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[2011] ZALCJHB 66
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Nyathi v Special Investigating Unit (J1334/11) [2011] ZALCJHB 66; [2011] 12 BLLR 1211 (LC); (2011) 32 ILJ 2991 (LC) (22 July 2011)
A C BASSON, J
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO: J1334/11
In the matter between:
MIZERIA KITERIA NYATHI
…...........................................................................
Applicant
and
THE SPECIAL INVESTIGATING UNIT
…......................................................
Respondent
Date of judgment : 22 July 2011
Date of hearing : 19 July 2011
________________________________________________________
JUDGMENT
________________________________________________________
A.C BASSON J:
The applicant is Ms. Mizeria Kateria Nyathi. She
is currently employed as the Head of Business Support for the
respondent. The
respondent is the Special Investigating Unit
(hereinafter referred to as the (“SIU”). The SIU was
established in
terms of section 2 of the Special Investigating Units
and Special Tribunals Act,
1
as amended and published in Government Gazette
No.22531 dated 31 July 2001. The deponent to the answering affidavit
– Mr.
Hofmeyr - is the Head of the SIU (“Hofmeyr”).
This was an urgent application in terms of which the applicant
sought a final order interdicting the respondent from firstly,
terminating her employment contract unlawfully; secondly, declaring
that the decision of the respondent to extend the applicant’s
suspension on 5 July 2011 to be invalid, unlawful and of no legal
force or effect; and thirdly, that the applicant be permitted
to
resume her duties as Head of Business Support in terms of her
contract of employment which was signed on 9 October 2009.
The respondent opposed the application (but not urgency) on the
following grounds:
The applicant cannot establish that she has a
prima facie
right to stop the respondent from terminating her employment
contract until it first follows a procedure prescribed in the
Disciplinary Policy (POL044) because –
The applicant’s refusal to submit to a polygraph examination
constitutes a breach of a material term of her employment
contract;
The respondent is entitled to pursue its right to accept such
repudiation and terminate the employment contract;
In the absence of any representations by the applicant as to why
the respondent should not pursue its right as clearly provided
for
in the applicant’s employment contract, the respondent is
lawfully entitled to terminate the applicant’s
employment
contract;
The Disciplinary Policy has no contractual force. It is merely a
guide;
In the alternative, even if the Disciplinary Policy had
contractual force, it does not require the respondent to follow
the disciplinary procedure provided for in the Policy when
terminating for a
breach of a material term
of the
employment contract. The policy provides for a procedure to be
followed in the case of an allegation of
misconduct
only;
The extension of the applicant’s suspension is consistent
with the provisions of the respondent’s Disciplinary
Policy
and also expressly provided for in the Employment Contract
concluded between the applicant and the respondent.
Brief background to the facts
[4] The applicant and the respondent entered into a written contract
of employment on 9 October 2009. On 5 April 2011, the applicant
was
called to a meeting with Hofmeyr of the respondent. On arrival, she
received a letter containing an intention to suspend her.
A summary
of the allegations of misconduct was also attached to this letter. In
terms of the allegations, the applicant allegedly
made herself guilty
of the following acts of misconduct:
1. Conflict of interest, breach of fiduciary duty and disclosure of
the SIU’s confidential or privileged information.
2. Irregular claims for special allowances.
[5] According to the respondent’s papers,
the applicant created a document on her daughter’s computer on
2 February
2011 which was circulated by email under the name of
hfunyufuniu@siu.org.za
and headed “the Pretoria
Concerns.doc”. The properties of this e-mail reflect that this
e-mail was created on the applicant’s
daughter’s
computer. The document was printed on the letterhead of the National
Education and Health Allied Workers Union
(“NEHAWU”) and
widely circulated within the national and regional offices and
employees of the respondent. This document
contains a wide range of
allegations of racism within the respondent and accuses the
respondent and the Head of the respondent
of doing nothing to correct
it. In this document the Head of the respondent is further accused of
distorting facts and attempting
to divide the members of the
respondent and attempting to use black individuals in the
respondent’s executive committee (“EXCO”)
and in
the Trade Union operating in the respondent (“NEHAWU”),
to frustrate transformation efforts within the respondent.
