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[2011] ZALCJHB 163
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City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council (SALGBC) and Others (JR 1676/2009) [2011] ZALCJHB 163 (23 June 2011)
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
CASE NO: JR 1676/2009
In the matter between:
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
.................................
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC)
...........................................................
First
Respondent
M J MOLAPO,
N.O.
.......................................................................................
Second
Respondent
P FOURIE
.........................................................................................................
Third
Respondent
A FOURIE
.......................................................................................................
Fourth
Respondent
JUDGMENT
MYBURGH AJ:
Introduction
This
is an opposed application in terms of section 145 of the LRA
1
for the setting
aside on review of an arbitration award and jurisdictional ruling
issued by the second respondent (‘the
commissioner’)
acting under the auspices of the first respondent (‘the
bargaining council’).
In his
jurisdictional ruling, the commissioner dismissed the point
in
limine
raised by the applicant (‘the municipality’)
at the first stage of the arbitration to the effect that the
bargaining
council lacked jurisdiction to arbitrate the dismissal
dispute because (so it was contended) the third and fourth
respondents
(‘Mr Fourie’ and ‘Mrs Fourie’,
respectively, and ‘the Fouries’ conjunctively) were not
employees
of the municipality and were not dismissed by it. In the
commissioner’s ensuing award on the merits of the dismissal,
which
was issued after the second stage of the arbitration, he
concluded that the dismissal of the Fouries was substantively and
procedurally
unfair, and ordered their retrospective reinstatement.
It stands to be
mentioned at the outset that the municipality does not attack the
commissioner’s award on the merits of
the dismissal for any
reason other than the commissioner’s (alleged erroneous)
assumption of jurisdiction following his
jurisdictional ruling. Mr
Shaba (for the municipality) clarified this in argument before me.
Although
the municipality attacks the commissioner’s assumption of
jurisdiction
inter
alia
on
the basis that it was unreasonable, the review test in relation to
jurisdiction is, of course, correctness. In the result,
if the
reviewing court comes to the conclusion that a commissioner erred in
assuming jurisdiction, then his award falls to be
set aside on
review. This is so because jurisdiction either exists or does not
exist – and cannot be acquired by error
(even an unwitting
one).
2
This
court’s task is thus to determine whether, on an assessment of
the facts and relevant considerations, the commissioner
had
jurisdiction to arbitrate the dismissal dispute. In undertaking this
enquiry, I intend to have regard to the record of both
the first and
second stages of the arbitration, as opposed to confining myself to
the record of the first stage. In this regard,
it warrants mention
that, in deciding whether a commissioner has exceeded his
jurisdiction in making an award, the reviewing
court is not
necessarily confined to the record of the arbitration proceedings
and may admit extrinsic evidence (i.e. evidence
outside of the
record) regarding the true facts.
3
If this is so, then
this court must be entitled to have regard to the record of the
second stage of the arbitration in determining
the true facts,
particularly in circumstances where (as expanded upon below) the
municipality, at the second stage of the arbitration,
chose to
advance in evidence the same case that it had advanced by way of
legal argument at the first stage of the arbitration.
In
circumstances where the municipality took a second bite at the
‘jurisdictional cherry’, this court must be entitled
to
have regard to the facts that emerged in the process in determining
whether the commissioner had jurisdiction. Indeed, Mr
Shaba’s
position in argument before me was that this court would be entitled
to have regard to the transcript of the second
stage of the
arbitration, insofar as it demonstrated that certain of the
submissions made during the first stage of the arbitration
were
incorrect.
Chronology of
events
The Fouries were
employed by the municipality as inspectors within its community
safety department (formerly the Tshwane metro
police division).
With effect from 29
August 2008, the Fouries resigned from the municipality, and would
appear to have sought to emigrate to New
Zealand. Both of the
termination of services forms completed by the Fouries were signed
and accepted by
inter alia
Kris Jooste (acting executive
director: community safety operational administration).
On
18 September 2008, and while in New Zealand, the Fouries sent an
email to Elsabe Burger (who appears to have worked in the
same
division as the Fouries had worked in) at the municipality
requesting the withdrawal and reversal of their resignations.
4
On
18 and 19 September 2008, there was an exchange of emails between
(it seems) members of the HR department in relation to the
Fouries’
request, with different members expressing different sentiments.
More than one member pointed out that there was
no policy regulating
the issue. Significantly, Valerie Steyn (HR – key accounts
specialist) and Anel Fourie
5
were involved in
these early exchanges.
On 19 September
2008, Ms Steyn prepared a written proposal recommending the
withdrawal and cancellation of the Fouries’
resignation, and
that their period of absence should be treated as unpaid leave.
There are two versions of the aforesaid proposal
in the record –
the first provides for signature / approval by Mr Jooste alone,
while the second provides for three levels
of signature / approval,
namely by G van der Merwe (acting director: road policing), then Mr
Jooste, and then Commissioner Mmutle
(strategic executive director:
community safety).
On 22 September
2008, Mr Jooste signed the first version of the proposal /
recommendation. The document included this directly
above Jooste’s
signature: ‘
Approved / not approved
.’ While Mr
Jooste failed to delete the inapplicable option, as the unfolding
chronology confirms, it was accepted by all
concerned that, through
his signature thereof, Jooste approved the proposal / recommendation
(‘the Jooste recommendation’).
Also on 22
September 2008, Pieter Coetzer (an IMATU shop steward) sent an email
to Derik Cronje (HR department), which was copied
to Ms Steyn,
enclosing a copy of the Jooste recommendation. The email records
that Mr Coetzer intended to deliver the original
to Mr Cronje the
following day, and he went on to thank Mr Cronje for his help and
assistance. (It was common cause at the arbitration
that the Fouries
were members of IMATU and that they had enlisted the assistance of
their union to secure the withdrawal of their
resignation.)
On 22 and 23
September 2008, there was an exchange of emails between Martin Steyn
(legal department) and Anel Fourie, with the
former having expressed
the view that if the Fouries’ resignations had been processed,
they could not be withdrawn.
On 25 September
2008, Simon Mabusela (HR department) sent an email to Keorapetse
Tumagole (acting executive director: strategic
human resources
management), being the head of what I have referred to thus far as
the HR department. The email read as follows:
‘
The
above-mentioned employees [i.e. the Fouries] resigned with effect
from 29 August 2008. They sent through a request to cancel
their
resignation on 15/09/2008. Leave pay-out, pro rata bonus and the
retirement fund as well as other 3
rd
parties
have been notified. The Department has requested that they be
reinstated. Your view is urgently requested
.’
The reference
herein to the request of ‘the department’ appears to be a
reference to the Jooste recommendation.
