About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 79
|
|
Ngutshane v Ariviakom (Pty) Ltd t/a Arivia.Kom and Others (J1067/08) [2008] ZALCJHB 79 (10 November 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE NO:
J1067/08
DATE:
2008-11-10
REPORTABLE
In
the matter between:
ANN
NGUTSHANE
Applicant
And
ARIVIAKOM
(PTY) LTD t/a ARIVIA.KOM
First Respondent
CHAIRPERSON
OF THE BOARD (ARIVIA.KOM)
Second Respondent
CHAIRPERSON
OF THE SUB-COMMITTEE
OF
THE
BOARD
Third Respondent
J
U D G M E N T
PILLAY
D, J
:
Anne
Ngutshane, the applicant, sought to review the decision of the third
respondent to dismiss her. The third respondent was
the chairperson
of the sub-committee of the board of Arivia.kom, which was the first
respondent. The facts leading to her
dismissal were as
follows: Ngutshane worked for Arivia.kom as its human
resources executive from 14 June 2004. Eskom
and Transnet were
the shareholders of Arivia.kom. When Zeth Malele, the Chief
Executive Officer, left in October 2006, Eskom
seconded Kiruben
Pillay to act as Arrivia.kom’s CEO. Ngutshane did not get
along with Pillay. She lodged a grievance against
him for being
racist and for humiliating, undermining, harassing and victimising
her. Pillay responded to the board that Ngutshane
was a
non-performer.
On 17
August 2007, the chairman of the board of Arivia.kom, the second
respondent, offered Ngutshane a separation package. Ngutshane
declined the package. Her relationship with Pillay deteriorated.
Eventually, in mid-February 2007 Ngutshane agreed to submit
to
facilitation before Thandi Orleyn, an independent facilitator.
Ngutshane subsequently objected to Orleyn's appointment
because she
represented Ngutshane’s previous employer in a dispute against
Ngutshane. On 12 March 2008, the board withdrew
its offer of
independent facilitation and directed that the grievance be
processed according to Arivia.kom’s normal procedure.
Following
a forensic accounting investigation into allegations of
irregularities and fraud, the board resolved to suspend Ngutshane
pending further investigation. On 21 April 2008, Pillay
suspended Ngutshane and instructed her to leave the premises
immediately.
The
investigation was to take about four weeks. On 26 May 2008
Ngutshane's attorneys asked Arivia.kom's attorneys, Cliffe
Dekker
Inc, for a copy of the board’s resolution to engage forensic
investigators and a copy of their report.
On 23
April 2008, Cliffe Dekker Inc denied that Ngutshane was suspended
unlawfully. It undertook to give her further particulars
once the
forensic investigation was completed and to consider her grievance.
On
the basis of three letters and an IT Web article, the remuneration
sub-committee of the board informed Ngutshane on 23 May
2008 as
follows: It believed that Ngutshane was incompatible with
Arivia.kom's aims and direction and that no purpose would be
served
by submitting a finding on her grievance. The board had
delegated the sub-committee to deal with her matter.
The
sub-committee was to convene on 9 June 2008 to decide whether, on
the common cause facts, Ngutshane irreparably damaged the
employment
relationship and whether it should terminate her employment. The
sub-committee invited Ngutshane to make representations
to it by 6
June 2008.
On 30
May 2008, Ngutshane's attorneys informed Arivia.kom that she
considered the procedure to be an attempt to dismiss her without
following a lawful and fair process before a properly constituted
disciplinary enquiry. Ngutshane declined the invitation to
submit
representations to avoid her dismissal.
On 26
June 2008 the sub-committee informed Ngutshane that it decided to
terminate her employment summarily for the following reasons:
“
6.1
the breakdown of the trust relationship as a result of your conduct;
6.2 that we have no
confidence that you will be able to honour your fiduciary
duties associated with the trust which
the Shareholders and Board
invested in you;
6.3 that you placed
yourself in direct conflict with the interests of the organisation;
and
6.4
that we believe that you are incompatible with the organization, its
aims and direction.” (
sic
)
The
procedure adopted in making that decision is the subject of this
review. The first question is whether the Labour Court
has
jurisdiction to review the decision of a public employer to dismiss
its employee. Initially, Mr Mokare who appeared
with
Mr Seleka for the employee had relied on section 6 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
During argument, he abandoned his reliance on PAJA. He continued to
rely on section 158 (1) (h) of the Labour Relations Act No
66 of
1995 (LRA) as the source of the jurisdiction of the Labour Court.