The
document also calls on the Head of the respondent to step down and
that its EXCO be dissolved. According to the respondent,
the contents
of this document are inflammatory in that it incites all black
employees of the respondent to disregard their reporting
lines and
incites them to call on the Head of the respondent to step down and
for EXCO to be dissolved.
[6] The applicant is also invited, in this letter, to make
representations as to why she should not be suspended as a
precautionary
measure pending an investigation into the allegations.
(I will refer to this letter as the “5 April letter”.)
Polygraph examination
[7] In the said letter of 5 April, the applicant was instructed to
undergo a polygraph examination on 6 April 2011 (“the
first
polygraph examination”) in order to verify whether there was
any truth in the allegations against her. It was common
cause that
the applicant during the meeting (of 5 April 2011) indicated that she
would not undergo the first polygraph examination.
She also indicated
that she needed more time to obtain advice. The respondent acceded to
the applicant’s request and changed
the date and time for the
applicant’s polygraph examination by changing the date in the
letter from 6 April 2011 to 7 April
2011 at 11h00 (“second
polygraph examination”). Paragraph 12 of this letter reads as
follows:
“
12.
any failure on your part to comply strictly with the instruction
would constitute,
inter
alia
:
12.1 an act of insubordination
which will not only constitute a serious breach of the trust
relationship between you and the SIU,
but would also make you
susceptible to charges of misconduct; and/or
12.2 a material breach of the
conditions of your employment contract that would entitle the SIU to
terminate the contract of your employment under the law.”
[8] On 6 April 2011, the respondent sent a letter to the applicant in
which the applicant was informed that she was formally suspended.
In
paragraph 7.3 of the 6 April letter, the applicant was again
instructed to undergo a polygraph examination on 11 April at the
time
to be advised by the respondent (“the third polygraph test”).
[9] On 6 April 2011, the respondent received a fax from the applicant
with a copy of a medical certificate attached thereto that
informed
the respondent that the applicant was being treated for anxiety and
depression and that the medication that was prescribed
to her might
result in an inaccurate result been obtained in the polygraph
examination. The respondent thereafter again rescheduled
the
polygraph examination.
[10] The applicant had in the interim referred a dispute about an
unfair labour practice to the CCMA. The conciliation meeting
was
scheduled for 16 May 2011. The respondent consequently decided that,
since the applicant would be at the CCMA to attend the
conciliation,
16 of May would be a convenient date to have the applicant undergoes
the required polygraph examination. On 12 May
2011, the respondent
again instructed the applicant to undergo a polygraph examination on
16 May 2011 immediately after the conciliation
meeting (“the
fourth polygraph examination”). In this letter, the applicant
was again informed that any refusal to
comply strictly with the
instructions will constitute,
inter alia,
insubordination
and/or material breach of her employment contract that would entitle
the SIU to terminate her contract of employment
under law.
[11] On 12 May 2011 the applicant’s attorney sent to the
respondent an e-mail informing the respondent that the applicant
refuses to undergo the polygraph examination. This was despite the
fact she was informed by the respondent that her failure to
do so
would constitute a material breach of the employment contract that
would entitle the respondent to terminate her contract
of employment.
[12] The applicant remained on suspension for 90 days until 5 July
2011, having been suspended on 6 April 2011. The union wrote
a letter
to the respondent and demanded that she return to her work in terms
of point 9.2 of the SIU’s Disciplinary Policy.
(I will refer to
this clause in more detail herein below). The union also informed the
respondent that the applicant will report
for duty on 6 July 2011. On
8 July 2011, the applicant was informed of the written complaints by
one Peter Le Roux. In the said
complaints the allegations raised in
the summary as set out in the letter of 5 April 2011 were repeated.
