in section
191(5)(b) of
the LRA- Labour Court not bound by the description of dispute in the
certificate of outcome. Labour Court lacking
jurisdiction for unfair
dismissal dispute- Labour Court judgment upheld- appeal dismissed-
Coram:
Waglay JP, Molemela AJA and Sutherland AJA
JUDGMENT
SUTHERLAND
AJA:
Introduction
[1]
This case
is about whether or not the Labour Court was correct to hold that it
had no jurisdiction to try the case put up by the
appellant
(applicant
a
quo
).
The appellant was aggrieved by his allegedly unfair dismissal by the
respondent. An alleged unfair dismissal case must be heard
by a
commissioner of the CCMA unless the aggrieved employee alleges that
the reason for the dismissal is automatically unfair as
contemplated
in Section 191(5)(b) of the LRA, in which case the matter must be
referred to the Labour Court for adjudication.
[2]
The
appellant referred his case to the Labour Court, contending that the
case pleaded made out a case for an alleged automatically
unfair
dismissal. Prompted by the trial judge, this question was addressed
at the outset of the proceedings as the answer to it
would determine
whether the court had jurisdiction. The judge, after argument, held
that the court lacked jurisdiction because
no such case was made out.
This is the heart of the appeal. In addition the costs order made
against the appellant is challenged.
[3]
Other lines
of argument were taken which can be disposed of summarily.
3.1.
First, it
was contended that because the conciliator, in the certificate of
non-resolution, had mentioned a referral to the labour
court and
alluded to an automatically unfair dismissal, the court was bound by
the say-so in that certificate unless and until
the certificate was
reviewed and set aside.
3.2.
This is
mistaken; the certificate has no bearing on a court deciding whether
it has jurisdiction. (see: NUMSA and Others v Driveline
Technologies
(Pty) Ltd (2000) 21 ILJ 143 (LAC) at [9])
3.3.
Secondly,
with reference to a passage in the minute of the pre-trial conference
that recorded the respondent as stating that it
would argue ‘at
the conclusion of the matter’ that the court had no
jurisdiction because the dismissal was ‘not
automatically
unfair in terms of section 187(1)(d)(i) of the LRA’ it was
contended on behalf of the appellant that it was
not permissible to
argue that point at the outset.
3.4.
This is
mistaken. Logic alone demands that any challenge to the jurisdiction
of a court be resolved before the potential waste of
time, energy and
money on a trial. It is a correct proposition that once litigants
have committed themselves to the issues to be
contested in a
pre-trial conference, they may not unilaterally repudiate that
commitment. (See:
Filta-Matrix
(Pty) Ltd v Freudenberg and Others
[1997] ZASCA 110
;
1998 (1) SA 606
(SCA) at 614 B- D.) This is a rule founded on common
sense and fairness which are required to facilitate a fair
adjudicative process.
3.5.
However,
where an inappropriate arrangement about the
conduct
of the proceedings is agreed upon, that agreement does not bind the
court. Still less is a court bound by a mere statement by a
litigant
about what and when it proposes to argue a point, which does not
amount to an agreement, but is merely a declaration of
intent to
fairly alert the opponent to its intentions. Accordingly, the
allusions in the minute are irrelevant to the propriety
of the timing
of the decision about the existence of jurisdiction.
[4]
Because the
existence of an alleged automatically unfair dismissal is a
jurisdictional prerequisite to the Labour Court hearing
a trial, it
must logically follow that it is incumbent on a court to enquire into
whether such a case has indeed been articulated
for its adjudication,
whether that question is raised by the litigants or not. This enquiry
is not to be confused with an enquiry
into the contested merits of
the allegations and counter-allegations, which is the purpose of the
trial itself.
[5]
If a proper
interpretation of the pleadings and any common cause facts put before
the court demonstrates the absence of a set of
circumstances that can
support a conclusion that a dismissal took place that was
automatically unfair then the court lacks jurisdiction
and ought to
refuse to hear the matter.
[6]
The
question in this matter, thus, resolves itself into whether or not
such a case was shown on the pleadings and on the agreed
facts set
out in the pre-trial conference minute.
[7]
The
statement of claim alleged that the appellant was charged with
misconduct and subjected to a procedurally unfair disciplinary
enquiry in that, among other complaints, his opportunity to
cross-examine and to testify were truncated. Also, it was alleged
that the charges were meritless as he was not guilty of any
misconduct.
