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[2009] ZALCCT 11
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Jansen v Minister of Correctional Services of the Republic of South Africa (C627/2007) [2009] ZALCCT 11 (8 September 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C627/2007
In
the matter between:
JOHN
JOSEPH
JANSEN
Applicant
and
THE
MINISTER OF CORRECTIONAL SERVICES
OF
THE REPUBLIC OF SOUTH
AFRICA
Respondent
JUDGMENT
LE
ROUX, AJ
:
1.
The Applicant was employed by the
Department of Correctional Services ("the Department")
until his dismissal in 2007.
He had been so employed for some 34
years.
2.
The Applicant was appointed to the position
of Head of the Admissions Centre at Pollsmoor Prison in 1997. Taking
his mandate from
the Constitution, the provisions of the Correctional
Services Act and policies adopted by the Department itself, he set in
motion
a transformation programme aimed at introducing a human rights
culture within the prison.
3.
It appears that from 1997 until 2002 his
relationship with his superiors and the Department was untroubled.
4.
During 2002 he made a presentation to the
Jali Commission of Enquiry. This Commission of Enquiry was
investigating allegations of
corruption in South African prisons.
Shortly after making this presentation, he received a letter
containing a death threat. The
letter was investigated by the
National Intelligence Agency (NIA). The NIA submitted a report in
which it stated that the death
threats and the allegations of
corruption emanated from employees of the Department who were against
transformation. It also found
that there was a threat to the
Applicant's life and that security measures to take care of the
safety of the Applicant should be
enhanced. He felt that the
Department had not taken sufficient steps to protect him and his
family and that his requests in this
regard were ignored. Whether
sufficient steps were taken to assist and protect him was a matter of
contention during the course
of the trial. I do not need to deal with
this issue here.
5.
Also during this period the Applicant
became aware that allegations of corruption had been made against
him. These were considered
by the Jali Commission and he was
exonerated. The Applicant was nevertheless upset about the way in
which this issue was handled
by the Department. He felt that he
should have been consulted on the issue. This was also denied by the
Department. Once again,
it is unnecessary for me to make a finding on
this issue.
6.
In November 2004 the Applicant was
transferred to the Goodwood Correctional Centre. It was the
Applicant's version that he had been
asked to take a temporary
transfer in order to assist with problems that had arisen there. He
later discovered by chance that he
had been permanently transferred.
As a result his promotion to a post at Pollsmoor Prison had not taken
place. He asserted that
his transfer had taken place without his
knowledge and in a covert manner. Once again, this was denied by the
Department. It pointed
out that this transfer had been the subject of
litigation in which the Applicant had been unsuccessful.
7.
During 2004 the Applicant was placed on
sick leave.
8.
On 3 December 2004 a photograph and an
accompanying article were published in the Cape Argus. The photograph
was of four employees
of the Department, including the Applicant, and
a fourth person conducting a press conference. At this press
conference the formation
of an organisation with the name "Movement
Against Domination of African Minorities" was announced. (During
the trial
the parties used the acronym "MADAM" when
referring to this organisation. It will also be utilised in this
judgment.)
9.
The newspaper report stated that the
Applicant and the other three members of the Department, who all
appeared at the press conference
in the uniform of the Department,
had made statements to the effect that:
9.1
the pressure group, MADAM, had been formed
to oppose "black dominance" in prisons within the Western
Cape;
9.2
their personal experience had shown that
oppression, victimisation and marginalisation were present in the
Department;
9.3
individuals were abusing their positions to
oppress and victimise members of the Department, especially "African
minorities";
9.4
the death of 6 prisoners as a result of two
recent fires at Pollsmoor prison had been connected to a failure to
transform the prison
and that Pollsmoor Prison was a "time
bomb"; and
9.5
the Regional Commissioner should be
removed.
10.
It is evident from the newspaper report,
and especially the evidence of the Applicant, that one facet of the
grievances expressed
at the press conference was that certain
employees who regarded themselves as being of Khoisan origin believed
that they were being
discriminated against because of this fact. The
purpose of the formation of MADAM was to further the rights and
interests of the
Khoisan people – which the Applicant regarded
himself as being part of.
11.
In February 2005 the Applicant met an
official of the Department who had been sent to investigate what had
occurred at the press
conference. A formal submission was made to
this official by MADAM.
12.
During June 2005 the Applicant and the
three other officials were charged with the following disciplinary
offences. I quote them
as set out in the relevant document
"
1, A.3.1
GROSS INSUBORDINATION
You grossly
unsubordinated the Employer [DCS] in that on the 03/12/2004 you
disregarded policy/directives in that you without
permission/authority
appear in media [news papers] with the Employers
corporate wear.