The applicant was also
advised that her suspension was extended
pending the finalisation of the disciplinary procedure
. As
already pointed out, at issue before this Court is whether or not the
respondent is entitled to
lawfully
extend the suspension. I
will return to this point in more detail herein below. In the letter
of 8 July 2011, the respondent advised
the applicant that it was
furnishing her with a copy of the said complaints, related affidavits
and information in terms of paragraph
10.6 of the Disciplinary
Policy. The applicant was then invited to furnish the respondent with
a written response on affidavit
together with any supporting
affidavit/s or document/s to the contents of the said complaints,
related affidavits and information
within 48 hours of receipt of this
notice. In the following paragraph of the 8 July 2011 letter, the
applicant was advised that
her suspension “has been extended
pending the finalisation of the disciplinary proceedings against
you”. The applicant
was further advised that, as a member of
the SIU, she was required to give her full co-corporation to the
persons investigating
the complaints in accordance with the Policy as
well as the terms of conditions of her employment contract. The
applicant was also
informed that the SIU may require her to undergo
one or more polygraph, lie detector, voice stress analysis and or
voice analysis
tests.
Material terms of the applicant’s contract of employment
[13] The applicant’s employment contract
2
with the respondent obliges her to undergo a Lie
Detective and/or Voice Stress Analysis test at the discretion of the
Head of the
respondent, for the purpose of –
13.1 the verification of any information furnished by the applicant
in the respondent’s pro-forma security clearance form;
13.2 the verification of any details contained in any disclosures
made by the applicant (e.g. personal business, financial interests,
bank accounts, credit cards. Credit accounts, hire-purchase
agreements, vehicle finance schemes, mortgages, loan accounts,
disclosure
in policies, trust and other businesses);
13.3 any matter falling within the course and scope of the
applicant’s employment with the respondent, as well as any
matter
reasonably incidental to such employment of having any
relevant bearing thereon;
13.4 any matter relating to whether or not the applicant continues to
be a fit and proper to attend tot the performance of the
functions of
the respondent, as envisaged in section 3(2) of Act 74 of 1996;
13.5 the applicant’s adherence to or compliance with any
material term of his/her contract of employment with the respondent,
as well as the respondent’s policies and procedures;
13.6 the applicant’s involvement in any activity, relationship,
conduct or circumstances which may, reasonably considered,
prejudice
the good name and reputation, functions or legitimate interests of
the respondent, or which may compromise or weaken
the applicant’s
will or ability to resist temptation or desist from any conduct which
may prejudice the respondent, or compromise
the security of the
respondent’s records and its operation.
[14] The requirement to consent to a lie detector test for purposes
referred to above is one of the many provisions that require
an
employee of the respondent to consent to measures that are intrusive.
The answering affidavit sets out the rationale for these
measures and
states that such measures are necessary to ensure the maintenance of
security and integrity in the respondent in light
of its core
business. A failure to make a full financial disclosure as well as
providing any false statement or false information
may result in
disciplinary action be taken. The respondent submitted that these
provisions, although extraordinary, are not unreasonable
in the
context of an organisation such as the respondent in light of the
fact that the respondent is responsible for investigating
corruption
and maladministration in government departments and state
institutions. It is therefore vital for the effective functioning
of
the respondent that its members conduct themselves with the utmost
integrity.
[15] It therefore appears from the answering
affidavit that security, integrity and discipline are at the heart of
the employment
contract between the respondent and its members
(including the applicant). In order to join the respondent, members
(including
the applicant) are required to acknowledge that they
submit to and accept those clauses in the employment contract that
deal with
security, discipline and integrity.
3
Pertinently at issue is the provisions that
require members of the SIU to undergo a polygraph examination.
Legal issues
[16] In this application two legal issues fall to be decided:
Is the respondent entitled to extend a suspension beyond the 90-day
period provided for in clause 9.2 of the respondent’s
Disciplinary Policy? Put differently, can the respondent lawfully
extend the suspension indefinitely?
