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[2011] ZALCJHB 22
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Feni v Pan south African Language Board (JS1179/2010) [2011] ZALCJHB 22; (2011) 32 ILJ 2136 (LC) (24 March 2011)
Page
13
of
13
Case
no: JS1179/2010
Reportable and of interest to other
Judges
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN BRAAMFONTEIN)
Case No: JS 1179/2010
In the matter between:
ZIXOLISILE FENI
….....................................................................................
APPLICANT
and
PAN SOUTH AFRICAN LANGUAGE BOARD
…...................................
RESPONDENT
JUDGMENT
AC BASSON, J
This (unopposed) application was
dismissed on 2 March 2011. Here are my brief reasons for my order.
This was an application in terms of
which the applicant (Mr. Feni) applied for an order in the following
terms:
“
1. Condonation of the late
filing of this application;
2. That the disclosures made by
Applicant against Mr. Swepu and the Respondent are protected
disclosures in terms of the provisions
of the Protected Disclosures
Act 26 of 2000 (the Act);
3. That the disciplinary
proceedings undertaken by the Respondent against Applicant
constitutes occupational detriment and is in
contravention of section
3 of the Act and are declared unlawful and invalid;
4. Declaring the disciplinary
enquiry held by the Respondent against Applicant on 15 June 2010 null
and void;
5. Declaring the recommendation of
the disciplinary enquiry to be invalid;
6. Declaring the dismissal of the
Applicant by the Respondent invalid;
7. That the Respondent is directed
and ordered to immediately reinstate Applicant to his position with
thee same terms and conditions
as before, restore all benefits and
privileges and pay his arrear salary from the date of dismissal with
15,5% interest;
8. That the Respondent is ordered
to pay the costs of this application;
9. Further and/or alternative
relief.”
Before I turn to the merits of the
application it should be pointed out that the applicant has already
been dismissed at the time
of this application hence the prayer that
this Court must declare the dismissal of the applicant “invalid”
and order
his reinstatement. In fact, it appears from the
applicant’s founding affidavit that the applicant was
dismissed as far
back as 17 June 2010.
Mr Malema on behalf of the applicant
confirmed to this Court that no dispute concerning an unfair
dismissal has been referred
to the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”). It does,
however, appear from the papers
that the applicant had referred a
dispute about his unfair suspension to the CCMA on 4 June 2010.
However, as already pointed
out, no dispute about an unfair
dismissal was referred to the CCMA.
Ad jurisdiction
I raised the issue of jurisdiction
with counsel for the applicant and pointed out to Mr. Malema that
this Court does not have
jurisdiction to adjudicate an unfair
dismissal dispute without the dispute first having been referred to
conciliation and without
a certificate of non-resolution first
having been issued by the CCMA. Mr. Malema, however, insisted that
this Court does have
jurisdiction to grant the relief sought in the
Notice of Motion. He argued that the Court’s powers derive
from the provisions
of the Protected Disclosures Act 26 of 2000
(hereinafter referred to as “the PDA”) and that the
Court has the necessary
jurisdiction to grant the relief despite the
fact that the matter has not been referred to conciliation. In this
regard it was
argued that this Court may in terms of section 4 of
the PDA declare that the disciplinary proceedings constitute an
occupational
determinant in contravention with section 3 of the PDA
and that this Court may consequently declare the disciplinary
enquiry
to be “null and void” and declare that the
dismissal of the applicant was “invalid”. As already
pointed
out the applicant is seeking his immediate reinstatement
coupled with an order that his arrear salary be paid with 15.5%
interest.
Brief background
The applicant (Mr. Feni) was employed
as the Head of Legal Services on 2 July 2008. He was also appointed
as a member of the Executive
Management of the respondent.
On 20 February 2009 the applicant was
suspended on allegations of financial misconduct. I do not intend
repeating all the events
that transpired after the applicant’s
suspension. Suffice to point that the applicant continued to be part
of the Executive
Management of the respondent even after his
suspension. During discussions at this level the applicant and a
certain Mr. Swepu
had various discussions about work related issues.
It is clear from the applicant’s papers that the applicant and
Swepu
had various and serious disagreements over the running of the
respondent. In the papers the applicant also accuses Swepu of
financial
mismanagement.