6
On the same day, Mr
Tumagole replied as follows: ‘
If no payment has been
effected, let’s reinstate
.’ On the face of it, Mr
Tumagole, who was clothed with the necessary delegated authority to
reinstate the Fouries (see
further below), so advised in
circumstances where he was aware that ‘the department’
was in favour of the withdrawal
/ cancellation of the Fouries’
resignation.
About an hour
later, Anel Fourie sent the following email to Ms Burger (with whom
the Fouries had initially made contact) and
copied it to
inter
alia
Ms Steyn and Mr Coetzer:
‘
I
have clarified with Martin Steyn that the reinstatement and
cancellation of the resignation of [the Fouries] can take place as
requested and approved by your department. This will only be
supported due to the fact that no monies have yet been paid to them
in terms of any of the funds implicated in terms of their resignation
and that unpaid leave will be captured for the said period.
’
In its terms, the
Fouries’ reinstatement was confirmed in this email. The
significance of it having been copied to Mr Coetzer
(of IMATU) will
become apparent below.
A few hours later,
Mr Steyn responded to this email by recording that he ‘agreed
on the proposition that the Fouries’
resignation was not
finalised and no one was appointed to their current positions’.
This email was also copied to
inter alia
Mr Coetzer and Ms
Steyn.
On 29 September
2008, letters (one in respect of each of the Fouries) emanating from
the corporate and shared services department:
strategic human
resources management division, were addressed to Ms Steyn. The
letters reflected Ben Mokgoko as being the contact
person and the
executive director: strategic human resources management (i.e. Mr
Tumagole) as being the author, but were signed
by Louis van Wyngaard
(HR officer). The letters, which were headed ‘
cancellation
of termination
’, recorded that the ‘
termination
of service of the above-mentioned has been cancelled
’, and
that the period ‘
from 1 September 2008 until 30 September
2008 [is] being noted as normal unpaid leave
’ (‘the
approval letter/s’).
On the face of
these letters, the Fouries’ contracts of employment
had
been
reinstated on the same terms and conditions of employment
as prevailed before their resignation, with the only caveat being
that
their absence during the month of September 2008 would be
treated as unpaid leave. The evidence at the arbitration was that a
copy of the approval letter was given to Mr Fourie by Ms Steyn.
During
the period 29 September to 1 October 2008, a further series of
emails ensued in relation to the withdrawal / cancellation
of the
Fouries’ resignation.
7
The first email was
from Phillip Ratsiane to Messrs Mabusela and Tumagole on 29
September 2008, in which he recorded: ‘
We
have agreed that we are not going to appoint these people because
they have resigned and they have their monies. The request
does not
even have the approval from the SED of the department
.’
8
Further to this, on
1 October 2008, Bonita Dixon sent an email to Michael Leshilo
(copied to Annamarie Marais) which read: ‘
As
I understand it did Mr Tumagole recommend that we reinstate (sic).
And our SED did approve the reinstatement of [the Fouries].
Dir
Jooste was acting as the SED of the department
.’
On the same day, and in response to this, Ms Marais sent an email to
Messrs Jooste and Coetzer stating: ‘
We
are now totally confused. The one day we can reinstate the Fouries,
the other day we may not. The Fouries are starting work
today
.’
On 1 October 2008,
the Fouries resumed working at the municipality (see further below).
On 2 October 2008,
the email string concluded with an email from Ms Burger to various
people, which recorded the following: ‘
Finalised,
reinstatement is in order, approved by General Manager K Tumagole
.’
(As dealt with below, the fact that the issue was finalised was
consistent with the evidence that Mr Fourie gave at the
arbitration
about his dealings with
inter alia
Ms Burger upon his return
to work on 1 October 2008.)
On 9 October 2008,
Mr Tumagole addressed a letter to Mr Van Wyngaard, in which he
sought an explanation from Mr Van Wyngaard as
to ‘
who gave
you authority to sign on my behalf and cancel the termination of
[the Fouries]
’. In evidence, Mr Tumagole stated that he
had not authorised the drafting of the approval letters.
Significantly, it follows
from Mr Tumagole’s letter to Mr Van
Wyngaard that, as of 9 October 2008 (at the latest), Mr Tumagole was
aware that the
Fouries were back at work.
On 10 October 2008,
Mr Tumagole addressed a letter to Mr Jooste and Ms Steyn in the
following terms:
‘
It
has come to my attention that [the Fouries] have been
re-employed
without having followed the correct procedure and obtaining the
necessary authorisation
.
According
to our records the two persons have voluntarily terminated their
contracts of employment on 29 August 2008, and they are
therefore no
longer employees of the [municipality]. The vacancies created by
their departure must be filled in accordance with
the provisions of
the Recruitment, Selection and Placement Policy.
The re-employment
of the two without following the procedure that is laid down in the
said policy is grossly irregular
.
Since
there is no new employment contract concluded between these
individuals and the [municipality], they are not employees
and
are requested to vacate the CoT premises with immediate effect. Both
of you should indicate to [me] as to
who authorised the
re-appointment of these people as that function is delegated to [me]
.
Your
response in writing, within seven ... days is awaited.’
(Emphasis added.)
Also on 10 October
2008, Ms Steyn sent an unequivocal response to Mr Tumagole, in which
she agreed that he had the authority to
reinstate / re-appoint, and
referred to his email of 25 September 2008 and letters from his
office of 29 September 2008 (i.e.
the approval letters) in support
of her contention that Mr Tumagole had personally authorised the
reinstatement of the Fouries.
On 16 October 2008,
Mr Van Wyngaard responded to Mr Tumagole’s letter of 9 October
2008. The response reads in part as follows:
‘
I
did not cancel the termination of services of [the Fouries]. The
intention of this letter, written by Mr Mokgoko, was to notify
the
department that the leave provisions, from 1 September 2008 until 30
September 2008, being noted as normal unpaid leave.
The
cancellation of the termination of service of [the Fouries],
according to Mr Mokgoko, was approved after a report was written
by
the department. Mr Mokgoko informed me that all system and paper work
was done, when he asked me to sign the said letters.’
On 17 October 2008,
the Fouries were served with letters (dated 16 October 2008) from Mr
Tumagole reading as follows:
‘
Please
note that you voluntarily terminated your employment on 29 August
2008 and that there is therefore no longer an employment
contract
between you and the [municipality]. As the request to withdrawal your
resignation came after the termination of your contract
of employment
has taken effect, it is unfortunately not possible to reverse the
resignation and to reappoint you without following
the Selection
Placement and Recruitment Policy.
It
has come to our attention that you have resumed work in the Community
Safety Department
.
You are hereby advised to vacate the premises as you are no longer an
employee of the municipality.
You
are at liberty to apply for any vacancies that might be advertised in
future.’
(Emphasis added.)