2, A.5.6
Publication/use of unauthorised [tested] information against
the
Department [DCS].
You are alleged to
have transgressed/misconducted the Department in that you Published
untested information that endangers the Safety
of the Department
[DCS]
3, A 2.1
Gross negligence
You
are alleged to have transgressed the above misconduct in that you
Grossly Neglected to consider the possibility of the consequences
that could be dangerous to human life and the Department [DCS]t
".
13.
A disciplinary enquiry was convened and,
after several postponements for various reasons, the Applicant was
found guilty of misconduct
and dismissed. A subsequent internal
appeal lodged by the Applicant was unsuccessful.
14.
The Applicant challenged the fairness of
his dismissal. A dispute was referred to General Public Service
Sectoral Bargaining Council
("the Bargaining Council").
After conciliation failed to settle the dispute the Applicant
timeously referred the dispute
to arbitration. Thereafter, but before
the matter had been set down for arbitration, the Applicant was
advised that his dismissal
was an automatically unfair dismissal in
terms of section 187(1)(f) of the Act. He was therefore advised to
refer the dismissal
dispute to this Court.
15.
Four disputes were then referred to this
Court. One of these disputes, dealing with alleged unlawful
deductions from the Applicant's
salary, was not proceeded with. The
three remaining claims are as follows:
15.1
A claim that the Applicant had been
automatically unfairly dismissed in contravention of the provisions
section 187(1)(f) of the
Labour Relations Act, 66 of 1995 ("the
Act"). The Applicant alleges that he was unfairly discriminated
against on the
grounds of conscience, belief and/or political opinion
as listed in section 187(1)(f) and on the analogous unlisted grounds
of
political or cultural affiliation. He contends that he was
dismissed because he expressed the view, and formed an organisation
that promoted the view, that the Department was not looking after the
interests of inmates and employees and discriminated against
employees on ethnic and/or cultural grounds.
15.2
A claim that his dismissal was
substantively and procedurally unfair. The Applicant alleges that his
dismissal was substantively
unfair because the conduct of which he
was found guilty did not constitute misconduct in terms of the
employer's disciplinary code
"or otherwise". In addition,
the sanction of dismissal was an inappropriate sanction. It is
further alleged that the
Applicant's dismissal was procedurally
unfair for various reasons namely:
15.2.1
that the chairperson of the enquiry lacked
jurisdiction to conduct the enquiry;
15.2.2
that the chairperson had found the
Applicant guilty of conduct for which he had not been charged, took
into account inadmissible
evidence, and relied on a statement made by
the initiator of the hearing during closing argument; and
15.2.3
that the initiator put leading questions to
witnesses and sought to introduce opinion evidence on issues that the
chairperson had
to decide on.
15.3
A claim that his dismissal constituted an
infringement of his constitutional rights to freedom of association,
freedom of expression
and his right to form, join and maintain a
cultural organisation. His right to freedom of association was
infringed in that he
was dismissed for forming, joining and taking
part in the activities of MADAM. His right to freedom of expression
was infringed
because he was dismissed for expressing the views of
MADAM and for expressing certain grievances and concerns regarding
the Department's
treatment of prisoners and employees. His right to
form, join and maintain a cultural organisation was infringed because
he was
dismissed for forming, joining and taking part in the
activities of MADAM, an organisation dedicated to the protection of
cultural
minorities, in particular persons of Khoisan origin.
16.
At the commencement of the trial Adv Nyman,
who appeared on behalf of the Department, raised a point relating to
jurisdiction. She
pointed out that the form referring the dispute to
arbitration completed by the Applicant characterised the dispute as
one relating
to an "ordinary" unfair dismissal dispute. It
did not refer to an automatically unfair dismissal dispute. She
argued
further that the dispute that was conciliated was an unfair
dismissal dispute and not an automatically unfair dismissal dispute.
The Court therefore did not have jurisdiction to consider the
automatically unfair dismissal dispute. I considered this issue and,
on the strength of the decision of the Labour Appeal Court in
NUMSA
v Driveline Technologies (Pty) Ltd & Another
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC) and the reasoning of Zondo JP, I came to the
conclusion that this Court had jurisdiction to consider the dispute.
An unfair
dismissal dispute had been conciliated – irrespective
of the reason proffered for the dismissal.
17.
