About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 15
|
|
Mhlongo v South African Revenue Service (JA3/16) [2017] ZALAC 15; (2017) 38 ILJ 1334 (LAC); [2017] 9 BLLR 859 (LAC) (16 February 2017)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA3/16
In
the matter between:
CHARLOTTE
C MHLONGO
Appellant
and
SOUTH
AFRICAN REVENUE
SERVICE
Respondent
Heard:
29 November 2016
Delivered:
16 February 2017
Summary:
Claim for specific performance for breach of contract in the form of
reinstatement – employee
alleging that employer suspending and
then dismissing her without affording her an opportunity to make
representation in terms
of the disciplinary code – no need for
an employer to hold a disciplinary hearing when employer’s
repeated attempts
to contact employee unsuccessful. Moreover,
employee’s relief academic because employee suspension
overtaken by her dismissal.
On dismissal no case made out on papers
of a breach of contract. No purpose remitting matter to the Labour
Court in light of its
misdirection that it lacks jurisdiction to
entertain employee’s dispute.
Coram:
Waglay JP, Coppin JA
et
Phatshoane AJA
JUDGMENT
WAGLAY JP
Introduction
[1]
The
appellant brought an application in the Labour Court in terms of
Section 77 of the Basic Conditions of Employment Act, 75 of
1997,
(BCEA) alleging that the respondent (her employer) had breached her
contract of employment by first suspending and then dismissing
her
without complying with the terms of her contract. The relief the
appellant sought were declaratory orders, and, in essence,
an order
of specific performance, i.e reinstatement.
Background
[2]
The
appellant was arrested at her workplace on 31 March 2009 on
allegations of corruption. It was alleged that she demanded and
accepted payments from prospective or fixed term contract employees
to secure them employment with her employer.
[3]
At
the time of her arrest, the police were accompanied by one Seshoka
her co-employee. According to the appellant, at the time of
her
arrest, Seshoka “grabbed” her two cell-phones, took
possession of her access card to the employer’s premises
and
the laptop issued to her by her employer. Seshoka also informed the
appellant that she was suspended with immediate effect.
[4]
On
20 April 2009, the appellant consulted with her attorneys who wrote
to her employer demanding written confirmation that she was
suspended
and reasons for such suspension. The letter records that at the time
of her arrest, Seshoka had informed her that she
was suspended and
had confiscated her access card. The letter then adds that she has
yet to receive written confirmation of her
suspension and states that
she was innocent of the charges preferred against her by the police.
The appellant’s attorneys
received no response to this letter.
[5]
About
two months later, on 15 June 2009, appellant’s attorneys
addressed a further letter to the employer stating that the
appellant
had not received her salary for the month of June and made a demand
for it.
[6]
The
employer responded to the appellant’s attorneys (although the
date on the letter indicates 10 December 2008, which was
clearly
wrong). The second paragraph of the letter states the following.
‘
Kindly
note your client’s services were terminated by SARS on 19 May
2009 after she failed to report for duty as per attached
correspondence marked A and B. Unsuccessful attempts were made by HR
to have the letters hand delivered at her place of residence
after
which the services of a Speed Service were procured to have the
letters delivered. The letters were eventually delivered
via a speed
service, and proof of the said deliveries was furnished to SARS by
the service provider’.
[7]
The
letters referred to in the above paragraph called upon the appellant
to immediately report for duty or inform the employer of
her
whereabouts and the reasons for her absence from work. The appellant
avers that she never received the said letters.
[8]
The
appellant then launched the application, which is the subject of this
appeal, seeking the following relief:
‘
a)
Declaring the decision of the respondent to suspend and subsequently
dismiss the applicant
on the 19
th
May 2009 unlawful;
b)
Declaring the failure by the respondent to follow its disciplinary
code and procedure,
a breach of the terms of the employment contract
between the applicant and the respondent;
c)
The respondent be ordered to allow the applicant to return to work;
d)
The respondent be ordered to pay the applicant, her salary and all
benefits from
the 19
th
May 2009 to the date on which her
salary and benefits are restored;
e)
The cost of this application.’
[9]
The
basis for the relief sought was that the employer had:
i.
Breached
the Disciplinary Code of Conduct (“the Code”) which
applied to her; and
ii.