He
also relied on this Court's decision in
Maada v
The Member of the Executive Council of the Northern Province for
Finance and Expenditure and Another
,
2003 24 ILJ 937 (LAC). In that case, this court had to decide
whether it had jurisdiction because the dispute had not been
conciliated. This Court found that as section 157 (4) (a) of the
LRA gave the Labour Court a discretion to
determine a dispute that had not been conciliated, it could dispense
with conciliation
in that case. Whether conciliation is dispensable
depends on the facts of each case.
In
this case, the question arises in a context broader than whether
conciliation is a jurisdictional prerequisite for arbitration.
The jurisdictional question is whether public employees can choose
to challenge their dismissal either in the Labour Court by
way of
review or in the CCMA or Bargaining Council through conciliation and
arbitration.
Mr
Mokare submitted that the answer is “yes.” Because the
procedure that the employer applied to dismiss the employee
was not
only unfair but also unlawful, the employee had recourse to the
Labour Court. (
Fedlife Assurance
Limited v Wolfaardt
2001 22 ILJ
2407 SCA para 27;
Boxer Superstores
Mthatha and Another v Mbenya 2007 28 ILJ 2209 (SCA))
Counsel
for the respondents, Mr Cassim who appeared with Mr Boda, submitted
that the Labour Court had no jurisdiction, firstly
because
substantively, the nature of the dispute was dismissal. As such, it
should be conciliated and arbitrated. The Labour
Court should not,
as a court of first instance, hear dismissal disputes. (
Chirwa
v Transnet Ltd and
Others
,
2008 2 BLLR 97
(CC) 65-66;
Ngcobo v
KZN Health Service (
1999) 2 BLLR 148
(LC);
Mashego v Multi Hire (Pty)
Ltd
(1999) 12 BLLR 1328
LC,
PPWAWU
& Others v Nasou-Via Afrika (A Division of the National
Education Group (Pty) Ltd
(1999) 10
BLLR 1092
(LC),
NEHAWU v Pressing Metal
Industries
(1998) 10 BLLR 1035
(LC))
Secondly,
dismissal is not administrative action and is therefore not
reviewable. It is contractual in the context of labour and
employment. (
Chirwa v Transnet Ltd &
Others
(2008) 2 BLLR 97
CC
per
Skweyiya paragraph 73,
per
Ngcobo
142;
Independent Municipal & Allied
Trade Union v Northern Metropolitan Substructure and Others
1999 (20) ILJ 1018 (T))
Thirdly,
section 158 (1) (h) of the LRA and section 6 of PAJA do not apply to
dismissal disputes. If they did, they would undermine
the scheme of
the LRA to divide responsibilities between the CCMA and Labour Court
and to prescribe conciliation as the primary
process in resolving
dismissal disputes. (
Sidumo v
Rustenburg Platinum Mines Limited
2007
12 BLLR 1
(CC))
Fourthly,
in
The Member of the Executive Council
for Finance KwaZulu-Natal v
Wentworth Dorkin NO
(2008)
29 ILJ 1707 (LAC) the LAC held that an employee of the State may
review decisions of a disciplinary committee in the Labour
Court.
The review in that case is distinguishable from this case because
there were exceptional circumstances and it was in the
public
interest to grant the review.
Fifthly,
to allow public employees the option to both review and to
conciliate and arbitrate dismissal disputes will discriminate
against private employees, who do not have that option, and against
poor employees, who cannot afford the costs of litigating
in the
Labour Court. (
PSA on behalf of
Haschke v MEC for Agriculture and
Others
,
[2005] ZALC 2
;
2004 8 BLLR 822
(LC)). So Mr
Cassim submitted for the respondents.
Chirwa
provides the answer to the jurisdictional
question in this case. Section 158 (1) (8) of the LRA, which
empowers the Labour
Court to review any decision or act of the State
in its capacity as employer, and section 157 of the LRA must be
construed in
the context of the primary objects of the LRA.
(
Chirwa
per Ngcobo
paragraph 108 to 110) One of the primary objects of the LRA is
to resolve disputes effectively. (Section 3 (a) read with
section 1
(d) (iv) of the LRA)
A
termination of employment that is unlawful is also unfair. When the
reason for the termination is misconduct, the termination
is
dismissal. In this case, the substance of the dispute is the
fairness and lawfulness of the dismissal. The effective
resolution of a dismissal dispute is through conciliation and
arbitration.
Chirwa
confirmed that disputes about procedural unfairness of a dismissal
must be conciliated (
Chirwa
per
Ngcobo, paragraph 108).