The applicant decided to “blow
a whistle on Swepu” to the Board of the respondent and to the
Minster of Arts and Culture
regarding his (the applicant’s)
suspicion that Swepu did not complete his degree at the University
of the Western Cape
and that he was misusing the financial resources
of the respondent. The allegations were investigated by the
respondent. Prof
Ngubane (chairperson of the respondent) addressed
the staff and informed them that the allegations were unfounded. It
appears
from the papers that, after these allegations, the
relationship between the applicant and Swepu deteriorated even more.
The applicant
again made a report to Prof Ngubane and advised him
“about the incorrect manner in which they dealt with the
investigation
of Mr. Swepu”. The applicant also informed Prof
Ngubane about how the board has been misled into approving an acting
allowance
for Swepu whereas he did not qualify for it. When Prof
Ngubane failed to meet with the applicant to discuss these issues,
the
applicant wrote a letter to the chairperson of the Audit
Committee and complained about Prof Ngubane’s failure to deal
with the issues. The applicant also wrote to the chairperson of the
Standing Committee on Public Accounts. After this letter Prof.
Ngubane referred the matters raised by the applicant for
investigation by internal auditors.
On 13 May 2010 the applicant was
served with a notice of suspension. As already pointed out, the
dispute in respect of the unfair
suspension was referred to the
CCMA.
On 18 May 2010 the applicant was
served with a notice to appear before a disciplinary enquiry.
Although the charges do not specifically
refer to the disclosures
made by the applicant, the applicant alleges that all the charges
relate to the disclosure that he had
made. Charge 1 relates to the
making of false statements prejudicial to the acting CEO of the
Board. Charge 2 relates to the
making of statements prejudicial to
the PANSALB Board. Charge 3 relates to the misappropriation and
improper use of company property
and charge 4 relates to
insubordination in that the applicant had refused to comply with
instructions and directives issued by
the PANSALB Board to desist
from persistently and continually raising the allegations concerning
the acting CEO’s qualifications.
On 17 June 2010 the applicant was
served with an outcome of the disciplinary hearing recommending his
dismissal.
In brief it is the applicant’s
case that he was disciplined after he had made certain disclosures
against Swepu and that
this constitutes an occupational detriment in
terms of the PDA. The applicant submitted that this Court should
declare the disciplinary
proceedings “unlawful ab initio”
in that they are “in violation of the provision of section 3
of the Act”
and order his reinstatement.
Jurisdiction
I have already indicated that I have
dismissed the application. The application was dismissed on the
basis that this Court does
not have the necessary jurisdiction to
entertain the matter:
(i) The applicant has been dismissed
months ago. Firstly, the applicant approached this court on motion
whereas it should have done
so by means of a referral of a statement
of claim. Secondly, no dispute about the fairness of the dismissal
was referred to the
CCMA for conciliation. Consequently, no
certificate of non-resolution in respect of the dismissal dispute has
been issued. This
Court’s jurisdiction to deal with
automatically unfair dismissal disputes is dependent upon a
certificate of non-resolution
of a dispute referred to conciliation.
I will return to this point hereinbelow.
(ii) This Court does not have the
jurisdiction to grant the orders sought (in terms of the Notice of
Motion) in terms of section
4 of the PDA. I will return to this point
in more detail hereinbelow.
The Protected Disclosure Act 26
of 2000
It is accepted that the purpose of
the PDA is to protect whistleblowers against suffering of an
occupational detriment (which
includes, but not limited to,
dismissal, being subjected to a disciplinary hearing or suspension)
1
when making a “
protected
disclosure
”
as
defined in the PDA. This much is also clear from the pre-amble of
the PDA wherein it is specifically stated that the purpose
of this
Act is to
“
create a
culture which will facilitate the disclosure of information by
employees relating to criminal and other irregular conduct
in the
workplace in a responsible manner by providing comprehensive
statutory guidelines for the disclosure of such information
and
protection against any reprisals as a result of such disclosures”.
Section 4 of the PDA sets out the
remedies available to an employee in the event an employee is
subjected or may be subjected
to an occupational detriment. This
section reads as follows:
“
4 Remedies
(1) Any employee who has been
subjected, is subject or may be subjected, to an occupational
detriment in breach of section 3, may-
(a) approach any court having
jurisdiction, including the Labour Court established by section 151
of the Labour Relations Act, 1995
(Act 66 of 1995), for appropriate
relief; or
(b) pursue any other process
allowed or prescribed by any law.