Is the respondent entitled to terminate the contract of employment
for alleged repudiation using the procedure it evoked by
requesting
the applicant to submit a written representation. Put differently,
is the respondent entitled to treat the applicant’s
refusal
to undergo a polygraph examination as repudiation of a material
provision of her employment contract (and not as misconduct)
and to
accept the applicant’s repudiation and terminate the
applicant’s employment contract?
The lawfulness of the extension of the suspension.
[17] I have already pointed out that it is common cause that on 6
April 2011, the respondent placed the applicant on suspension
and in
doing so relied on clause 9 of the Disciplinary Policy with heading
“Suspension Pending Conclusion of Misconduct and/or
Disciplinary Proceedings”. In terms of paragraph 9.1 of the
Disciplinary Policy, an employee may be suspended with or without
pay
prior to the conclusion of disciplinary proceedings where the member
has been charged with or is on reasonable grounds suspected
of having
committed misconduct that is serious and as such pose a risk to the
safety of any members of the SIU or the confidentiality
of any of the
SIU’s information, or poses a well sounded risk of interfering
in the investigation undertaken or lodged against
a member. Clause
9.2 of the Disciplinary Policy reads as follows:
“
9.2.
If formal disciplinary proceedings are not instituted against a
suspended member
within
ninety (90) days
from
the date of his/her suspension, the
suspension
shall lapse
and
the member shall be reinstated to his/her post and the benefits with
retrospective effect.”
4
[18] It must again be emphasised that the applicant is not
challenging the
fairness
of the suspension in these
proceedings. It is trite that the CCMA is vested with the
jurisdiction to decide that issue. The applicant
has also already
referred a dispute about the alleged unfair suspension to the CCMA.
The lawfulness or fairness of the suspension
of 6 April 2011 is
therefore
not
at issue in these proceedings. What is in issue
in these proceedings is the
lawfulness
of the subsequent
decision taken on 5 July 2011 to
extend
the suspension.
[19] On behalf of the applicant it was submitted that the provisions
of this clause are peremptory and that it is clear from this
clause
that no provision is made for an extension, once the 90 days have
expired. In
casu,
the 90 days had expired on 5 July 2011
whereafter the respondent extended the period of the suspension. On
behalf of the applicant,
it was submitted that she had to be
reinstated in her position.
[20] On behalf of the respondent, it was submitted that the
Disciplinary Policy is merely intended to serve as a guide for the
establishment and maintenance of reasonable and equitable standards
of conduct consistent with the mission, functions, goals, profile
and
objectives of the SIU. It was therefore submitted that the management
of the SIU is entitled to adjust and adapt the disciplinary
policy
from time to time. More fundamental is the respondent’s
argument that the SIU has a
contractual right
to suspend the
applicant and that it may do so indefinitely. In respect of the
second point to be decided, the respondent submitted
that the
procedure set out in the Disciplinary Policy does not apply to
breaches of specific provisions of the employment contract
and that
the Policy only applied to instances of misconduct. According to the
respondent, there exists no provision in the employment
contract that
prescribes a procedure that the respondent must follow before
terminating the contract for breach. The procedure
that was followed
by the respondent in this case namely to require of the applicant to
submit written representation is not provided
for in the contract but
was adopted according to the respondent merely to be fair towards the
applicant. I will return in more
detail to this argument when I
discuss, the second issue to be decided by this Court.
[21] It is clear from the papers and the submissions that the
applicant and the respondent approached the two legal questions
before this Court fundamentally differently. What is, however, common
cause is the fact that the Disciplinary Policy forms part
of the
contract of employment. This much is also clear from the Integration
Clause, 15 read with clause 12 of the employment contract.
Does the respondent have the right to lawfully extend the
applicant’s suspension?