Failed
to give any prior notice of suspension and dismissal or give the
appellant an opportunity to make representations before
taking the
decision to suspend and later dismiss her.
[10]
The
employer opposed the application. The employer denied that Seshoka
“grabbed” or had taken the cell-phones from the
appellant
averring that the police had confiscated the phones, laptop and the
access card. The employer also denied that the appellant
was told
that she was suspended. Furthermore, an unsigned memorandum dated 8
April 2009 (eight days after the appellant’s
arrest), prepared
by Seshoka, was attached to the employer’s replying papers, in
terms of which the employer was requested
to suspend the appellant.
[11]
According
to the employer, the appellant simply stayed away from work after her
arrest. Adding that, three days after her arrest,
on 3 April 2009,
she faxed a medical certificate to her employer which stated that she
was medically unfit to return to work until
8 April 2009. A further
medical certificate was forwarded to the employer on 8 April 2009
which stated that she would be unfit
to work until 17 April 2009.
[12]
The
employer heard nothing further from the appellant save for the
letter, dated 20 April 2009 from the appellants’ attorneys,
referred to earlier. The employer did not respond to this letter.
[13]
On
8 May 2009, the employer wrote a letter to the appellant, stating the
following:
‘
It has
come to the attention of Management of this office that you have been
absent from your place of work without permission and/or
approved
leave and/or having communicated to your team leader/manager since 20
April 2009 to date.
You are requested to immediately
report for duty, or to inform your team leader/manager of your
whereabouts and the reason/s thereof
as is required from you in terms
of the SARS policy:
Timely Reporting of Unexpected Absences
.
I wish to inform you that should
you fail to report for duty or inform your team leader/manager of
your whereabouts within 5 working
days from the first day of your
absence, SARS will immediately stop your remuneration and will
terminate your employment contract
with immediate effect.
You are hereby instructed to report
for duty or to contact your team leader/manager immediately.’
[14]
The
above letter was followed 11 days later by another letter dated 19
May 2009 from the employer to the appellant, which said:
‘
You have
failed to report for duty or to inform your team leader/manager of
your whereabouts and the reason/s/therefore within the
prescribed 5
working days from the first day of your absence as is required from
you in terms of the SARS policy:
Timely
Reporting of Unexpected Absences
.
I wish to inform you that you have
made yourself guilty of abscondment and/or desertion and your
services will therefore be terminated
with immediate effect.
You have the right to appeal
against the termination of service within 10 working days from the
date of receipt of this letter following
the Appeal procedure as
provided for in terms of the
Disciplinary Code and Procedure’
.
[15]
The
employer confirmed that the letters were sent by Speed Services after
delivery by hand and registered mail failed because there
was no
response at the residence of the appellant.
[16]
The
appellant was then dismissed on 19 May 2009.
[17]
In
its opposing papers, the employer denied that the Code, relied upon
by the appellant applied, to her.
The Labour Court
[18]
At
the hearing of the matter, the appellant, from the bar, applied for
the matter to be referred for oral evidence on the following
grounds:
i)
That
since the application was launched, the appellant was acquitted of
the criminal charges and wished to place this before court;
ii)
That
at least two material disputes of fact could not be resolved on the
papers before the court: this related to:
a)
The
appellant’s suspension; and,
b)
Whether
the Code, upon which the appellant relies, was applicable to her.
[19]
The
Labour Court, per Malan AJ, refused the application. It stated that:
appellant’s acquittal could not contribute to resolving
the
dispute before it and since the appellant was aware, even prior to
launching her application, that her employer denied that
she was
suspended, the appellant could not ask for the matter to be referred
for oral evidence to determine this. On the issue
of whether the Code
relied upon by the appellant was binding, the Labour Court was of the
view that that issue could be resolved
on the papers as they stood.
[20]
The
appellant then immediately applied for a postponement of the hearing
of the application. This was also refused.
[21]
After
the postponement was refused, the employer, from the bar, brought an
application for the dismissal of the application on the
grounds that
the appellant’s case, properly construed, was a case of unfair
dismissal as contemplated in the Labour Relations
Act, 66 of 1995,
(“LRA”) and, as such, the Labour Court, it said, had no
jurisdiction to entertain the dispute. The
Labour Court was persuaded
by the submission and dismissed the application. It concluded that it
did not have jurisdiction to entertain
the dispute because, it said,
the dispute was an unfair dismissal dispute that had to be referred
to the Commission for Conciliation,
Mediation and Arbitration for
arbitration. The basis for this decision by the Labour Court appears
to be its finding that the Code,
relied upon by the appellant, did
not apply to her and that she, consequently, had to proceed in terms
of the LRA and not the BCEA.
