About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 39
|
|
Distamai v Gauteng Shared Services Centre (JS746/06) [2009] ZALCJHB 39 (29 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JS746/06
In
the matter between:
TITUS
SELLO DITSAMAI
APPLICANT
AND
GAUTENG
SHARED SERVICES
CENTRE
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This matter concerns the determination of a
point in limine
raised by the Respondent against the alleged automatically unfair
dismissal claim lodged by the Applicant. The point in limine
raised
by the Respondent is based on
res
judicata
.
Background
[2]
The background facts are fairly common
cause. The applicant was after responding to a newspaper advert
called for an interview on
the 30
th
April 2004 for the post of the Forensic Auditor, Level 8 by the
respondent. The Applicant was pursuant to the interview offered
a
limited duration contract of employment as “temporary Junior
Forensic Audit”. The contract of employment was on the
month to
month basis for a maximum of six months.
[3]
The two other people who responded to the
advertisement were, Mrs Mirash Suklal (Suklal) and Andries Dippenaar
(Dippenaar). They
were respectively appointed, Senior Forensic Audit:
Internal Audit Level 11 and Senior Forensic Supervisor Level 12.
[4]
Subsequent to commencement of his
employment, the applicant discovered that Dippenaar and Suklal were
appointed as permanent employees.
And when he came to know that the
two other employees who applied at the same time with him were
appointed on a permanent basis,
the applicant lodged a grievance on
the 22
nd
July 2004. In his grievance the applicant demanded that he be
appointed on a permanent basis. The applicant was dismissed on the
same day that he lodged his grievance, the 22
nd
July 2004. He thereafter referred an alleged unfair dismissal dispute
to the CCMA. The CCMA found the dismissal to have been unfair
and
ordered the respondent to pay compensation.
[5]
After accepting the payment and on the 22
nd
September 2006 the applicant referred another dispute to the CCMA
alleging that it arose on the 22
nd
of July 2004 the date when he was dismissed. Conciliation having
failed the CCMA issued a certificate on the 31
st
October 2006. And subsequent to the issuance of the certificate of
outcome by the CCMA the applicant lodged the claim with this
Court on
the 14
th
November 2006. The applicant’s claim is based on section 10 of
the Employment Equity Act 55 of 1998 (EEA).
Legal principles
[6]
It is trite that a matter is
res
judicata
when a decision was given
involving:
(a) the same subject
matter; (b) based on the same grounds; and (c) involving the same
parties. See
Herbstein and Winsen, The Civil Practice of the
Supreme Court of South Africa, 4
th
Edition
at page 249.
[7]
This Court in
Dial
Tech CC v Hudson and Another (2007) 28 ILJ 1237 (LC),
was
faced with having to resolve the question whether the employee who
successfully obtained compensation for constructive dismissal
based
on the allegations of sexual harassment was entitled to later claim
compensation for sexual harassment. The Court held that:
“
[63]
Whilst the cause of action in both the constructive dismissal and the
sexual harassment cases may arise in the same facts and
circumstances, the remedies are located in different statutes. The
remedies for constructive dismissal and unfair discrimination
are
found in the LRA and the EEA respectively.
[64] In
terms of the constructive dismissal, the matter is firstly, before
reaching arbitration or adjudication, processed
through conciliation
in terms of section 135 of the LRA. If conciliation failed the
employee is entitled to refer the matter to
arbitration under the
auspices of the CCMA or a bargaining council whichever is applicable.
However, dismissal disputes, referred
to conciliation in terms of
section 187 of the LRA, are adjudicated by the Labour Court if
conciliation fails.
[65]
Claims for constructive dismissal are governed by the provisions of
186 of the LRA, the relevant part of which
reads as follows:
“
(1)
dismissal means that-
…
an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerably
for the
employee.”
[66]
Section 194(1) deals with compensation to be awarded in cases
concerning dismissal, including constructive dismissal.
The maximum
that a commissioner may award may not be more than the equivalent of
12 months’ remuneration calculated at the
rate of the
employees’ salary on the date of the dismissal.
[67] On
the other hand unfair discrimination is prohibited by the provisions
of the EEA. Section 10(1) of the EEA reads
as follows:
1. In the
section the word “dispute” excludes a dispute about an
unfair dismissal, which must be referred
to the appropriate body for
conciliation and arbitration or adjudication in terms of Chapter VIII
of the Labour Relations Act.
2. Any party to a
dispute concerning this Chapter may refer a dispute in writing to the
CCMA within six (6) months after the act
or omissions that allegedly
constitute unfair discrimination.”
[8]
The Court went further, in drawing the
distinction between the LRA and EEA and in demonstrating that same
facts could give rise
to different causes of action to say:
“
[68]
The Labour Court is empowered by s50 of the EEA to order payment of
compensation by the employer to the employee if it finds
that the
employee was discriminated against by the employer.