[22] I have already referred to the fact that the Disciplinary Policy
provides, in clause 9.2, that the suspension of an employee
“
shall
lapse
” after 90 days and that the applicant submitted that
this clause is peremptory. The respondent as already pointed out,
submitted
that the Policy is merely a guide. In addition thereto, the
respondent relied on clause 11.4 of the contract of employment to
argue
that the respondent also has a
contractual right
to
suspend the applicant which contractual right is not limited to the
90 days period given as “a guide” in the Disciplinary
Policy:
“
11.4
The Unit has the right to suspend the Employee from his/her office,
with or without pay pending the outcome of an enquiry into:
11.4.1 any alleged failure of
the Employee to meet standards of work:
11.4.2 any criminal offence
allegedly committed by the Employee, and/or
11.4.3 any alleged breach of
this agreement.”
[23] Mr. Moshoana persuasively argued that it is clear from the facts
before this Court that the respondent had
elected
to invoke
the provisions of the Disciplinary Policy and more in particular
clause 9 thereof when it decided to suspend the applicant.
Consequently the respondent cannot midway through this procedure
change its stance and now rely on a contractual provision to
substantiate the argument that it has a contractual right to suspend
an employee indefinitely.
[24] I am in agreement with the argument presented on behalf of the
applicant by Mr. Moshoana that it cannot be argued that the
SIU’s
Disciplinary Policy is merely a guideline that can be ignored. I have
already referred to the fact that it was common
cause that the
Disciplinary Policy forms part of the contractual terms and
conditions of the applicant’s contract of employment
as a
result of the fact that the Policy was specifically integrated into
the contract. The clause is furthermore framed in peremptory
terms
and unequivocally states that the suspension lapses after 90 day.
[25] There is a further compelling reason as to
why the employer in this matter should not be allowed to treat the
provisions of
the Disciplinary Policy in respect of the expiry of the
suspension merely as a guideline. The purpose of a clause providing
for
the expiry of a suspension is to protect the employee from a
protracted suspension. In this regard, I am in agreement with the
sentiments expressed by my Learned Brother Molahlehi, J in
Lekabe
v Minister: Department of Justice and Constitutional Development
5
where he held in the context of a similar
provision contained in the Senior Management Services Handbook
(“SMS”) that
the purpose of such a clause was to restrain
an employer to abuse protracted suspension as a method of
marginalising and prejudicing
an employee.
[26] In the present case it was also common cause that no
disciplinary proceedings have, up until the institution of these
proceedings,
been instituted against the applicant. To allow the
respondent in these circumstances to simply ignore the peremptory
wording used
in clause 9.2 and continue to extend the suspension
indefinitely, is not only unlawful in my view but goes against the
purpose
of the inclusion of such a clause namely to protect an
employee against a protracted suspension.
[27] I am therefore persuaded by the argument that the suspension of
the applicant expired after 90 days and that the extension
thereafter
is unlawful.
[28] I must also point out (and in this regard I
am once again in agreement with my Learned Brother Molahlehi J in the
Lekabe case
6
that the fact that the suspension falls away after
the prescribed period does not mean that the employer no longer
retains the right
to discipline the employee. The employer may still
proceed with disciplinary action against the employee.
[29] Lastly, I must briefly deal with the argument
submitted on behalf of the respondent; namely, that nothing prevents
the respondent
from deciding to invoke a clause in the contract (in
this case clause 11.4
7
)
which provides for an unlimited suspension of the applicant. I have
several difficulties with this submission.
(i) Firstly, it could not have been the intention of the drafters of
the contract to provide for two conflicting suspensions clauses.
(ii) Secondly, even if it was, it is clear from the facts that the
respondent had
elected
to invoke clause 9 of the Disciplinary
Policy in suspending the applicant. I am therefore in agreement with
the submission that
once the election was made, the respondent is
bound by it. Consequently, the respondent cannot therefore halfway
through the suspension
process decide to abandon the process provided
for in the Disciplinary Policy and proceed with another suspension
process provided
for in the contract. Even if this was possible, I do
not accept that it could have been the intention to have two
suspension clauses:
the one with a limited duration and the other
providing for an unlimited period of a suspension.