On 21 October 2008,
Commissioner Mmutle addressed a letter to Mr Jooste (on the
letterhead of the community safety department)
reading as follows:
‘
Report
seeking approval for the cancellation of the resignations of [the
Fouries] ... was signed by you on 22 September 2008. Despite
the fact
that by this date the employment of the two individuals was already
officially terminated at the end of August 2008, the
aforementioned
report was apparently processed or sent to Corporate and Shared
Services Department without my approval as the head
and accounting
officer of this department.
May
you kindly explain why a report of this nature was sent out without
the approval of the head of department and
who allowed the
two persons to resume work from 1 October 2008
.’
(Emphasis added.)
In his undated
response to Commissioner Mmutle, Mr Jooste recorded
inter alia
as follows:
‘
The
delegation
to appoint (and for that matter reinstatement of) any official lies
with the Corporate and Shared Services Department
.
...
I
made the deduction that re-instatement / non re-instatement is
just
a question of the SED Corporate and Shared Services [i.e. Mr
Tumagole] executing his mandate
in terms of policies and
procedures, and that the Community Safety Department has
unfortunately little say in this matter as a
final decision should be
guided by Council policies and processes.
As
the request was brought to my attention by the employees themselves,
their union representative and the Key Account Specialist,
I
submitted the request for reinstatement to the Corporate and Shared
Services Department as part of a normal administrative process.
According to my understanding the reinstatement was
initially approved by Corporate and Shared Services
, which
allowed the officials to [resume] work.’
(Emphasis added.)
This response
confirms what is an important fact – Mr Tumagole (as he stated
in his letter to Mr Jooste and Ms Steyn on
10 October 2008, and
repeated during the arbitration) had the delegated authority to
reinstate the Fouries. (Mr Jooste (like
Ms Steyn) appears to have
understood him to have made such a decision.)
On 24 October 2008,
the Fouries referred an unfair dismissal dispute to the bargaining
council.
The first stage of the
arbitration and the commissioner’s jurisdictional ruling
On 16 February
2009, the parties conducted a pre-arbitration conference, at which
the municipality notified that it intended raising
this point
in
limine
: ‘
The [municipality] states that there was no
employment relationship between the parties after [the Fouries’]
resignation
and disputes the existence of a dismissal.
’
Presumably in the light of this, the minutes of the pre-arbitration
conference also record that the Fouries would commence
adducing
evidence in support of their case that ‘
they were employees
of the [municipality] and unfairly dismissed
’.
On 17 February
2009, the first stage of the arbitration was conducted. Although it
had been anticipated that evidence would be
led in respect of the
municipality’s point
in limine
, the issue was
ultimately dealt with purely on the basis of legal argument by the
representatives (Mr Geldenhuys for the Fouries
and Mr Tema for the
municipality) with reference to bundles of documents.
On 18 February
2009, the commissioner issued his jurisdictional ruling. In his
‘analysis of submissions’, the commissioner
found as
follows:
‘
The
[municipality] did not dispute that the [Fouries] rendered traffic
inspectorate services until 16 October 2008 on the instruction
of
their superiors in its employ. The duties they performed included the
issuing of traffic fines. The latter forms part of the
[municipality’s] business. The [Fouries] had for the duration
of their stay since their return, assisted the [municipality]
carrying on its business. The fact that they served the
[municipality] and the [municipality] did not review and nullify
their
actions entitled them to remuneration. The [municipality] had
collected revenue in the form of traffic fines which were to date
lawfully issued by the [Fouries].
In
terms of section 200A of the [LRA] … [quotation of section
omitted].
It
is not in dispute that the [Fouries] were provided with tools of work
or equipment by the [municipality] and worked overtime
on the
direction of the [municipality].
Section
200A presumes that any such person is regardless of the form of the
contract, an employee, unless contrary can be shown.
The
[municipality] failed to show the nature of the relationship it had
with the [Fouries] when it provided them with assignments
and work
equipment until 16 October 2008.
I
must concur with the [Fouries] that an employment relationship
existed as at the date of the alleged dispute.
The
[municipality’s] argument that the [Fouries’]
re-engagements were irregular for lack of authority by the person
who
processed the resignation withdrawal and approved same cannot be
sustained. The fact that persons may have acted
ultra vires
in
the process is a matter for a reviewing judge. The [municipality] did
not furnish me with any order form a court rendering the
actions of
its employees invalid and declaring everything that was done in terms
of such lack of authority null and void. The [municipality]
is aware
that the definition of employee in the LRA is silent on the legality
of the contract of employment. There is case law
which points to the
fact that an illegal immigrant who conformed with the definition of
an employee enjoyed the protection of the
LRA despite the fact that
he worked for another without a work permit. My duty is [therefore]
not to enquire and determine the
validity of the contract but merely
to satisfy myself that the parties’ conduct falls within the
meaning of an employee.
What
is before me is that the [municipality] had not only expressly but
also by conduct allowed the [Fouries] to resume their ordinary
duties. The [municipality’s] conduct was an implied approval of
the [Fouries’] request for withdrawal of their resignations.
I
also accept that the notice dated 16 October 2008 falls squarely
within the meaning of dismissal in terms of section 186(1)(a)
of the
[LRA].’
In the result, the
commissioner ruled that the bargaining council had jurisdiction to
arbitrate the alleged unfair dismissal dispute.
The second stage of the
arbitration and the commissioner’s award on the merits of the
dismissal
On 6 and 7 April
2009, the second stage of the arbitration was conducted. The
municipality commenced adducing evidence and called
these witnesses
– Mr Tumagole, Sidney Dreyer (logistics department) and Renier
Lubbe (chief security evaluator). The Fouries
then each gave
evidence, and called Heinrich Spies and Cornel van der Walt (both
metro policeman) in their defence.
Remarkably, despite
the commissioner having already found that the Fouries were
employees of and had been dismissed by the municipality,
the
municipality would appear to have made no attempt during the second
stage of the arbitration to acquit itself of the onus
of
establishing that the Fouries’ dismissal was substantively and
procedurally fair. Instead, through the evidence of its
main
witness, Mr Tumagole, the municipality sought, in effect, to re-run
the case it had run during the first stage of the arbitration.
This
is well illustrated by the concluding paragraph of the
municipality’s written closing argument at the second stage
of
the arbitration:
‘
Based
on the arguments above I request the arbitrator to order that there
was no employer-employee relationship between [the Fouries]
and [the
municipality] after the resignation of [the Fouries].
Further
that the employer did not dismiss the [Fouries] as they allege.’
In his award on the
merits of the dismissal dated 3 May 2009, the commissioner noted
that, although the issue of whether the Fouries
were employees and
were dismissed had been dealt with at the first stage of the
arbitration, the municipality continued to reintroduce
it as its
defence at the second stage of the arbitration. For ‘
the
sake of completeness
’, the commissioner restated the
reasons for his earlier ruling. Turning thereupon to the fairness of
the Fouries’
dismissal, the commissioner found that the
municipality had made no attempt to acquit itself of the onus of
proof resting on
it in this regard, and went on to conclude that the
Fouries’ dismissal was substantively and procedurally unfair.