The appeal
[22]
The
appellant sought and was granted leave to appeal by the Labour Court
against the order dismissing the application on the grounds
of lack
of jurisdiction.
[23]
At
the commencement of the hearing of the appeal, the point was raised
that even if this Court had to find that the Labour Court
erred in
concluding that the Code was not applicable, or that it erred in
concluding that this was a dismissal dispute, as contemplated
by the
LRA, it would serve no purpose to refer the matter back to the Labour
Court, because on the papers before the Labour Court,
the appellant
had failed to make out a case for a breach of contract.
[24]
Perhaps
it is appropriate here to deal with the application for a
postponement of the appeal which was made by appellant’s
counsel, on her behalf, towards the end of his argument. The purpose
of the application for postponement, according to counsel,
was to
petition this Court for leave to appeal against the Labour Court’s
refusal to grant leave to appeal against its decision
to refer the
matter for oral evidence. This Court refused the postponement. The
leading of evidence to prove that the appellant
was acquitted of the
criminal charge, cannot assist her to prove that she was suspended.;
She was aware that her suspension was
disputed by the employer even
before she launched her application and could not now seek to refer
the determination of that fact
to oral evidence. and, finally, there
is no need to refer for oral evidence the applicability of the Code
because, even if the
Code is applicable, for reasons stated later in
this judgment, it will be of no assistance to the appellant.
[25]
The
appellant’s case is premised upon the Code, particularly clause
10.2, which provides:
‘
No
employee may be dismissed, demoted or suspended without pay for
misconduct, without being granted a formal disciplinary hearing
as
contemplated in this Disciplinary code and procedure unless the
holding of a disciplinary hearing is made impossible by the
employee
by failing to attend the hearing for no valid reason, or the employee
indicating clearly and unequivocally that he/she
is not prepared to
participate in the disciplinary hearing.’
[26]
For
purposes of this judgment, I am prepared to accept that the Labour
Court erred and that the Code, including the quoted clause,
is
applicable and is a term of the appellant’s employment
contract. But the clause is of no assistance to the appellant,
because the evidence in this Court, with regard to the appellant’s
suspension, is mutually destructive. Since the appellant
was seeking
final relief in the Labour Court on motion, it is the respondent’s
(employer’s) version which must be accepted
when there is a
genuine dispute of fact. All there is in the papers filed in the
Labour Court, is the appellant’s allegation
that on the date
and time of her arrest, she was told by Seshoka that she was
suspended with immediate effect and that he confiscated
her mobile
phones, laptop and access card. These allegations are denied by her
employer. The appellant’s argument that no
credence should be
placed on the employer’s evidence because it made no sense for
the police to confiscate her access card,
is without merit. There is
no basis to come to this conclusion without any supporting facts. Her
further argument that the employer’s
failure to respond to her
attorneys’ letter of 20 April 2009 made the employer’s
version improbable, as the employer
sought to avoid dealing with the
issues raised in the said letter, is again without any basis. There
are no grounds upon which
one can draw such an inference. The fact
that there is no response to a letter does not make its contents
valid, particularly when
there is other evidence to show a contrary
position.
[27]
The
employer points to the fact that if the appellant was in fact
suspended on 31 March 2009 and not required to report for duty,
she
would not have provided medical certificates to the effect that she
was unfit to report for work until 17 April 2009. Her explanation
that the doctor had done this of his own volition is difficult to
comprehend or accept. Furthermore, the fact that her employer
wrote
to her threatening her with dismissal if she did not return to work,
and a report from Seshoka, eight days after she was
arrested, calling
on the employer to suspend the appellant, makes the employer’s
version far more probable. In the circumstances,
the appellant will
not be able to satisfy the Labour Court that she was indeed
suspended.
[28]
The
onus
is upon the appellant to satisfy the court about the fact she alleges
to be correct. Here at best for the appellant, since there
is no
basis to reject either of the versions presented on affidavit, the
appellant has failed to discharge her
onus
.
