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[2011] ZALCJHB 32
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Farhana v Opening Learning Systems Education Trust (JS 347/10) [2011] ZALCJHB 32; [2012] 1 BLLR 48 (LC); 2011 32 ILJ 2128 (LC) (29 April 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Not Reportable
CASE NO: JS 347/10
In the matter between:
CHAND FARHANA
…........................................................................................
Applicant
and
OPEN LEARNING SYSTEMS
EDUCATION TRUST
…................................
Respondent
REASONS FOR ORDER
molahlehi
J
Introduction
This matter came before
court as an application for a default judgement. The initial view
that the court had was that the applicant
had not complied with
directive 12 of the Consolidated Practice directive of 2010 made by
the Judge President of the Labour Court.
(Directive 12) covers only
service done in terms of Rule 4(2). The service in this matter was
done in terms of Rule 5(b) (a)
of the Rules of the Labour Court. It
may be an oversight on drafters of the directive not to include
service by way of registered
post to be covered by directive 12.
In terms of directive 12
in addition to having ruled that the service in this matter was not
covered by directive 12, the court
was then satisfied that proper
service was effected and that the respondent failed to file its
statement of opposition to the
applicant’s statement of case
and accordingly the matter proceeded on basis of application for
default judgement.
In the statement of case
the applicant divides her relief into two parts being A and B. Under
part A, the Applicant claims that
the dismissal for operational
requirements by the respondent was both substantively and
procedurally unfair.
The case of the
Applicant under part “A” is that:
6. The Applicant was
employed by the Respondent on 1 December 1996. At the date of
dismissal the Applicant held the position of
Deputy Director. A
certificate of service by the Respondent to the Applicant issued in
terms of the
Basic Conditions of Employment Act 1997
is attached
hereto marked “FC 1”
7. At the date of
dismissal the Applicant received a monthly salary of R33 766.00 a
13
th
cheque equivalent to her monthly
salary.
8. The Respondent main
business was to provide delivery of foundation phase curriculum
learning programmes and radio receivers to
schools and other
institutions through the public broadcaster SABC. Other services
included ongoing teacher training and support.
This business was not
confined to South Africa and included Africa and Asia. To date the
SABC continue to flight programmes of
the Respondent.
9. The Respondent
relied heavily on donor funding to enable it to conduct business. The
aim of the funding was also to ensure that
the Respondent becomes
self sustainable.
10. On or about 16
November 20009 a Management memo was sent to all staff indicating
that the Royal Netherlands Embassy funding
had ended and that there
was no funding to continue operations. It further indicated that no
salaries would be paid. A copy of
the memorandum is attached marked
“FC2.”
11. On or about 18
November 2009 the Applicant received a certificate of service (FC1)
indicating that her date of termination was
18 November 2009. The
reason advanced by the respondent was as follows: “As open
Learning Systems Education Trust, has been
informed that no more
funding will be forthcoming, we are forced to cease operating. We are
virtually in liquidation, and unable
to make any further salary or
wage payments”. The Applicant was informed that she need not
return to work.
12. The Applicant
referred an unfair dismissal dispute to the CCMA and a certificate of
non resolution was issued on 27 January
2010. A copy of the
certificate is attached hereto
marked
“FC 3”.
In terms of Part B, the
Applicant says that she was victimised and denied salary increment
of 10% when all other staff members
received the same. The
Applicant’s claim in as far as this part of the case is
concerned is set out commencing at paragraph
19-29 of the statement
of case. That part of the statement of case reads as follows:
“
19.
On or about mid 2009, the Applicant was suspended and charged with
various allegations of misconduct. One of the allegations
related to
the Applicant speaking to funders and more specifically the Royal
Netherlands Embassy without any authority.
20. The Applicant was
called to a disciplinary enquiry chaired by an independent
chairperson. The Applicant was found not guilty
at the disciplinary
enquiry.
21. Upon returning to
work, the Applicant was stripped of all her responsibilities.
22. The Applicant was
also aware that at that stage the Royal Netherlands Embassy was
conducting an audit on the affairs of the
respondent and had also
been interviewed by them.
23. Unbeknown to the
Applicant, staff members had received salary increment.
24. A copy of an
e-mail received by the Applicant from one of the staff on or about 1
October 2009 alerted the Applicant that staff
had received increments
even though the Applicant was not responsible for authorising or
discussing increment. A copy of the e-mail
is attached hereto marked
“FC 6”.
25. Staff received a
salary increment of 10%.
26. The Applicant did
not receive a salary increment.
27. The Applicant
contends that the reason she was not given a salary increment was as
a result of discussions she had with the
Royal Netherlands Embassy
and therefore victimised.
28. At her
disciplinary enquiry, the applicant made an application for legal
representation on the basis of a Protected Disclosure.
The
application was granted.