[30] I am therefore persuaded that the extension of the suspension
period was unlawful. The applicant therefore succeeds on this
point
and an order is made in the following terms:
The decision to extend the applicant’s suspension on 5 July
2011 is invalid, unlawful and of no legal effect and is therefore
set aside.
The respondent is ordered to permit the applicant to resume her
duties as Head: Business Support in the respondent.
Can the respondent terminate the applicant’s employment
contract lawfully?
[31] I will now turn to the next question namely whether the
respondent is entitled to terminate the contract
lawfully
. I
have already referred to the fact that the respondent is of the view
that because the applicant repudiated a material provision
of the
employment contract by refusing to submit to a polygraph examination,
as she is contractually obliged to do, the respondent
is entitled to
accept her repudiation of her employment contract and terminate her
contract employment. The applicant’s case
is that the
respondent may only terminate the contract by following the procedure
as contained in the Disciplinary Policy.
[32] Before I turn to the merits of the argument, it is relevant to
point out that, although the applicant has been informed that
the
respondent accepts what they regard as a repudiation of her contract
of employment, the respondent has yet to terminated her
contract of
employment. What is, however, clear from the papers that the
respondent is intending to terminate the contract on the
basis of the
breach and not to do so by following procedures as set out in the
Disciplinary Policy. As already pointed out, the
applicant is seeking
a (final) order from this Court interdicting the respondent from
terminating the applicant’s employment
contract
unlawfully
.
The respondent argued that it is entitled to elect to deal with the
refusal of the applicant to submit to a polygraph examination
as a
breach of a material term of the contract and terminate the contract
in terms of the provisions of the contract and not to
deal with it as
a form of misconduct which would then have to be dealt with in terms
of the Disciplinary Policy. Mr. Bruinders
accepted, and correctly so,
that a breach of a material term usually also constitutes misconduct.
He was, however, of the view
that where an employee is contractually
(specifically) obliged to obey certain instructions, the refusal or
failure to do so may
be dealt with in contractual terms as a breach
of the contract and not as misconduct (which must be dealt with in
terms of the
Disciplinary Policy). In this case, as already stated,
the applicant is contractually obliged to submit to a polygraph
examination.
[33] I do not intend dwelling on the issue of the requirement of a
polygraph examination. Suffice to point out that the Court accepts
that the respondent has sound reasons for including such an
obligation, to submit to,
inter alia
, a polygraph, in light of
the core business and functions of the SIU which is to investigate
corruption and maladministration in
government departments and state
institutions. The Court also accepts that, although some of the
measures such as having to submit
to a polygraph examination, having
to provide urine and blood samples may seem to be intrusive, these
measures are reasonable in
the context of an organisation such as the
respondent (provided, of course, that these measures are applied
fairly and only when
reasonably necessary to do so).
The law of contract and the law of unfair dismissal in terms of
the LRA
[34]
In order to decide this issue, it is necessary to give a brief
overview of the status of the contract of employment and the
rights
that a contracting party has in terms of the law of contract
vis
à vis
the
right not to be unfairly dismissed. I do not intend giving a detailed
exposition of the jurisdictional issues that arise when
an employee
decides to proceed with a claim on the basis of contract as opposed
to proceeding with a claim based on a breach of
the provisions
contained in the Labour Relations Act 66 of 1995 (“the LRA”).
This issue has been debated in various
cases particularly in the
context of a claim based on the right not to be unfairly dismissed
(which flows from the LRA) as opposed
to a claim for breach of
contract.
8
For purposes of
this judgment, it is accepted that the employment relationship has a
contractual character although l
abour
legislation has supplemented the deficiencies of the common law
principles particularly in respect of the
termination
of a contract of
employment with the import of the requirement of
fairness.