The jurisdiction to consider the dispute
must, however, be seen in the light of the principle formulated in
Wardlaw v Supreme Moulding (Pty) Ltd
[2007] 6 BLLR 487
(LAC). This Court has
"provisional" jurisdiction to consider, on the evidence
provided, whether or not the reason for
the dismissal is one in
respect of which it has jurisdiction. If the evidence establishes
that this is the case, the Court can
then go on to consider the
dispute on the merits. If, however, at some stage it becomes apparent
to the Court that the dispute
is one over which it does not have
jurisdiction, it must refer the matter to the CCMA or relevant
bargaining council for arbitration
or, with the agreement of the
parties, determine the dispute as an arbitrator. The parties were in
agreement that if I should find
that the dismissal did not constitute
an automatically unfair dismissal, the matter should be referred back
to the bargaining council
for a consideration of the question whether
the dismissal was unfair. It was on this basis that Ms Norton, who
acted for the Applicant,
indicated that she would not lead evidence
on the issue of procedural fairness in this Court.
18.
Unfortunately, what the real reason for the
dismissal was, was the subject of contention and it was not possible
to consider this
issue without hearing all the relevant evidence.
19.
Due to the fact that the dismissal dispute
had originally been referred to arbitration under the auspices of the
Bargaining Council
the referral of the dispute to this Court took
place outside the required time period. Application was made for
condonation of
the late referral. Adv Nyman did not oppose the
granting of condonation. After consideration of the issue I granted
condonation.
Was
the dismissal automatically unfair?
20.
The relevant part of this section 187 reads
as follows:
"
187.
Automatically unfair dismissals.
—
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 5 or, if the reason
for the
dismissal is-
……
.
(f)
that the employer unfairly discriminated against an employee,
directly
or indirectly, on any arbitrary ground, including but not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family
responsibility;
".
21.
The facts set out above, were, unless
otherwise indicated, largely common cause. What is at dispute was the
reason for the dismissal.
The Applicant contends that he was
dismissed because he expressed the view, and formed an organisation
that promoted the view,
that the Department was not looking after the
interests of inmates and employees and discriminated against
employees on ethnic
and/or cultural grounds. He was therefore
dismissed by reason of his conscience, belief and/or political
opinion as specifically
listed in section 187(1)(f) as well as on the
analogous unlisted grounds of political or cultural affiliation.
22.
The Department denies this allegation and
contends that the reason for the dismissal was that the Applicant
committed serious acts
of misconduct during the course of the press
conference.
23.
The decision of the Labour Appeal Court in
SA Chemical Workers Union & Others v
Afrox Ltd
(1999) 20 ILJ 1718 (LAC) sets
out the approach to be adopted by a Court when dealing with this type
of dispute.
"
[32]
The enquiry into the reason for the dismissal is an objective one,
where the employer’s motive for
the dismissal will merely be
one of a number of factors to be considered. This issue (the reason
for the dismissal) is essentially
one of causation and I can see no
reason why the usual twofold approach to causation, applied in other
fields of law, should not
also be utilised here (cf S v Mokgethi and
others 1990 (1) SA 32 (A) at 39D–41A; Minister
of Police v Skosana
1977 (1) SA 31 (A) at 34). The
first step is to determine factual causation: was participation or
support, or intended
participation or support, of the protected
strike a sine qua non (or prerequisite) for the dismissal? Put
another way, would the
dismissal have occurred if there was no
participation or support of the strike? If the answer is yes, then
the dismissal was not
automatically unfair. If the answer is no, that
does not immediately render the dismissal automatically unfair; the
next issue
is one of legal causation, namely whether such
participation or conduct was the “main” or “dominant”,
or
“proximate”, or “most likely” cause of the
dismissal. There are no hard and fast rules to determine the
question
of legal causation (cf S v Mokgethi (supra) at 40). I would
respectfully venture to suggest that the most practical way
of
approaching the issue would be to determine what the most probable
inference is that may be drawn from the established facts
as a cause
of the dismissal, in much the same way as the most probable or
plausible inference is drawn from circumstantial evidence
in civil
cases. It is important to remember that at this stage the fairness of
the dismissal is not yet an issue (see paragraph
[33] below). Only if
this test of legal causation also shows that the most probable cause
for the dismissal was only participation
or support of the protected
strike, can it be said that the dismissal was automatically unfair in
terms of
section
187(1)(a)
. If that probable inference cannot be drawn at this
stage, the enquiry proceeds a step further.
"
24.
See also in this regard the decision in
National Union of Metalworkers of SA &
Others v Dorbyl Ltd & Another
(2007) 28 ILJ 1585 (LAC).
25.
I accept for the purposes of this decision
that the first requirement of factual causation has been met. The
question is what is
the most probable inference that can be drawn
from the evidence led?
26.