29. It is the
applicant contention that as a result of her highlighting serious
financial irregularities to the chairperson of the
Board of the
respondent, Mr Moeletsi Mbeki, and to the funders, that she was
charged for misconduct and ultimately
stripped of her
responsibilities and not given any increment.”
In terms of the relief
under claim B the applicant claims 24 months compensation which
amounts to R810 384.00. This means by implication
that the cause of
action is founded under
section 187
(1) (f) of the
Labour Relations
Act 66 of 1995
(“the LRA”), which reads as follows:
“
187.
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.”
After some debates in
respect of the relief sought under B, the court directed that the
applicant should take the witness stand
and testify about this
aspect of the claim. She testified that the Respondent treated her
unfairly after she brought to the attention
of the Chairperson
financial irregularities which were committed by the Chief Executive
Officer.
After making that
disclosure, she was questioned at a meeting about it. She also
testified that she never received the 10% increase.
She stated that
she believes that she was excluded from receiving the salary
increase because of the protected disclosure. The
protected
disclosure concerned certain conduct of the Chief Executive Officer
which included allegations that he allocated himself
certain loans
without proper authorisation.
Evaluation
I deal firstly with
claim A of the applicant. In as far as this claim is concerned, I am
satisfied that the applicant has made
out a case that she was
dismissed for operational reasons and the validity of that reason is
questionable. She has accordingly
in this respect discharged her
duty of showing that there was a dismissal and that the reason for
such dismissal was related
to operational reasons.
In terms of
s 192
of the
LRA, the onus is firstly on the employee to establish existence of a
dismissal. As indicated in this matter earlier, the
applicant has
indeed discharged that duty.
Section 192
(2) requires
the employer to prove that the dismissal was fair. The employer in
the present instance, having failed to challenge
the averment of the
applicant that she was unfairly dismissed has therefore failed to
discharge its onus under
s 192
(2) of the LRA.
I have no reason to
doubt the version of the applicant that she was unfairly dismissed
and accordingly make the order set out
at the end of this judgment.
I now turn to deal with
part B of the applicant’s claim. As indicated the claim under
this heading falls under the category
of unfair labour practice.
As indicated earlier,
the applicant has prayed for 24 months compensation for the unfair
labour practice as a result of the alleged
victimisation that she
has suffered in the hands of the respondent.
Section 194(4)
of the
LRA provides that compensation awarded to an employee in respect of
an unfair labour practice must be just and equitable
in all
circumstances, but not more than the equivalent of 12 months
remuneration. In terms of
s 194(3)
, the employee successfully made
out case for automatically unfair dismissal and unfair labour
practices would be entitled to
24 months compensation.
The applicant contends
that the respondent committed unfair labour practice by denying her
a salary increment when all other employees
received theirs. The
applicant annexed a copy of an e-mail received from one of the staff
alerting the applicant that staff had
received increments. The
applicant also contends that she was victimised by the respondent in
that she was stripped of her duties
after she had highlighted
financial irregularities to the chairperson of the respondent.
In the case of
Protekon
(Pty) Ltd v CCMA and others
[2005] 7 BLLR 703
(LC)
the court
held that where the employer is bound by contractual obligations to
confer benefits to its employees, then the employee
has an option to
pursue a contractual claim or to allege an unfair labour practice,
such a dispute can be adjudicated by the
Labour Court. However,
where it is the discretion of the employer whether or not to confer
a benefit, and the employer chooses
not to confer such a benefit,
then only the CCMA will have the jurisdiction to adjudicate such a
dispute. The Applicant has elected
to approach the court on the
basis of unfair labour practice and will therefore have to prove
that there has indeed been an unfair
labour practice.
Unfair Labour Practice
Section 23(1) of the
Constitution of the Republic of South Africa Act 108 of 1996(“the
Constitution”) provides that
everyone has the right to fair
labour practices. Unfair Labour Practice concept is defined by s 186
(2) (a) of the LRA as follows:
“
Unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the provision
of benefits to an employee.”
Does non-payment of
salary increase constitute Unfair Labour Practice?
It is important to
consider whether failure to award salary increment is an unfair
labour practice. On the face of it, the employer’s
conduct in
awarding increment to other staff members to the exclusion of the
applicant is arbitrary and inconsistent. However,
looking at each
aspect of the matter separately, it would appear that the employer
did not actually commit an unfair labour practice.
T
o
constitute an unfair labour practice, a salary increase should
amount to a benefit, if it is found that it is not a benefit,
then
the conduct of the respondent cannot be said to be an unfair labour
practice. In
Hospersa v Northern Cape Provincial Administration
(2000) 21 ILJ 1066 (LAC),
the appeal court dismissed the
applicant’s claim on the basis that an allowance to an
employee for acting temporarily in
a more senior position, in the
absence of an agreement to that effect, was a not a right dispute
arising
ex contractu
and
ex lege
and could therefore
not amount to unfair labour practice.