[69]
Similarly, discrimination disputes are processed in the first
instance, through the conciliation process in the
CCMA or bargaining
councils and upon failure of conciliation an employee is entitled to
refer the matter to the Labour Court which
has exclusive jurisdiction
to adjudicate discrimination cases. The CCMA or bargaining councils
do not have jurisdiction to adjudicate
discrimination disputes unless
both parties consent to arbitration under their auspices.
[70]
In the present case the constructive dismissal arose out of the
failure by the applicant to correct the intolerable
environment that
was created by its manager. Having found the employee to have been
unfairly dismissed, the Commissioner, in exercising
the discretion
given to him by section 194(1) awarded the maximum compensation of 12
(twelve) months to the employee.
[71]
On the other hand, the dispute concerning unfair discrimination arose
out of the failure by the applicant to take
reasonable steps to
prevent sexual harassment in the form of pornography appearing on the
employee’s computer. It was on
the basis of the conclusion that
the employee was discriminated upon that the court ordered the
applicant to pay compensation in
the amount of R58 080-00 to the
employee.”
[9]
Mr Boda for the respondent accepted as
correct the distinction between the unfair dismissal disputes and
those related to unfair
discrimination. However, he argued that the
approach adopted in the
Hudson’s
case will encourage duplication of claims which in principle was
discourage in
Chirwa v Transnet Limited
and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC),
and
for that reason this Court needed to reconsider its view and conclude
that that decision
(Hudson)
was made in error.
[10]
The respondent further argued in the
replying heads of argument that the reliance by the applicant that
the first case of dismissal
was based on the LRA whereas the present
is based on the EEA, was simplistic and ignored the development of
the doctrine of issue
estoppel and the equitable nature of the
defence which allows for flexibility in its application. The true
nature of the dispute
should according to the respondent be taken
into account in considering whether or not the cause of action is
based on the same
set of facts.
[11]
The respondent relied in support of the
above argument on the case of
Kommissaris
Van Binnelandse Inkomste v Absa Bank Bpk
1995 (1) SA 653(A)
,
where the Court held that the success or failure of the
res
judicata
defence ultimately depends on
principles and considerations of equity and that it is flexible in
its application. The Court in
that case further held that the plea of
res judicata
is available not only when the cause of action is the same but also
where, even if it appears that the cause of action is different,
the
earlier proceedings involved a judicial determination on the same
facts or issues or for that matter the same relief.
[12]
The same approach was according to the
respondent followed in
Fidelity Guards
Holdings (Pty) Ltd v PPWU and Others
[2008] ZALC 85
;
(1998) 10 BLLR 995
(LAC),
where it was held that the applicant for an interdict against the
strike cannot launch a new application based on different facts
that
existed at the time of the initial application. The Court therefore
held that the plea of
res judicata
should succeed and applied it in a flexible manner.
[13]
The other argument of the respondent which
seems to be based on the “once and for all principle” is
that litigators
should not be allowed to utilise different pieces of
legislation. Allowing litigants to forum shop through the use of
different
litigation would according to the respondent be contrary to
the principle in
Chirwa
which was that the courts should be vigilant and guard against forum
shopping.
[14]
On the facts of this matter, the respondent
argued that the true and substantial cause of action of the applicant
is a dismissal
dispute. The applicant’s grievance and dismissal
happened on the same day being the 22
nd
July 2004. The remedy available to him was to challenge his dismissal
at either this Court or at the CCMA. He chose the CCMA and
exhausted
his remedies. The EEA finds no application if one examined the true
nature of the dispute, Mr Boda argued. The applicant
had an election
to make and elected in this regard to go to the CCMA and therefore
the applicant can not now be permitted to formulate
another claim on
the same facts when he has made an election. In the CCMA the
applicant demanded compensation which he received.
The CCMA dealt
with the re-instatement, re-employment and compensation claims as
they were all available at the time to pursue.
The arbitrator
rejected the re-instatement claim and by implication the claim for
re-employment. His award is final and binding.
[15]
I am not persuaded by the above argument of
the respondent and in my view the facts and the circumstances the
respondent sought
to rely on are distinguishable from the present
case. I maintain that the view expressed in the
Hudson’s
case
was the correct one. This view is
reinforced by the approach adopted by other overseas jurisdictions
whose legislative framework
and structure is similar to ours.
[16]
Whilst the Australian decisions are not
binding on this Court, they are valuable and of great assistance in
the consideration of
the correct approach to adopt in matters of this
nature. I find the Australian approach, which was adopted by the
Court of Appeal
in that jurisdiction to be very instructive. The
Court of Appeal in the Supreme Court of the New South Wales dealt
with this issue
in the case of
Pradeep
Deva v University of the Western Sydney
(2008) NSWCA 137
.
[17]
The facts in the
Pradeep
Deva’s
matter are very similar to
those of the current case. In that case the employee who was
dismissed during February 2005, referred
his dispute to the
Australian Industrial Relations Commission (the AIRC) in terms of
section 170 CE (1)(a) of the Workplace Relations
Act of 1996 (the
WRA). The employee sought the relief on the ground that the dismissal
was “
harsh, unjust or
unreasonable.”