[8]
The
appellant avers that he was dismissed. He then appealed. The appeal
tribunal sent him a written notification of the outcome.
It stated:
‘
(1) I uphold the decision of
the chairperson of the hearing to dismiss you from your employment
with NUMSA.
or
(2) You are demoted to a position of
local organiser either Ekurheleni region or JC Bezuidenhout region
wherever there is a vacancy,
the idea is not to place you in a
position of trust and responsibility either in the region or head
office for a period of four
years.
(3) You will earn the salary of an
organiser.
(4) You will be required to respond
….in writing within 5 days of your choice of one of these
sanctions.”
[9]
The
appellant pleaded that upon receipt of this notice, he responded and:
‘…
he opted /or chooses
the demotion option in the sanction subject to and without prejudice
to any of his rights to challenge both
the finding of guilty and the
sanction.’ (Statement of Claim: para [41])
[10]
The
appellant pleaded that the respondent reacted by telling the
appellant:
‘
...he should not report to the
respondent head office or any of the two NUMSA regions...in that it
regards the [appellant’s]
acceptance of the alternative
sanction conditional and therefore the [appellant] had repudiated the
offer.” (Statement of
Claim: para [42])
[11]
These
averments were admitted by the respondent.
[12]
The
appellant then went onto plead that he was dismissed twice. He
construed the verdict of the initial disciplinary enquiry as
the
‘first dismissal’ and the respondent’s refusal to
allow him to report for duty after he chose the demotion
option as a
‘second dismissal’. The respondent’s statement of
defence did not specifically take issue with the
appellant’s
construction of two dismissals but nevertheless denied all the
allegations which were critical of the procedure
and the substantive
justification for the outcome of dismissal.
[13]
The
appellant went on to plead:
‘
The second dismissal of the
[appellant] is in terms of section 187(1)(d)(i) of the LRA
automatically unfair as the reason for the
dismissal is that the
[appellant] indicated an intention to take action against the
respondent by exercising rights conferred to
him by the LRA.’
(Statement of Claim: para 51).
This averment was denied
by the respondent.
[14]
The
pre-trial conference minute contained a set of common cause
facts
.
Paragraphs 2.21 – 2.23 are relevant:
‘
2.21: After finding the
applicant guilty, and having given the parties an opportunity to
present mitigating circumstances and aggravating
circumstances the
chairperson provided the parties with his ‘respondents’
deputy secretary via Email on 25 October
2010.
2.22: The applicant appealed the
sanction, and the appeal was held on 6 November 2010 under the
chairmanship of the respondent’s
vice- president, Mr Philemon
Bokaba.
2.23: Bokaba found the applicant
guilty and imposed a sanction in terms whereof the applicant was
provided with an alternative to
dismissal, namely demotion to the
position of local organiser Ekurheleni or JC Bezuidenhout region,
subject to availability of
positions in either branch. The applicant
was given five days to consider this alternative and to inform the
respondent’s
general secretary thereof in writing.’
[15]
Do these
averments and common cause facts constitute a platform upon which to
conclude that the dismissal was automatically unfair?
The Court had
to assume the truth of the
facts
alleged by the appellant, which in any event were all admitted, and
test whether or not they could support the conclusion pleaded
in
paragraph 51 of the statement of case.
[16]
It seems to
me that two insurmountable obstacles impede the argument of the
appellant. First, the notion of two dismissals is unsustainable.
Second, the absence of
facts
pleaded to show that the dismissal was caused by an expression of an
intention that a dispute would be referred to the CCMA.
Two
dismissals?
[17]
The very
conceptualisation of a double dismissal is flawed. A person who has
been dismissed cannot, logically, be dismissed a second
time. It is
possible for there to be sequential dismissals of a person, but that
notion implies that the ‘first’ dismissal
was rescinded.
However that is not what was pleaded.
[18]
In my view,
the construction of the appellant’s case was clumsily composed
without really thinking through the implications
of the allegation of
two dismissals or properly identifying the legal standing of each of
the critical events.
[19]
When an
employee is lawfully, albeit unfairly dismissed, the employment
relationship is terminated there and then. (It is true that
for the
purpose of proceedings in the Labour law realm the necessary fiction
is upheld that the relationship continues but that
is a legal
construct which exists to facilitate equity litigation and does not
undermine the finality of the dismissal per se.)