In the
result, the commissioner ordered the municipality to
retrospectively reinstate the Fouries.
Grounds of review and the
parties’ submissions in relation thereto
The
municipality pleads four grounds of review, namely that: (i) the
commissioner committed an irregularity and / or misconduct
in
finding that the Fouries were employees of the municipality between
1 and 15 October 2008 and subsequently dismissed, in circumstances
where they failed to prove any of the submissions made on their
behalf by their attorney at the first stage of the arbitration;
(ii)
the commissioner’s finding of jurisdiction (premised on the
Fouries having been employees of and dismissed by the
municipality)
was unreasonable; (iii) the commissioner committed an irregularity
and / or misconduct in finding that the Fouries
were reinstated /
re-employed between 1 and 15 October 2008, in circumstances where
‘
none
of the officials of the [municipality] with the requisite authority
to order their reinstatement / re-employment had specifically
communicated such decision to them
’
;
and (iv) the commissioner committed an irregularity and / or
misconduct in finding for the Fouries, in circumstances when they
‘
knew
or were expected to know that their re-appointments or re-acceptance
to the employ of the [municipality] were irregular as
[it] was done
by a person with no authority to do so
’
.
9
In argument before
me, Mr Shaba addressed these five questions: (i) whether the finding
that the Fouries were employees of the
municipality is assailable?
(‘the first question’); (ii) whether the finding that
the Fouries were dismissed is assailable?
(‘the second
question); (iii) whether the jurisdictional ruling is assailable?
(‘the third question’); (iv)
whether the Fouries were
reinstated / re-employed during the period 1 – 15 October 2008
(‘the fourth question’);
and (v) whether the Fouries
knew or ought to have known that their re-appointment by the
municipality (if any) was irregular?
(‘the fifth question’).
In addressing the
first question
, the main thrust of Mr Shaba’s attack in
relation to the commissioner’s finding that the Fouries were
employed by
the municipality at the material time was that (so it
was submitted) there existed no formal underlying contract of
employment
between the parties, and that the municipality had not
communicated an acceptance of the withdrawal of the Fouries’
resignation
to them.
In
developing his argument, Mr Shaba placed reliance on the judgment of
this court in
MEC
for the Department of Health, Eastern Cape v Odendaal & others
[2009] 5 BLLR 470
(LC), in which it was found that ‘
[t]he
contract of employment (although influenced by labour legislation,
collective bargaining and the constitutional imperative
of fair
labour practices) remains the basis of the employment relationship
’
,
and that an employment relationship cannot exist without the
conclusion of a contract of employment.
10
With reference
hereto, Mr Shaba submitted that had the commissioner ‘
not
relied solely on the simplistic approach and literal interpretation
’
of the definition
of ‘employee’ in section 213 of the LRA, and instead had
regard to the absence of the existence
of a contract of employment
between the parties, he would have concluded that there was no
employment relationship between the
parties.
Mr Shaba went on to
submit that, insofar as the Fouries sought to rely on any of the
communications contained in the record to
establish that the
withdrawal of their resignation / reinstatement had been accepted by
the municipality (and thus that a contract
had come into being), all
such communications were internal communications amongst officials
of the municipality, and that none
of them were ever formally and
directly communicated to the Fouries. This included the Jooste
recommendation, Mr Tumagole’s
email of 25 September 2008 to Mr
Mabusela, and the approval letters.
In addition to
this, Mr Shaba contended that, in any event: the Jooste
recommendation had not been signed by the two other persons
reflected in the second version thereof, and, furthermore, Mr Jooste
had not indicated whether he approved / disapproved of the
recommendation; Mr Tumagole’s email of 25 September 2008 was
responded to by Mr Ratsiane on 29 September 2008, which response
excluded any possibility of the Fouries being reinstated; and Mr Van
Wyngaard had since explained his signature of the approval
letters
and had made it clear that they constituted internal correspondence.
In conclusion on
the first question, Mr Shaba submitted that the finding by the
commissioner ‘
sets a bad precedent in employment relations
and may lead to absurdity wherein any person can avail himself /
herself at the work
premises of any employer and claim to be an
employee based on section 213 of the LRA by virtue of having
rendered this or that
service or having been furnished with this or
that work tool regardless of whether or not such a person has any
contract of employment,
was appointed, employed or re-employed in
accordance with the employer’s procedures
… .’
Regarding
the
second
question
,
Mr Shaba submitted that, insofar as there had been no pre-existing
employment relationship between the parties, the Fouries
could not
have been dismissed by the municipality. Again, Mr Shaba relied on
Odendaal
(supra)
,
in which it was held that ‘
[a]n
employee cannot claim to have been dismissed if no employment
relationship existed
’
.
11
Furthermore, Mr
Shaba submitted that Mr Tumagole’s letter of 16 October 2008
did not constitute a letter of dismissal, because
it was written on
the understanding that there existed no employment relationship, and
made reference to the fact that the Fouries
had elected to attend at
the municipality’s premises in the absence of being appointed,
and that it was not possible to
appoint them without following the
recruitment policy. Finally, Mr Shaba placed reliance on ‘
Kylie’
v CCMA & others
[2008] ZALC 86
;
[2008]
9 BLLR 870
(LC), in which it was held that ‘
[i]t
is clear from the definition of dismissal in section 186(1)
12
of the LRA that
the existence or prior existence of a valid contract of employment
is the necessary condition to found the statutory
right to fair
dismissal
’
.
13
According to Mr
Shaba, this principle was not ‘
tampered
with
’
by
the LAC in the ensuing appeal (
‘
Kylie’
v CCMA & others
[2010]
7 BLLR 705
(LAC)). In the light of this, Mr Shaba submitted that, in
the absence of a contract of employment between the parties, the
Fouries
could thus not have been dismissed within the meaning of
section 186(1).
Regarding the
third
question
, Mr Shaba submitted that the commissioner’s
jurisdictional ruling was assailable because the Fouries did not
qualify as
employees (for the reason already submitted), and because
there was no evidence, as opposed to submissions by legal
representatives,
at the first stage of the arbitration upon which
the commissioner could have based his ruling. According to Mr Shaba,
the commissioner
ought to have permitted the adducing of evidence by
witnesses before making his jurisdictional ruling, and ought not to
have
relied simply on submissions by legal representatives, ‘
some
of which turned out to be false when the merits were considered
’.
Turning to the
fourth question
, on the basis of the submissions made in
relation to the first question, Mr Shaba submitted that the Fouries
were not reinstated
/ re-employed during the period 1 – 15
October 2008. Mr Shaba went on to submit as follows: ‘
Other
than the submissions of Mr Geldenhuys [at the first stage of the
arbitration] and allegations (not substantiated by any
document) by
the [Fouries’] witnesses [at the second stage of the
arbitration] that they worked with [the Fouries], for
17 days or so,
there was no shred of evidence that [the Fouries] were issued with
firearms, new appointment cards, that they
issued tickets and fines,
etc as initially alleged and submitted at the [first stage of the
arbitration]
.’