This claim was
dismissed on 22 June 2005 by the Commissioner of the AIRC. During
August 2005, the employee lodged a complaint with
the
Anti-Discrimination Board (the ADB) in terms of section 8(2)(c) of
the Anti-Discrimination Act of 1977 (ADA). The complaint
was based on
the ground that the employer had discriminated against the employee
in dismissing him for reasons related to his race.
[18]
The President of the ADB declined the
complaint in terms of section 92(1)(a)(v) of the ADA. The employee
then requested the President
to refer the complaint to the
Administrative Decision Tribunal (the Tribunal). However, Deputy
President refused to have the matter
referred to the Tribunal on the
ground that the subject matter of the complaint had been dealt with
by the AIRC and that public
policy considerations militated against
the employee being given another opportunity to seek relief for his
dismissal.
[19]
The employee, then took the matter on
review. The Court dismissed the review. The Court found that the
review of the decision of
the Deputy President was untenable in that
there was no real question in law to be determined.
[20]
Before dealing with the decision of the
Court of Appeal, I need to briefly indicate that section 170CE of the
WRA entitles an employee
to challenge his or her dismissal on amongst
other grounds, that it was harsh, unjust or unreasonable. And section
170CK (2) prohibits
discrimination against another person on various
grounds including that of race.
[21]
Turning to the decision of the Appeal
Court, the employee’s appeal was upheld and the matter was
remitted back to the Court
aquo. The Court in arriving at its
decision drew a distinction between unfair and unlawful dismissal. On
the facts the Court found
that the employee’s application to
the AIRC was that he had been unfairly dismissed in that the
dismissal was “
harsh, unjust and
unreasonable.”
The subject matter
in that instance related to the unfair dismissal as opposed to
unlawful dismissal, applicable in the case of
discrimination. In this
respect when dealing with the decision of the Commissioner the Appeal
Court, per Tobias JJA had this to
say:
“
[24]
It is apparent from the Commissioner’s decision … that
the hearing before the AIRC was deliberately confined to
the ground
that the respondent’s termination of the appellant’s
employment on the ground of his unsatisfactory work
performance was
harsh, unjust or unreasonable and that no reliance was place upon any
alleged contravention of s170 CK(2)(f) to
the effect that the
termination was carried out by reason of the appellant’s race.”
[22]
In its conclusion the Court found that
although the complaint was with respect to the termination of the
employee’s employment
by the respondent, that was not its
“
subject matter”
.
The subject matter of the complaint according to the Court was that
the respondent had unlawfully dismissed the employee on the
ground of
race.
[23]
Tobias JJA went further to say:
“
[64]
…
(d)
The appellant’s application to the AIRC was that he had been
unfairly
, as distinct from unlawfully, dismissed in that the
termination of his employment by the respondent was harsh, unjust or
unreasonable;
(e)
The relevant provisions of the WR Act draw a clear distinction
between
unfair
dismissal and unlawful dismissal;
(f)
As the subject matter of the appellant’s complaint to the ADB
was one of unlawful dismissal
and as the subject matter of his
application to the AIRC was
unfair
dismissal, they were not
the same;
(g)
Accordingly, in terms of s 92(1)(a)(v) of the AD Act, the subject
matter of the appellant’s complaint
to the ADB had not been
dealt with by the AIRC (it was not suggested by the respondent that
it should be so dealt with noting that
the subsection does not refer
to a complaint that “could have been” or “should
have been” so dealt with:…”
[24]
In South Africa, the authorities support
the views expressed in the
Hudson’s
case
, and have followed the same
approach as that in
Pradeep Deva’s
matter, that of drawing the distinction
between unfair labour practice and unlawful discrimination. In
Ntsabo
v Real Security CC (2003) 4 ILJ 2341 (LC),
the Court awarded the employee compensation for constructive
dismissal in terms of the provisions of the LRA and damages arising
from the sexual harassment in terms of the provisions of the EEA.
[25]
It is clear from the facts in the present
instance that the arbitration award granted in favour of the
applicant related to the
unfair dismissal in terms of the LRA. The
subject matter of the case before the Court relates to unfair
discrimination in terms
of Section 10 of the EEA.
[26]
It is therefore my opinion that the claim
lodged by the applicant in terms of Section 10 of the EEA is not
res
judicata
and the point
in
limine
raised by the respondent stand
to be dismissed. I see no reason in law and fairness why the costs
should not follow the results.
[27]
In the premises the point
in
limine
raised by the respondent, that
the matter is
res judicata
is dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
23
rd
October 2008
Date
of Judgment :
29
th
January 2009
Appearances
For
the Applicant :
Riki Anderson of Riki Anderson Attorneys
For
the Respondent: Adv FA Boda
Instructed
by :
The State Attorney