When
this matter was enrolled initially as an urgent application, the
Court seized with it doubted its urgency. Consequently,
the parties
agreed to adjourn it for hearing in the ordinary course. If
this matter proceeded as an urgent application,
it would also have
had another defect: There was an alternative remedy, namely,
conciliation and arbitration.
This
Court agrees with Mr Cassim that to allow a review will discriminate
against private employees and the poor who have only
the option of
conciliation and arbitration, either because the law does not accord
them the option to litigate, or because they
cannot afford to
litigate in the Labour Court. An interpretation that avoids
discrimination should be preferred.
Dismissed
employees should also not be allowed to steal an advantage by
launching urgent applications to review decisions to dismiss
and
thereby cut the queue of dismissal cases pending in the Labour
Court. Every dismissed employee suffers a loss of employment
and remuneration in varying degrees of hardship, irrespective of the
job status of the employee.
After
pleadings closed, Ngutshane referred her unfair dismissal for
conciliation and arbitration. The arbitration was scheduled
for 9
September 2008. Ngutshane had it adjourned pending the outcome of
this application. In this application, she sought
a declarator
that her dismissal was unlawful. This relief is limited and
temporary because her attack is only on the procedural
fairness of
the dismissal. If she had submitted to the arbitration, she
would have had final relief two months earlier
on both the
procedural and substantive fairness of the dismissal.
Ngutshane advanced no explanation as to why the arbitration
was not
the most effective form of resolving the dispute.
Accordingly,
the Labour Court has no jurisdiction to review the decision of the
respondents to dismiss Ngutshane. The provisions
of section 158 (1)
(h) may apply in circumstances where the LRA offers no other remedy,
e.g. where employment terminates by operation
of law. However,
it is not for this Court to determine the circumstances when section
158 (1) (h) applies.
Insofar
as the Court may be wrong in declining jurisdiction, it proceeds to
consider the dispute on its merits. Arivia.kom was
investigating
charges of fraud and other irregularities against the employee.
After her suspension the employee wrote to the
Deputy President on
10 April 2008 and to, amongst others, the Minister of Public
Enterprises, Minister Alec Erwin, on 9 May 2008.
In her letter
to the Minister, she stated categorically that she had partnered
with SATAWU to challenge Arivia.kom, that she
was working with
SATAWU to expose corruption within Arivia.kom and that she was not
in favour of State assets being sold.
In
her letter to the Deputy President, she again wrote against the sale
of the shares. Relying on her political history and connectedness,
she urged the Deputy Minister to dissolve the board and replace it
with a new executive that had the blessings of the ANC.
As
the shareholders of Arivia.kom were Eskom and Transnet, the Minister
was politically responsible. Arivia.kom was in the
process of
selling all its shares in accordance with decisions of its
shareholders and the board.
Ngutshane’s
resistance to the sale was in direct conflict with Arivia.kom’s
objectives. Likewise, her partnering with
SATAWU also conflicted
with Arivia.kom’s interests. By invoking her political
associations, Ngutshane obfuscated her role
as an executive with her
role as a political activist. As a bureaucrat, she had to
follow the protocols Arivia.kom prescribed
for all its employees.
Her
conduct and the contents of the two letters contained common cause
facts which founded Arivia.kom’s decision to dismiss
her. By
resorting to these two communications alone, Ngutshane placed
herself in the path of conflict with Arivia.kom. Arivia.kom
was
entitled to form a
prima facie
view that the employment relationship had broken down.
In
circumstances where an employee's misconduct is manifest, common
cause or not in dispute, a less formal process will suffice.
In
those circumstances an employer's invitation to an employee to make
representations is eminently reasonable and fair. In conceiving
the
notion of effective dispute resolution, the LRA does not prescribe a
painstaking process of convening an elaborate disciplinary
hearing
for every dismissal.
In
this instance, an invitation to make representations satisfied the
audi alteram
partem
rule. Ngutshane declined the invitation and cannot therefore
complain about not being heard.
In
the circumstances the application is dismissed with costs.
_________________________
PILLAY
D, J
Judge
of the Labour Court
Date
of Hearing: 06 November 2008
Date
of Judgment: 10 November 2008
Date
of Editing: 26 December 2008
APPEARANCES
For
the Applicant: Adv W Mokare
with Adv P G Seleka
Instructed
by:
Mogaswa Attorneys
For
the Respondent: Adv N A Cassim SC with Adv F A Boda
Instructed
by:
Cliffe Dekker Inc.