(2) For the purposes of the
Labour
Relations Act, 1995
, including the consideration of any matter
emanating from this Act by the Labour Court-
(a) any dismissal in breach of
section 3 is deemed to be an automatically unfair dismissal as
contemplated in section 187 of that
Act, and the dispute about such a
dismissal must follow the procedure set out in Chapter VIII of that
Act; and
(b) any other occupational
detriment in breach of section 3 is deemed to be an unfair labour
practice as contemplated in Part B
of Schedule 7 to that Act, and the
dispute about such an unfair labour practice must follow the
procedure set out in that Part:
Provided that if the matter fails to
be resolved through conciliation, it may be referred to the Labour
Court for adjudication.
(3) Any employee who has made a
protected disclosure and who reasonably believes that he or she may
be adversely affected on account
of having made that disclosure,
must, at his or her request and if reasonably possible or
practicable, be transferred from the
post or position occupied by him
or her at the time of the disclosure to another post or position in
the same division or another
division of his or her employer or,
where the person making the disclosure is employed by an organ of
state, to another organ of
state.
(4) The terms and conditions of
employment of a person transferred in terms of subsection (2) may
not, without his or her written
consent, be less favourable than the
terms and conditions applicable to him or her immediately before his
or her transfer. “
Occupational detriment in terms
of section 1 and 3 of the PDA but short of dismissal
It appears from a reading this
section that two scenarios are envisaged by the legislature. The
first is where an employee is
subjected to an occupational detriment
whilst still in employment. The second is where an employee is
dismissed and the dismissal
amounts to an occupational detriment in
terms of section 1 of the PDA. In respect of the former, section
4(2)(b) of the PDA provides
that any occupational detriment (short
of dismissal) in breach of section 3 of the PDS is deemed to be an
unfair labour practice
as contemplated in Part B of Schedule
7 to the LRA.
2
In terms of section 4(1) of the PDA
an employee who has been subjected or may be subjected to an
occupational detriment may approach
any court (including the Labour
Court) for appropriate relief or pursue any other process allowed or
prescribed by any law. Where
an employee has been subjected to an
occupational detriment (in breach of section 3 of the PDA) other
than dismissal the employee,
such an occupational detriment is, as
already pointed out, deemed to be an
unfair
labour practice
as
contemplated by the LRA. A dispute about an occupational detriment
(short of dismissal) may be referred to the Labour Court
provided
that the matter has been referred to
conciliation and the matter remains unresolved (section 4(2)(b) of
the PDA). This much is
also clear from section 191(13) of the LRA,
3
where it is specifically stated that
the Labour Court has jurisdiction to
adjudicate
a dispute about a occupational
detriment (which is deemed to be an unfair labour practice) referred
to it but
provided
that the dispute was first referred
to conciliation in terms of the LRA and
provided
that the CCMA has issued a
certificate of non-resolution of the dispute.
4
Urgent application in terms of
section 191(13) of the LRA
Section 191(13) of the LRA also
envisages the situation where an employee approaches the Labour
Court on an urgent basis on the
ground that he has been subjected or
is about to be subjected to an occupational detriment (which is
deemed to be an unfair labour
practice). An employee who, for
example, is about to be subjected to a disciplinary hearing
(provided that it amounts an occupational
detriment in terms of the
PDA) may therefore approach the Labour Court on an urgent basis for
an order to prevent or stay a disciplinary
hearing. The Labour Court
will, however, only issue an
interim
order
pending the final
resolution of the dispute to be referred to conciliation. As already
pointed out, the Labour Court will only
grant an interim order
because it can only adjudicate the dispute once a certificate of
non-resolution has been issued by the
CCMA. (See
Grieve
v Denel (Pty) Ltd
(2003)
24 ILJ 551 (LC).
5
)
Dismissal in breach of 3 of the
PDA
Section 4(2)(a) of the PDA expressly
states that a dismissal in breach of section 3 of the PDA is deemed
to be an
automatically unfair dismissal
as contemplated in
section 187 of the LRA. Section 4(2)(a) further expressly states
that the dispute about such a dismissal must
follow the procedure as
set out in Chapter VIII of the LRA.
The PDA is in my view clear. If the
employee has been dismissed and the dismissal is alleged to have
amounted to an occupational
detriment in terms of section 3 of the
PDA, the employee must, in terms of section 191(1) of the LRA, first
refer a dispute to
the CCMA for conciliation. A dismissal in
contravention of the PDA on account of an employee having made a
protected disclosure
as defined in the PDA constitutes an
automatically unfair dismissal in terms of section 187(1)(h) of the
LRA. Once a certificate
of non-resolution has been issued, the
employee may refer the dispute about his or her automatically unfair
dismissal to the
Labour Court for adjudication in terms of section
191(5)(b)(i) of the LRA.