Furthermore,
the case of
Mutual
& Federal Insurance Co Ltd V Maeta & Others (2000) 5 Ltd 10
(LAC),
the court held that salary
increases are interest dispute as there create fresh rights.
What constitutes a
“benefit”?
In terms of section 186
(2) (a), an employer would be guilty of unfair labour practice if
he/she commits any form of unfair conduct
relating to the provision
of benefits to an employee. In the case of
Gaylard v Telkom SA
Ltd(
1998) 19 ILJ 1624 (LC), the court determined that
remuneration, which is defined as any payment in money or kind, or
both money
and in kind made or owing to any person in return for
that person working for any other person, was not a “benefit”.
Furthermore, in the case of
Northern Cape Provincial
Administration v Hambidge NO & others
[1999]7 BLLR 698 (LC),
the court held that while the claim for payment for the additional
responsibilities of acting as matron
of a hospital seemed fair, such
claim could not be said to concern a benefit even if its receipt
would have been beneficial to
the employee. The court went further
to hold that such a claim is a salary or wage issue, and that such
claims are about matters
of mutual interest.
In
Khuzwayo and Somta
Tools (Pty) Ltd (2005)26 ILJ 947 (BCA),
the court held that
benefits should be interpreted as excluding all payments falling
under the broad definition of remuneration.
Furthermore, the case of
Madlongwane v University of Transkei
[2004] 11 BALR 1333 (P),
held that a complaint about not having received an increase when
others have received an increase related
to remuneration and not
benefit.
Salary
increases do not fall within the ambit of benefits. Salary increases
are “economic” demands and the court held
in
Hospersa (supra)
that should such
demands form the basis of an unfair labour practice, then that would
have the effect of undermining collective
bargaining.
Discrimination
In cases involving
allegations of discrimination the duty is on the party making the
allegations to show that there was discrimination.
And whether the
discriminatory practice has impacted on the dignity of the affected
individual,
See
Grogan J
Workplace Law,
10
th
Ed (Juta 2009)
9.
To determine whether there has been
discrimination, regard should be had to
section 6
(1) of the
Employment Equity Act 55 of 1998
which reads as follows:
“
No
person may unfairly discriminate, directly or indirectly, against an
employee in any employment policy or practice, on one or
more grounds
including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin, colour, sexual
orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion culture, language and birth
.”
In
the case of
Harksen
v Lane NO & others
[1997] ZACC 12
;
1998
(1) SA 300
(CC
),
the
court held that where discrimination is based on some other grounds,
the complainant must establish unfairness. Furthermore,
the court in
the case of
Ntali
v SA Breweries
(2001)
22 ILJ 214 (LC), warned against the practice of simply alleging
discrimination on ‘arbitrary’ conduct by the
employer,
without specifying the grounds for that allegations. In the case of
Mothoa
v SA Police Service and others (2007)
28
ILJ 2019 (LC), the court held that where an employee complains about
discrimination on an unlisted ground, he/she must provide
evidence
that the act complained of affected his/her dignity, injured
feelings are insufficient to prove a claim of discrimination.
The
applicant has failed to specify expressly on what ground she had
been discriminated against. She has failed to discharge the
onus of
proving discrimination
.
In the present matter
the applicant has also not been able to show that the respondent had
committed an unfair Labour practice
by failing to give her an
increase. In fact even if she was able to show unfair labour
practice this court would not have had
jurisdiction because unfair
labour practice matters are the responsibility of the CCMA. In any
case, failure to grant a salary
increase dispute is a dispute of
interest and not a right dispute.
The relief sought
under claim B should fail.
In the premises claim
B is dismissed. As concerning claim A the following order is made:
The statement of
case having been duly served on the respondent and the time for
the respondent to file its statement of
opposition having expired
and the respondent having failed to serve and file its opposition
to the statement of case a
judgment by default is made in the
following terms:
The dismissal of the
applicant for operational reasons was both substantially and
procedurally unfair.
The respondent is
ordered to compensate the applicant in the maximum compensation as
ordered in terms of
section 194
of the
Labour Relations Act 66 of
1995
in the amount of R405 192.00 calculated at the salary which
the applicant received as of the date of her dismissal.
The respondent is to
pay the applicant the severance pay in the amount of R93 577.80
calculated at 12 weeks’ salary.
The respondent is to
pay the applicant the salary for the month of November 2009 in the
amount of R33 766.00
The respondent is to
pay the cost of the applicant.
______________________
Molahlehi J
Judge of Labour Court
Of South Africa
Date of Hearing 23
March 2011
Date of reasons for
order: 29 April 2011
Appearances:
For the Applicant:
Farhan Suder from Patelia Cachalia Attorneys
For
the Respondent: Unopposed
9