Anyway, events have overtaken the need to deal with the issue of
suspension. If breach of contract is established with respect
to her
suspension, she cannot get reinstatement for that reason, because she
has since been dismissed for failing to return to
work when she was
required and was obliged to do so.
[29]
Insofar
as the appellant relies on the above quoted clause from the Code to
claim that the employer breached the term of the agreement
by
dismissing her without giving her an opportunity to state her case,
such reliance is also misconceived. How is an employer to
give a
notice about a misconduct hearing to an employee who fails to come to
work or respond to a letter calling her to return
to work, or explain
why she is unable to do so? The employer in its correspondence called
the appellant to return to work or explain
why she remains absent
under threat that she will be dismissed. The appellant failed to
respond. The employer gives details on
its attempts to serve the
letters by hand and also that those entrusted to deliver the letters
by hand spoke to neighbours etc.
The employer then tried to serve the
letters by registered post and finally utilised the services of Speed
Service. As against
this there is no explanation from the appellant.
She does not state whether she was informed by her neighbours about
her employer
seeking her, or whether she received the registered mail
slips at all, or whether she received the letters from Speed
Services.
There is no dispute that the address to which the
correspondence was sent was correct. Other than for a bold one-liner
that she
did not receive the correspondence from the employer, there
is no further explanation from her for that. In these circumstances
the employer cannot be faulted for dismissing the appellant,
particularly, since one of the terms that regulates their
relationship
provides:
‘
2.4.5
If an employee fails to advise the team leader or direct manager of
his or her absence, and is absent for three
(3) successive work days,
the team leader or direct manager shall send a communication via
registered mail to the employee’s
last known address or via
other practical means e.g. hand-delivered notification, requesting
the employee to return to work, simultaneously
notifying the employee
that failure to do so will result in dismissal.
2.4.6 Should an
employee be absent from work for five (5) consecutive work days
without communicating his or her
absence and the reasons thereof as
described in this policy, the employee will be regarded as having
absconded and his or her employment
must summarily be terminated.’
[30]
The
employer’s dismissal of the appellant was thus in compliance
with the above clause, but, this did not close the door to
the
appellant. She was entitled to appeal internally against that
decision, but failed to do so, arguing that to appeal against
the
decision was futile as the horse had already bolted. Again, the
appellant’s submission in respect of appealing the decision
is
misconceived. An internal appeal in circumstances such as this would
inevitably mean that the appellant would be required to
explain her
absence from work which must then be considered by the employer.
[31]
The
employer’s action was in compliance with the agreement that
regulated the employment relationship with the appellant and
as such
it cannot be said that it had in any way or form breached the
agreement that regulated the relationship between them.
[32]
In
the circumstances, the appellant’s claim that her suspension
and subsequent dismissal was in breach of the agreement is
without
merit. Even if the Labour Court erred in finding that it had no
jurisdiction to entertain this dispute, which it did, no
purpose is
served in setting aside that order and referring the matter back to
the Labour Court.
[33]
Finally,
I need to add that the appellant’s decision, to proceed in
terms of the BCEA instead of proceeding in terms of the
LRA is
totally mystifying, but might well have been informed by poor legal
advice. If she had proceeded in terms of the LRA she
would not only
have been entitled to claim what she sought in these proceedings on
the basis of an unfair dismissal, but would
have been engaged in a
process where the test is that of fairness and where the onus
of proving the fairness of the
dismissal is on the employer.
More mystifying is that the appellant proceeded by way of motion
proceedings knowing full well that
her principal submission would be
disputed by the respondent; that the resulting dispute would be
irresoluble on the papers, making
the application highly susceptible
to dismissal for that reason alone and thus making her application
stillborn.
[34]
Notwithstanding
the above, I am of the view that this is a matter in which there
should be no order as to costs.
[35]
In
the result, I make the following order.
The
appeal is dismissed.
________________
Waglay
JP
I agree
_________________
Coppin
JA
I agree
_________________
Phatshoane
AJA
APPEARANCES:
FOR
THE APPELLANT:
Mr. R Maastenbroek
Instructed by Maponya
Ledwaba Attorneys
FOR
THE RESPONDENT:
Mr L Kutumela
Instructed by Hogan
Lovells Inc.