Furthermore, an employee, who has
allegedly been dismissed automatically unfairly, cannot approach
this Court on motion proceedings
and claim reinstatement. The
dispute
must
be referred to this Court by way of a statement
of claim which complies with the requirements as set out in Rule 6
of the Rules
of the Labour Court. Footnote 1 of the said Rules
specifically states which disputes must be referred to the Labour
Court in
terms of a statement of claim and specifically includes
disputes about an automatically unfair dismissal. Apart from the
fact
that the dispute in this case has not been referred to
conciliation, it is also not competent in terms of the Rules of this
Court
for the applicant to have approach this Court on motion.
Secondly, I have already pointed out that a certificate of
non-resolution
is a jurisdictional requirement. It is for this
reason that this Court refused to refer the matter to the trail roll
when Mr.
Malema requested the Court to do so.
In light of the aforegoing, the
application is dismissed. As the matter is unopposed I make no order
as to costs.
AC Basson, J
Date of proceedings and date of order:
2 March 2011.
Date of reasons: 24 March 2011
Appearances:
On behalf of the applicant
:
Adv VMJ Malema instructed by Makhafola
and Verster Attorneys
1
An
“occupational detriment” is defined in relation to the
working environment of an employee, as: “
(a) being
subjected to any disciplinary action; (b) being dismissed,
suspended, demoted, harassed or intimidated; (c) being transferred
against his or her will; (d) being refused transfer or promotion;
(e) being subjected to a term or condition of employment or
retirement which is altered or kept altered to his or her
disadvantage; (f) being refused a reference, or being provided with
an adverse reference, from his or her employer; (g) being denied
appointment to any employment, profession or office; (h) being
threatened with any of the actions referred to paragraphs (a) to (g)
above; or (i) being otherwise adversely affected in respect
of his
or her employment, profession or office, including employment
opportunities and work security.”
2
See
footnote 1 for a list of the different types of occupational
detriments.
3
Section
191(1)(a) reads as follows: “
An employee may refer a
dispute concerning an alleged unfair labour practice to the Labour
Court for adjudication if the employee
has alleged that the employee
has been subjected to an occupational detriment by the employer in
contravention of
section 3
of the
Protected Disclosures Act, 2000
,
for having made a protected disclosure defined in that Act. (b) A
referral in terms of paragraph (a) is deemed to be made in
terms of
subsection (5)(b).”
4
This
was confirmed by the Court in
Tshishonga v Minister of Justice &
Constitutional Development & Another
(2006) 27
ILJ
1541 (LC) where the Court held as follows: “
[15] However,
subsection (13) of s 191 permits an employee to approach the Labour
Court directly for adjudication in a situation
such as the present
where the employee alleges that he has been subjected to an
occupational detriment by the employer in contravention
of s 3 of
the PDA for having made a protected disclosure.
This is to
be read with s 4 of the latter Act which provides that an
occupational detriment short of dismissal is deemed to be
an unfair
labour practice and that any disputes in relation thereto must
follow the procedure set out in the
Labour Relations Act and
may be
referred to the Labour Court for adjudication.
See also
s
186(2)(b)
of the LRA. Adjudication in this regard would proceed in
the same way as adjudication of inter alia an automatically unfair
dismissal
or retrenchment in terms of
s 187
read with
s 191(5)(b)
of
the LRA and it would be a trial de novo. “
(Court’s
emphasis.)
5
The
Court held as follows: “
[9] The powers conferred upon this
court are expressed in wide terms so that any employee who has been
subjected, is subject or
may be subjected to an occupational
detriment in breach of
s 3
may approach the Labour Court for
appropriate relief. Since conciliation is a prerequisite before this
court can grant final
relief, in matters of urgency where the
occupational detriment will occur unless the employer is interdicted
and restrained,
'appropriate relief' must therefore include the
power to grant an interim interdict pending the resolution of the
underlying
dispute. The court only has jurisdiction to determine the
underlying dispute once the conciliation process has run its course.
This is nonetheless the type of case where the court clearly has the
power to order the status quo to be preserved or restored
pending
determination of the main dispute.”