Regarding
the
fifth
question
,
Mr Shaba submitted that, insofar as the Fouries could rely on
internal correspondence that had not been communicated to them,
‘
none
of the writers of any such communications, in particular Jooste and
Van Wyngaard, had the requisite authority to order any
such
re-acceptance or re-appointment [of the Fouries] outside of the
[recruitment policy]
’
.
Mr Shaba went on to submit in this regard that the commissioner
ought to have had regard to the principle held in
POPCRU
v Minister of Correctional Services
[2006]
4 BLLR 385
(E) that ‘
[t]he
effect of an administrative action that is taken without lawful
authority is that it is a nullity
’
.
14
On this basis, Mr
Shaba submitted that there was no need for the municipality to have
obtained an order setting aside any
ultra
vires
actions
(as the commissioner found). Mr Shaba also referred to other
authorities in this regard.
In his response, Mr
Geldenhuys, in effect, embraced the commissioner’s findings.
In summary, he submitted that: in circumstances
where the Fouries
had returned to work and worked, they qualified as employees; once
that was accepted, Mr Tumagole’s letter
of 16 October 2008 was
plainly an act of dismissal; the Fouries reinstatement had been
properly authorised and was valid; and,
in any event, the decision
remained valid until it was set aside on review, with reliance being
placed in this regard on
Oudekraal Estates (Pty) Ltd v City of
Cape Town & others
2004 (6) SA 222
(SCA).
The facts relating to what was
communicated to the Fouries, and what transpired between 1 and 17
October 2008
Before dealing with
the five questions addressed by Mr Shaba in advancing the review
application, there are two key factual issues
that can be
conveniently addressed at this stage. The first issue is what was
communicated by the municipality to the Fouries
in relation to their
reinstatement, bearing in mind that, save for Mr Tumagole’s
letter of 16 October 2008, none of the
written communications
referred to above were addressed directly to the Fouries.
In his evidence,
which appears to have gone unchallenged, Mr Fourie testified as
follows. After about two weeks in New Zealand,
they called Ms Burger
and advised that they wanted to reverse their resignations. On the
advice of Ms Burger, they then sent
Ms Burger their email of 18
September 2008 and notified IMATU. Further hereto, they received a
copy of the Jooste recommendation
and were told by Mr Coetzer (of
IMATU) that all was in order. (Mr Coetzer, it will be recalled, had
been provided with the original
of the Jooste recommendation on 22
September 2008, and had been advised of the reinstatement of the
Fouries in the email from
Anel Fourie on 25 September 2008). They
thereupon returned to South Africa, and would not have done so if
the status of the withdrawal
of their resignation had been
uncertain. Upon their arrival back at the municipality:
‘
...
we went to
Elsabe
Burger
for
advice. She said she must clarify the matter with Martin [Steyn] from
Legal to check if our payments and bonuses were not paid
out. After
that
she
gave us appointment certificates (cards)
.
They said we must go to the Safety Department to see
Ben
Mokgoko
.
15
Upon
our arrival there [he] said he cannot do that as he had to clarify
the matter with Keorapetse [Tumagole, presumably]. He said
he phone
us that day. He did call and said everything is clarified and we can
go ahead. ...
We
went to uniform department and found
De
Jarger
and he
said he must get something from and received an email from HR and he
issued me with complete uniform.’
16
(Emphasis added.)
Mr Fourie went on to
testify that he had also been issued with a motorcycle. He also
referred to the fact that he received a letter
from Ms Steyn (which
was probably a copy of the letter of approval, it having been put to
Mr Tumagole under cross-examination that
the Fouries had received a
copy thereof, which he could not dispute).
A second key
factual issue is what transpired between the period 1 and 17 October
2008. Although Mr Tumagole was sometimes coy
in his evidence in this
regard, he conceded under cross-examination that he was not in a
position to dispute that Mr Fourie was
issued with a uniform and
motorbike and set about issuing traffic tickets until receipt on 17
October 2008 of Mr Tumagole’s
letter dated 16 October 2008.
Messrs Dreyer and Lubbe (who also gave evidence for the
municipality) could not take the issue
much further – the
former stating only that the Fouries had not been reissued with
firearms, and the latter that they had
not been reissued with
appointment certificates / cards upon their return (although he
seemingly had no comment on the assertion
that they were given back
their original appointment cards by someone else).
In his evidence, Mr
Fourie testified that he had been issued with a uniform and
motorbike, but not a firearm, and that he had
set about issuing
traffic tickets during the course of performing his duties. For her
part, Mrs Fourie testified that she had
returned to work in the
event management unit (where she had worked before her resignation).
Messrs Spies and Van der Walt (who
testified for the Fouries)
corroborated the Fouries’ case – the former having
testified that he worked with Mr Fourie
and the latter that he had
worked with Mrs Fourie throughout the period 1 to 17 October 2008.
In
addition to these facts, it warrants mention that the wording of the
municipality’s own correspondence reflects that
the Fouries
returned to work on 1 October 2008. Reference is made in this regard
to Mr Tumagole’s letter to Mr Jooste and
Ms Steyn of 10
October 2008 (the Fouries were ‘
re-employed
’
)
and Mr Tumagole’s letter to the Fouries dated 16 October 2008
(you have ‘
returned
to work
’
).
Significantly, as mentioned above, Mr Tumagole was aware – at
the latest by 9 October 2008
17
–
that the
Fouries had been ‘
re-employed
’
(as he put it) but
only raised the issue with them a week later. Mr Tumagole, being the
bearer of the authority to reinstate them,
thus allowed the Fouries
to continue working for this time before taking decisive action.
I turn now to
consider each of the five questions (which I have reformulated in
some respects) addressed by Mr Shaba in advancing
the review
application.
The first question: were the
Fouries employees of the municipality?
An ‘employee’
is defined as follows in section 213 of the LRA:
‘
(a)
any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled
to
receive, any remuneration; and
(b)
any other person who in any manner assists in carrying on or
conducting the business of an employer.’
Although
the municipality placed reliance on the fact that no formal (i.e.
written) contract of employment was in existence between
the
parties, the conclusion of such a contract is, of course, not a
requirement for qualification as an employee.
18
In the
circumstances, the essential question is whether the municipality
validly communicated its acceptance of the withdrawal
of the
Fouries’ resignation to them (such as to give rise to a
contract).