At times in his evidence the Applicant
appeared to suggest that the events set out in paragraphs four to six
above namely, his transfer
to Goodwood Correctional Centre, the
alleged failure of the Department to protect him from the threats
made against him and his
family and the way in which the complaint to
the Jali Commission of Enquiry was handled, was evidence that he had
been automatically
unfairly dismissed on the grounds set out above.
However, the evidence shows that at that date MADAM had not yet been
established
and there was no evidence led to show that the Applicant
at that time supported, or had expressed any views or taken any
actions
in support of, the aims and objectives espoused by MADAM.
27.
Ms Norton argued that the inference that an
automatically unfair dismissal took place could be drawn from the
following.
28.
She argued that the Department had failed
to show that the Applicant had contravened any provision of the
Department's disciplinary
code. She cross examined Mr Mketshane, the
applicant's immediate superior at length on the formulation of the
charges, what they
meant and whether they had been contravened. Mr
Mbewe, the chairperson of the enquiry was also questioned on this
issue.
29.
She strenuously pursued the argument that
there was no policy or directive as referred to in the first charge
stating that an employee
could not appear at a press conference or in
the media without authorisation, whether this was done in uniform or
not. There was
therefore no insubordination as mentioned in paragraph
A,3.1 of the Department's disciplinary code on which this charge was
based.
30.
She also argued that the second charge,
based on clause A 5.6 of the Department's disciplinary code, did not
cover the actions of
the Applicant. This clause prohibited the
publication of information. What the Applicant and his colleagues had
done at the press
conference was to publish their own views.
Furthermore, no evidence was led to show that the safety of the
Department had been
endangered in any way.
31.
The third charged was based on clause 2.1
of the Department's disciplinary code which prohibited gross
negligence in the execution
of a member's duties. The Applicant and
his colleagues had not been on duty when they attended the press
conference. There was
also no evidence to show that their actions
would endanger human life.
32.
She also argued that the Department had
failed to prove that, even if it were to be accepted that a
disciplinary offence had been
committed, these actions justified
dismissal. Furthermore, the way in which the charges had been
formulated by selecting the most
serious version of the charges found
in the relevant clauses of the disciplinary code, showed that the
Department was intent on
dismissing the Applicant.
33.
Given the fact that the Department had
failed to show that the Applicant was guilty of the disciplinary
charges brought against
him, the only inference that could be drawn
from all the evidence was that he was dismissed because of his role
in the launching
of MADAM and his associating himself with the views
of MADAM.
34.
A consideration of the evidence given by
the two witnesses called by the department, and especially the
evidence of Mr Mketshane,
shows that they had difficulty in
justifying the way in which the disciplinary charges were formulated
and in showing that the
Applicant was indeed guilty of the charges
brought against him. It must be accepted that the formulation of the
charges left a
lot to be desired. But does this mean that the most
probable inference that can be drawn from the evidence was that the
dominant
or main reason for the dismissal was a reason found in
section 187(1)(f), and in particular those alleged by the Applicant?
35.
Whilst I agree that the witnesses found it
difficult to justify the way in which the charges were formulated,
they were nevertheless
consistent and vehement in their view that the
reason why the Applicant had been disciplined was because he, a
senior manager,
had appeared at a press conference in his
departmental uniform, and had made what they regarded as inaccurate
statements or opinions
critical of the Department. These statements
or opinions could, they felt, have impacted adversely on the
Department and its members
in circumstances where the Applicant had
failed to take up these issues internally with the Department. It is
also evident that
the fact that he committed these acts whilst still
on sick leave was regarded as relevant. On this they remained
steadfast and
believable witnesses despite extensive cross
examination – especially of Mr Mketshane.
36.
In my view, the most probable inference
that can be drawn from the evidence is that the reason for the
dismissal of the Applicant
was not his membership of, or association
with, MADAM, or the views he expressed in support of the aims and
objectives of MADAM,
but rather that the Department genuinely felt
that he had committed a disciplinary offence by appearing at a press
conference in
a departmental uniform (in circumstances where the
Department felt that permission was necessary) and expressed
inaccurate or unacceptable
views regarding the Department that could
have endangered the safety of employees and inmates. In coming to
this decision I have
taken the following statement made by Mr
Mketshane to during the course of his evidence at the disciplinary
enquiry into account:
"
I
must also confirm to say Mr Chairperson the movement that have been
taken by these officials is the movement that undermine not
only the
Department of Correctional Services that but it undermines all
efforts that the Government have put in place to ensure
that the
Government would create a better life for all. That is a kind of
movement that I say would be very difficult for any organisation
to
have trust on such people.
"
37.