Unlike in legal
proceedings where an appeal suspends the operation of a judgment, no
such doctrine of suspended operation is applicable
to a dismissal by
an employer.
[20]
An appeal
to higher managerial authority by an employee invites that authority
to undo or reverse what has already become a
de
jure
fact: the dismissal. Accordingly, the appeal tribunal cannot
‘dismiss’ an employee for a second time. When an appeal
fails, the initial sanction of dismissal stands. To belabour the
point, when an employee’s appeal fails it cannot be construed
that he was unfairly dismissed because his appeal ought to have
succeeded. The appeal tribunal may be wrong, but its decision does
not overtake or succeed that of the initial disciplinary enquiry. In
cases where the appeal succeeds, the initial dismissal is
undone or
retrospectively rescinded.
[21]
It follows
that the appellant’s premise of two dismissals was fatally
flawed and there could only ever be one dismissal: that
which took
effect upon the decision of the disciplinary enquiry; ie the
dismissal which the appellant construed as the ‘first’;
dismissal’. The inevitable consequence of this analysis is that
the very foundation for the complaint about the so-called
‘second
dismissal’ is demolished.
What
facts are there to show the cause of the dismissal was the intention
to refer a dispute to the CCMA?
[22]
The sole
‘fact’ alleged, as distinct from a conclusion, to find an
automatically unfair dismissal is that the respondent
offered to
ameliorate the sanction of dismissal if the appellant was content
with a demotion and that his counter offer of a conditional
acceptance was refused, the confirmation of the dismissal being
confirmed. This fact is common cause. Can it support the conclusion
that the reason the appellant was dismissed was because he intended
to challenge the disciplinary action taken against him? In
my view,
it cannot.
[23]
The sole
dismissal was the result of having been found guilty of misconduct.
The offer of an amelioration of the sanction of dismissal
cannot
transform the dismissal or in any way compromise the reason for the
dismissal. Therefore the pleaded allegations of fact
cannot, on their
own terms, lead to a finding that the reason for the dismissal was,
as alleged, the prohibited conduct described
in section
187(1)(d)(i): ie, “ A dismissal [which is] automatically
unfair …[because] the reason for the dismissal
is that the
employee indicated an intention to take action against the employer,
by exercising any right conferred by [the LRA]”
[24]
The Labour
court was therefore correct to hold that no case for an automatic
unfair dismissal was made out and as result, the court
lacked
jurisdiction.
The
discretion in section 158(2)(a) to refer the matter to the CCMA
[25]
It was
contended that once the Labour court found it lacked jurisdiction it
ought to have exercised its discretion to refer the
matter to the
CCMA and not leave it for the appellant to be put to the trouble of
starting afresh and, axiomatically, being obliged
to seek condonation
for the late referral.
[26]
Although
the point was mentioned in the notice of appeal, the heads of
argument filed did not allude to the point. In oral argument
it was
again pressed.
[27]
However,
nowhere has any substantiation been advanced why the failure to make
such an order was an unjudicial exercise of discretion,
the necessary
fount of any criticism of a discretionary decision. The ostensible
basis for the contention seems to be a plea
ad
misericordium.
That
is not enough.
[28]
Thus, the
argument, bereft as it of a cogent foundation, must fail.
Costs
[29]
The order
issued on 27 august 2012, in respect of the Trial Court’s
judgment, by the registrar, contains an order that the
appellant was
to pay the costs. However, when the
ex
tempore
judgment
was given on 27 August 2012, the judge quite plainly stated that
there would be no costs order made. The discrepancy has
not been
explained. In my view, the judges’ initial stance should
prevail.
[30]
As regards
costs in the appeal, I am of the view that no order as to costs be
made.
Order
[31]
The appeal
is dismissed, save in respect of the costs order.
[32]
The appeal
against the costs order is upheld. The order that the appellant
(applicant
a
quo
)
pay the costs is set aside, and replaced with an order that there be
no order as to costs.
[33]
In the
appeal, there shall be no order as to costs.
Sutherland
AJA
I
agree
Waglay
JP
I
agree
Molemela
AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv W Mokhari SC,
with him, Adv H W Sibuyi,
Instructed by Faku
Attorneys.
Ref: Mr T Faku
FOR
THE RESPONDENT:
Mr B M Masuku of Mervyn Taback Inc.