I do not agree with
the submission that the municipality did not do so. On my assessment
of the evidence, the municipality’s
acceptance of the
withdrawal of the Fouries’ resignation was communicated to
them incrementally by way of
inter alia
: (a) the Jooste
recommendation (the original of which was provided to Mr Coetzer –
the IMATU shop steward who was representing
the Fouries and liaising
with them); (b) Anel Fourie’s email of 25 September 2008,
which she copied to Ms Steyn and Mr
Coetzer; (c) Ms Steyn having
provided Mr Fourie with a copy of the letter of approval; and (d)
the conduct of Ms Burger, Mr Mokgoko
and Mr De Jarger (who each
undertook various enquiries before, in effect, confirming that the
Fouries’ reinstatement was
in order) upon the Fouries’
return to work on 1 October 2008.
Contrary to what
was submitted on behalf of the municipality, in circumstances where
they were provided or sent to IMATU, the
Jooste recommendation and
Anel Fourie’s email of 25 September 2008 do not constitute
purely internal communications. Furthermore,
to my mind, the fact
that the letter of approval was an internal communication is of
little consequence – this in circumstances
where it was
confirmation of what had already been conveyed to Mr Coetzer by Anel
Fourie in her email of 25 September 2008 (a
few days before the
letter of approval) and where Ms Steyn had been liaising with the
Fouries throughout (surely to the knowledge
of all concerned). In
these circumstances, I am not persuaded by the submission of an
absence of formality and direct communication.
I am also of the
view that the submissions summarised in paragraph 44 do not assist
the municipality. There is nothing on the
record to establish that
the Fouries would have had any reason to question the Jooste
recommendation, and, despite Mr Jooste
not having deleted the
‘inapplicable’ (as between approved / not approved), all
concerned always interpreted him
as having recommended the
reinstatement of the Fouries. Turning to Mr Ratsiane’s email
of 29 September 2008, notwithstanding
the fact that there is no
evidence to establish that the Fouries knew about it, Mr Ratsiane’s
view (which was in any event
misinformed to an extent) did not serve
to override the email of 25 September 2008 of Mr Tumagole (who was
the bearer of the
necessary authority) and which clearly set in
train a process that culminated in the approval letters. And, as I
have already
found, the approval letters cannot simply be styled as
internal.
In conclusion, in
my view, as at 1 October 2008, a contract of employment between the
parties was in existence – in the
clear and simple terms set
out in the letter of approval. (This is, however, linked to the
fifth question addressed below.)
If I am wrong, and
a contract of employment did not come into existence, the question
that then arises is whether, as submitted
by the municipality, the
absence thereof means that the Fouries could not have qualified as
‘employees’ as defined
in section 213 of the LRA.
In
Discovery
Health Limited v CCMA & others
[2008] ZALC 24
;
[2008] 7 BLLR 633
(LC), Van
Niekerk AJ (as he then was) found as follows:
‘
Taking
into account the provisions of section 23(1) of the Constitution
19
,
the purpose, nature and extent of relevant international standards
and the more recent interpretations of the definition of “employee”
by this Court
20
,
I
do not consider that the definition of “employee” in
section 213 of the LRA is necessarily rooted in a contract of
employment
.
It follows that a person who renders work on a basis other than that
recognised as employment by the common law may be an “employee”
for the purposes of the definition.
Because
a contract of employment is not the sole ticket for admission into
the golden circle reserved for “employees
”
,
the fact that Lanzetta’s contract was contractually invalid
only because Discovery Health had employed him in breach of
section
38(1) of the Immigration Act did not automatically disqualify him
from that status
.
That,
I think, is the short answer to the question that the commissioner
had to answer. It was not necessary for the commissioner,
as he did
in his attempt to overcome the argument that Lanzetta’s
employment contract was invalid, to construct a conception
of an
“employment relationship” and to consider whether
Lanzetta was a party to such a relationship. If, as I have
suggested,
the statutory
definition of “employee” is not a sidecar to the
motorcycle of the common law contract of employment,
the commissioner
had simply to ask, when applying the statutory definition of
“employee”, whether Lanzetta worked for
Discovery Health
and whether he received or was entitled to receive remuneration
.
The answer to both these questions is clearly yes. Therefore, for the
purposes of determining the CCMA’s jurisdiction to
accept
Lanzetta’s referral of a dispute, Lanzetta was an employee and
Discovery Health employed him.
’
21
(Emphasis added.)
And further:
‘
It
was not necessary in this instance for the commissioner to resort to
a construction that transcends the employment contract as
a whole in
order only to address the consequences of the alleged invalidity of
Lanzetta’s contract. As I have indicated,
the invalidity
argument is best dealt with more simply on the basis that
because
the statutory definition of “employee” extends beyond an
employment contract, then contractual requirements
(at least as they
relate to validity) are not relevant to the application and
interpretation of the definition
’
.
22
(Emphasis
added.)
Allied to this, in
‘
Kylie’ (LAC) (supra)
, the LAC, having accepted
that the LRA must be read so as to implement section 23 of the
Constitution, found as follows:
‘
Once
it is accepted that the constitutional right to fair labour practices
vests in “everyone” and, further that
it
includes not only parties to a contract of employment but those
persons in an employment relationship
,
Mr Trengove’s submission, to the effect that persons, who
engage in services pursuant to an employment relationship such
as the
appellant, are covered by section 23, becomes particularly
compelling.’
23
Emphasis
added.)
Although
not expressly mentioned in
Discovery
Health (supra)
,
it is noteworthy that paragraph (b) of the definition of ‘employee’
is significantly wider than paragraph (a). It
is not circumscribed
by the requirement that remuneration must be paid or that work must
be performed. Instead, in order to qualify
as an employee, the
person need do no more than in any manner assist in carrying on or
conducting the employer’s business.
24
Here, there appears
to be no requirement for the existence of a contract of employment
in order for a person to qualify as an
employee.
Regarding this
court’s judgment in
Odendaal (supra)
, it warrants
mention that the court’s findings were not made in the context
of an interpretation of the definition of ‘employee’
(to
which no reference was made by the court). This notwithstanding,
insofar as the court held that the existence of a contract
of
employment is a necessary prerequisite for an employment
relationship, I respectfully disagree and prefer the approach of
Van
Niekerk AJ in
Discovery Health (supra).
Accepting, as I do,
that a contract of employment is not a necessary prerequisite for
qualification as an employee, the question
then is whether, on the
assumption (for present purpose) that a contract of employment did
not come into existence, the Fouries
nevertheless qualified as
employees. In my view, they did. On the facts, the Fouries worked
for the municipality throughout the
period 1 to 17 October 2008,
with the knowledge of Mr Tumagole (certainly from 9 October 2008
onwards), and, in these circumstances,
would surely have been
entitled to remuneration, with the result that paragraph (a) of the
definition of ‘employee’
was satisfied. Alternatively,
the Fouries qualified as employees under paragraph (b), in that,
throughout the aforesaid period,
they assisted the municipality in
carrying on or conducting its business.