The argument was put to him that this
statement indicated that the reason for the disciplinary enquiry was
the Applicant's membership
of and association with MADAM. He
explained that he was referring to the conduct of the Applicant and
the other persons and that
their conduct eroded the trust
relationship. I accept this interpretation especially in the context
of the other evidence he gave,
both in this trial and in the
disciplinary hearing.
38.
I therefore come to the conclusion that the
dismissal of the Applicant was not automatically unfair.
39.
Whether the dismissal, on this evidence was
fair is quite another question. This is a question to be considered
by an arbitrator.
Infringement
of constitutional rights
40.
The Applicant also contended that, in so
far as he was dismissed for making a statement to the press, this
dismissal constituted
an infringement of his Constitutional rights to
freedom of association (section 18 of the Constitution), freedom of
expression
(section16) and of his right to form, join and maintain a
cultural organisation (section 31).
41.
The question which arises is whether this
Court has jurisdiction to enforce these rights. Section157(2) grants
this Court jurisdiction
to adjudicate on the alleged violation of
fundamental rights enshrined in Chapter 2 of the Constitution which
arise from employment
and from labour relations. Clearly, the rights
to freedom of association and to freedom of expression are of great
importance in
the employment sphere. (See, for example
SA
National Defence Union v Minister of Defence & Another
(1999) 20
ILJ
2265 (CC).) The same may not be as evident in respect of the right to
form, join and maintain a cultural organisation. Nevertheless,
I will
accept for the purposes of this matter that these claims fall within
the ambit of section 157(2)
42.
The greater potential problem that the
Applicant faces is whether direct reliance can be placed on the
provisions of the Constitution
in these circumstances.
43.
In this case all the claims that the
Applicant has brought are based on the fact that he was dismissed by
the Department. The challenged
action is that of the Department
acting in its capacity as an employer. In this sense, therefore, the
primary constitutional right
at play is the right to fair labour
practices. In the context of this dispute, the provisions of the
Labour Relations Act give
effect to this right. This Act provides for
protection against unfair dismissal, including the right not be
automatically unfairly
dismissed. The remedy of reinstatement is
available. If an employee is dismissed in circumstances where it is
alleged that his
right to freedom of association has been violated or
his right to form, join and maintain a cultural organisation has been
infringed
he may, in the appropriate circumstances be able to succeed
with a claim based on an allegation of an unfair or an automatically
unfair dismissal. The same applies to an allegation based on the
infringement of freedom of expression. In this case he may also
utilise the provisions of the Protected Disclosure Act, 26 of 2000.
In this case I have found that the Applicant was not automatically
unfairly dismissed. Whether he was unfairly dismissed still has to be
determined. I should add that an employee in this position
may also
have common law contractual rights at his or her disposal – see
Murray
v
Minister of Defence
[2008] ZASCA 44
;
[2008] 6 BLLR 513
(SCA).
44.
In this context the Applicant is not in a
position to rely directly on a Constitutional right. See in this
regard section 8(3) of
the Constitution,
SANDU
v Minister of Defence and Others
[2007]
9 BLLR 785
(CC) and
Booysen v SAPS &
Another
[2008]10 BLLR 928 (LC).
45.
I have found that the reason for the
dismissal was that the Applicant appeared at a press conference in
his uniform and made unfavourable
comments about his employer. On
these facts there has, in any event, been no infringement of the
right to freedom of association
or the right to form, join and
maintain a cultural organisation. In so far as the dismissal was
based on comments made by the Applicant,
an argument may be made that
this constituted a breach of the right to freedom of expression. It
is clear that whether there has
been an infringement of this right
will have to be considered by weighing up the competing rights of the
Department and the Applicant.
This is an issue that will have to be
determined by the arbitrator when considering an unfair dismissal
case.
ORDER
In
the light of the above I find that the dismissal of the Applicant was
not automatically unfair. I also find that the Applicant's
case based
on the alleged infringement of Constitutional rights should also
fail. The matter is stayed and referred back to the
General Public
Service Sectoral Bargaining Council in terms of section 158(2) of the
Act for Arbitration. As indicated above, l
also condoned the late
referral of the dispute.
I
do not think that this is a case where costs should be awarded. The
Applicant raised important and valid issues that required
consideration and the merits of the unfair dismissal case still have
to be determined.
______________________
LE
ROUX AJ
APPEARANCES:
For
the applicant:
Adv M L Norton
instructed by Muller Marias Yekiso
For
the respondent:
Adv R Nyman instructed by State
Attorney
Date
of hearing:
23-25 February 2009
Date
of judgment:
8 September 2009