The second
question: were the Fouries dismissed by the municipality?
Accepting,
as I have found, that there was a contract of employment between the
parties, the facts demonstrate, in my view, that
Mr Tumagole’s
letter of 16 October 2008 brought that contract to an end.
25
At the level of
substance, it constituted an act of dismissal in terms of section
186(1)(a) of the LRA, in that the municipality
terminated the
contract of employment without notice.
Insofar
as no contract of employment was in existence, but the Fouries
nevertheless qualified as employees in terms of the definition
thereof (as I have found in the alternative above), the question
that arises is whether the Fouries could still have been dismissed
within the meaning of the definition of ‘dismissal’ in
section 186(1). Mr Shaba answers this question in the negative
on
the basis of the finding in
‘
Kylie’
(LC) (supra)
that
the existence of a valid contract of employment is a necessary
condition to found the statutory right to fair dismissal.
On my
reading of
‘
Kylie’
(LAC) (supra)
,
the LAC held differently, to the effect that, even if a contract of
employment is invalid, an employee who is party to an employment
relationship
per
se
is
entitled to protection from unfair dismissal.
26
Notwithstanding
the above, in my view, ‘contract of employment’ in
section 186(1)(a) should be interpreted widely,
so as to encompass
an ‘employment relationship’. Unless this is done,
persons who do not establish the existence
of a contract of
employment, but nevertheless qualify as employees under the LRA (see
above) would be deprived of protection
against unfair dismissal
27
,
which could not have been intended and would be at odds with the
constitutional right to fair labour practices.
28
This, in my view,
is the clear import of the passage from
‘
Kylie’
(LAC) (supra)
quoted
in para 65 above.
In the
circumstances, even if a contract of employment did not come into
being between the parties, I am nevertheless of the view
that the
Fouries were dismissed by way of Mr Tumagole’s letter of 16
October 2008.
The third question: is the
commissioner’s jurisdictional ruling assailable?
On the basis of my
conclusions that the Fouries were employees and that they were
dismissed by the municipality, I am of the view
that the
commissioner correctly found that he had jurisdiction to arbitrate
the dismissal dispute. The fact that there are aspects
of the
commissioner’s reasons that I do not agree with, does not
detract from this.
Although I am in
agreement that, in accordance with what had been agreed between the
parties at the pre-arbitration conference,
it would have been
appropriate for the commissioner to hear evidence at the first stage
of the arbitration before making his
jurisdictional ruling, in the
light of the decision that I have made to determine this matter
based on the transcription of both
the first and second stages of
the arbitration, this does not affect the outcome hereof.
Indeed, the fact
that Mr Shaba invited me to peruse the transcript of the second
sitting of the arbitration to, in effect, determine
the true facts
(see para 47 above), demonstrates that the issue of jurisdiction
should be determined by me on all the material.
The fourth
question: did the Fouries return to work during the period 1 –
17 October 2008?
With reference to
my analysis of the facts in paragraphs 53-55 above, I am of the view
that the Fouries did in fact return to
work during the period 1 –
17 October 2008.
The submission made
on behalf of the municipality to the effect that the veracity of the
evidence of the Fouries’ witnesses
should be questioned
because it was not substantiated by documents, is plainly without
merit. Also ignored by the municipality
in this regard is the
evidence (apparently uncontested) of the Fouries themselves, which
clearly established that they went about
their duties up until 17
October 2008 – this after having been given back their
‘original’ appointment cards.
The
fifth question: was the Fouries’ reinstatement (if found) ultra
vires and void ab initio?
29
As set out above,
Mr Shaba submitted that, insofar as it is found that the Fouries
were reinstated, none of the authors of any
of the various
communications (including Messrs Jooste and Van Wyngaard) were
authorised to effect the Fouries’ reinstatement
outside
the recruitment policy. In effect, I understood the submission to be
that the process followed in reinstating the Fouries was
in breach
of the recruitment policy, in that it provides for a formal
recruitment and approval process, and that these processes
were not
followed in reinstating the Fouries. From this basis, I understood
Mr Shaba to submit further that the act of reinstating
the Fouries
constituted administrative action; that such act was
ultra vires
the recruitment policy (for the aforesaid reasons) and thus
unlawful; and that such act was void
ab initio
(and thus
visited with a nullity).
In
his response, I understood Mr Geldenhuys to submit that this point
(which I refer to as the ‘
ultra
vires
point’)
is different to the municipality’s pleaded grounds of review.
There are only two paragraphs that could conceivably
cover the
ultra
vires
point
– paragraph 6.4 of the founding affidavit and paragraph 3.1 of
the supplementary affidavit. The first of these paragraphs
alleges
that the commissioner committed a reviewable defect in finding that
the Fouries had been reinstated during the period
1 – 15
October 2008, in circumstances ‘
where
none of [the] officials of the [municipality] with the requisite
authority to order their reinstatement … had specifically
communicated such decision to them
’
.
The second paragraph alleges, in turn, that the commissioner
committed a reviewable defect by finding in favour of the Fouries
‘
when
[they] knew or were expected to know that their re-appointments or
re-acceptance to the employ of the [municipality] were
irregular as
[it] was done by a person with no authority to do so
’
.
While, in both instances, there is a complaint of a lack of
authority, there is no reference in either paragraph to the
recruitment
policy – let alone to a breach thereof being
ultra
vires
and
the ensuing reinstatement being void
ab
initio
as
a consequence. In the absence of the
ultra
vires
point
having been pleaded, I find that the municipality is not entitled to
rely upon it in these proceedings.
30
But
even if I am wrong in so finding and was to entertain the
ultra
vires
point,
it is, in my view, not a point that can succeed in the absence of
the municipality having put up the recruitment policy.
This is so
because it would only be upon a thorough analysis of the recruitment
policy (read in the light of any applicable statutory
framework, to
which I have also not been referred) that a conclusion could be
drawn as to the consequences of a breach of its
terms.
31
It certainly does
not follow, as appears to have been advanced on behalf of the
municipality, that a breach thereof would necessarily
result in the
reinstatement of the Fouries being void
ab
initio
.
Insofar as the
municipality persists with the ground of review pleaded in paragraph
6.4 of the founding affidavit, I am of the
view that it is without
merit. Leaving aside the recruitment policy, which has not been
brought into the review, the person that
had the authority to
reinstate the Fouries was Mr Tumagole. To my mind, despite his claim
in evidence that it only amounted to
some form of preliminary
indication, Mr Tumagole clearly approved of the Fouries’
reinstatement in his email of 25 September
2008 in response to a
request from the department (which is how the Jooste recommendation
was described in Mr Mabusela’s
email, to which Mr Tumagole
replied). The only condition that Mr Tumagole set was that no
termination payments should have already
been made to the Fouries,
with Anel Fourie having confirmed that no monies had been paid over
and that the Fouries would thus
be reinstated in her email sent to
Mr Coetzer (of IMATU) about an hour later. The fact that Mr Tumagole
did not himself convey
this to IMATU does not mean that the
communication was wanting.
The evidence
further establishes, in my view, that Mr Tumagole then did something
of an about turn in his letter of 10 October
2008 to Mr Jooste and
Ms Steyn. Furthermore, as stated above, Mr Tumagole then allowed the
Fouries to continue working until
taking decisive action in his
letter to them dated 16 October 2008.
Insofar as the
municipality persists with the ground of review pleaded in paragraph
3.1 of the supplementary affidavit, it was
not, in my view,
established in evidence that the Fouries had the knowledge that they
are alleged to have had. In the result,
I find there also to be no
merit in this ground of review.
Summation
The main findings
of the court are that the Fouries were employed by the municipality
during the period 1 – 17 October 2008;
that the Fouries were
dismissed by way of Mr Tumagole’s letter dated 16 October 2008
(which they received the following
day); and, accordingly, that the
commissioner was correct in assuming jurisdiction over the dismissal
dispute.
Order
In the result, the
following order is made:
The application is
dismissed.
The applicant is to
pay the costs of the third and fourth respondents.
___________________________________
A.T. MYBURGH
ACTING JUDGE OF THE LABOUR
COURT
DATE OF HEARING: 12 APRIL 2011
DATE OF JUDGMENT: 23 JUNE 2011
FOR THE APPLICANT: Adv Shaba on
the instruction of M S Molebaloa Attorneys
FOR THE 3
RD
& 4
TH
RESPONDENTS: Mr Geldenhuys of Geldenhuys C J @ Law Inc
1
Labour
Relations Act, 66 of 1995
.
2
Solid
Doors (Pty) Ltd v Commissioner Theron & others
(2004) 25 ILJ
2337 (LAC) at para 29;
SA Rugby Players’ Association
(SARPA) & others v SA Rugby (Pty) Ltd & others; SA Rugby Pty
Ltd v SARPU & another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at paras
40-41;
City of Cape Town v SAMWU obo Jacobs & others
[2009] 9 BLLR 882
(LAC) at paras 27-28.
3
Spilhaus
& Co (WP) Ltd v CCMA & others
[1997] 8 BLLR 1116
(LC) at
1120A-D;
Delport v Kopjes Irrigation Settlement Management Board
1948 (1) SA 258
(O) at 260;
Photocircuit SA (Pty) Ltd v De Klerk
NO & De Swardt NO & others
1989 (4) SA 209
(C) at
221F-G.
4
Although
the municipality has a policy in terms of which employees are
entitled to withdraw their resignation during their notice
period,
this did not apply in the circumstances of this matter, as the
Fouries had already left the employ of the municipality
at the time
of making their request.
5
Not
to be confused with the fourth respondent, Alana Fourie.
6
It
is unclear whether the Jooste recommendation was actually attached
to this email, although it may well have been.
7
This
being a continuation of the string of emails dealt with above.
8
As
appears below,
Mr Ratsiane was misinformed to
some extent.
9
The
municipality did not pursue in argument the ground of review that
the commissioner had committed a reviewable defect in awarding
costs
against the municipality in his award on the merits of the
dismissal.
10
At
paras 51-52.
11
At
para 44.
12
Section
186(1)(a)
states that dismissal means that ‘
the employer
has terminated a contract of employment with or without notice
’.
Section 186(1)(b)
, (d), (e) and (f) are also all premised on the
existence of a contract of employment.
13
At
para 90.
14
At
para 75.
15
He
being the contact person in the letters of approval.
16
This
evidence in contained on the reconstructed transcript.
17
When
he wrote to
Mr Van Wyngaard seeking an explanation as to why
he had signed the approval letters.
18
White
v Pan Palladium SA (Pty) Ltd
(2006) 27 ILJ 2721 (LC).
19
Which
provides that ‘everyone has the right to fair labour
practice’.
20
Van
Niekerk AJ referred in this regard to
Rumbles v Kwa Bat
Marketing (Pty) Ltd
[2003] 8 BLLR 811
(LC) at para 17, and
White
(supra)
at 391C.
21
At
paras 49-50.
22
At
para 52.
23
At
para 22.
24
Du
Toit,
et al
,
Labour Relations Law
(5
th
ed)
at 73-74 opine as follows regarding the reason for the broadened
ambit of paragraph (b): ‘
The principal reason, it would
seem, is the fact that a person may be in a
de facto
employment
relationship with another despite the absence of a formal employment
contract between them. Thus, where the employing
entity is an empty
shell owned and controlled by a third party, a person employed by
the former may to all intents and purposes
be an employee of the
latter notwithstanding the absence of an employment contract between
them. The definition may also include
de facto
employees who
do not have valid contracts of employment; for example, foreigners
without work permits or unassisted minors whose
contracts of
employment have been repudiated by their legal guardians
.’
The authors go on to state as follows at 74,fn 82: ‘
Another
example is a purported contractual relationship where one party did
not intend to enter into a contract of employment,
thus rendering
the contract void or voidable … . Even where consensus
ad
idem
is lacking, however, it is possible that an employment
relationship in the broader sense may come into existence
.’
25
NULAW
v Barnard NO & another
[2001] 9 BLLR 1002
(LAC) at paras
23-26.
26
See
inter alia
para 38.
27
In
Discovery Health (supra)
at
para 52 (second para so numbered), Van Niekerk AJ remarked as
follows in this regard:
‘
The
definition of dismissal, defined in
section 186
of the LRA, inter
alia, to include “the termination by an employer of a contract
of employment, with or without notice”
may present a
jurisdictional difficulty to persons who are in engaged in disguised
employment relationships and who claim unfair
dismissal (because of
the specific reference to a “contract of employment”)
but his is not one of those cases
.’
28
See
for a comparable approach,
Wyeth SA
(Pty) Ltd v Manqele & others
[2005]
6 BLLR 523
(LAC).
29
This
is the essence of the submission, although Mr Shaba’s fifth
question was formulated as follows: ‘
Whether
the [Fouries] knew or ought to have known that their re-acceptance /
re-appointment by the [municipality] (if any) was
irregular?
’
30
Rustenburg
Platinum Mines Ltd v CCMA & others
[2004] 1 BLLR 34
(LAC) at
para 15.
31
It
is, of course, not every omission or defect which entails the
drastic penalty of invalidity. In this regard: ‘
No
universal rule can be laid down for the construction of statutes, as
to whether mandatory enactments shall be considered directory
only
or obligatory, with an implied nullification for disobedience. It is
the duty of courts ... to try to get at the real intention
of the
legislature by carefully attending to the whole scope of the statute
to be construed
’ (
Howard v Bodington
(1877) 2 PD
203).