The
contract of employment and the principles of the law of contract
therefore remains intact in respect of the question whether
a
contract is lawful and whether the contract of employment was
lawfully, as opposed to fairly, terminated. The act of terminating
the employment contract contemplates both the termination of the
contract through a right in terms of the contract (or where one
party
breached the contract or by repudiating a material term of the
contract or by repudiating the whole of the contract) as well
as the
termination of the contract by following the guidelines encapsulating
the requirement of fairness as contained in the LRA
(and more in
particular in the Code of Good Practice: Dismissals in Schedule 8 of
the LRA). A distinction must therefore be made
between the lawfulness
and the fairness of the termination of the contract of employment.
The requirement of a “
fair
”
termination does not,
therefore, suggest that employers need not adhere to the requirements
in respect of the
lawful
termination
of the contract of employment. It cannot therefore, in my view, be
said that the LRA has completely overtaken the common
law principles
relating to the cancellation and repudiation of the contact.
9
The fact that a
contract of employment contemplates both a lawful and a fair
termination was described as follows by the Appellate
Division (as it
then was) in
National
Union of Mineworkers of SA v Vetsak
Co-operative
Ltd and Others,
10
where the Court
held as follows:
“
The
most one can do is to reiterate that there are two sides to the
inquiry whether the dismissal of a striking employee is an unfair
labour practice, the one legal, the other equitable. The first aspect
is whether the employer was entitled, as a matter of common
law, to
terminate the contractual relationship between them and that would
depend, in the first place, on the seriousness of its
breach by the
employee. The second aspect is whether the dismissal was fair –
and that would depend on the facts of the case.
There is no sure
correspondence between lawfulness and fairness. While an unlawful
dismissal would probably always be regarded
as unfair (it is
difficult to conceive of circumstances in which it would not), a
lawful dismissal will not for that reason alone
be fair.”
[35] It is further accepted that an employee has
rights both in terms of the common law and in terms of the LRA in the
event of
a premature termination of a fixed term contract,
11
or in the event of other dismissals,
12
and that the employee has a choice whether or not
to pursue his common law rights to enforce a claim for contractual
damages in
the event of a termination of the contract or claiming on
the basis of an unfair dismissal because of a lack of substantive
and/or
procedural fairness. In this regard the Labour Court in
Jonker
v Okhahlamba Municipality
and Others
13
stated as follows:
“
A
breach of the common law contract of employment, in so far it has not
been supplanted by legislation, may also be actionable under
the
Constitution. Remedies for such breaches must be derived from the LRA
itself … The interface between the Constitution,
labour
legislation and the common law depends on the right claimed and how
it is pleaded.”
[36] It is therefore for the employee to choose
whether or not she wishes to base her claim on contract or on the
principles embodied
in the LRA and to make out a case for the relief
sought in the pleadings.
14
[37] In principle therefore, an employer has the right contractually
to terminate the contract. Whether the termination will also
be fair
is an entirely different question and not relevant in these
proceedings. Where a contract is terminated unlawfully it will
usually also constitute an unfair termination. The reverse is,
however, not always true.
[38] The only remaining question is whether there are facts before
this Court to indicate that the respondent is intending the
interdict
the contract
unlawfully
.
[39] I am firstly persuaded on the papers that it is a material term
of the contract to submit to a polygraph test and that the
applicant,
by refusing to do so has repudiated a material term of the contract
entitling the respondent to terminate the contract.
As already
pointed out, it is not at issue here whether or not the termination
would be
fair
. I am therefore not persuaded by the submissions
advanced on behalf of the applicant that this refusal does not go to
the root
of the agreement and therefore not material. I am persuaded
in light of the facts contained in the answering affidavit that it is
not unreasonable nor unlawful - taking into account the nature of the
business of the respondent and the high premium placed on
integrity
in light of the SIU’s functions - for the respondent to require
of an employee to submit to a polygraph test. She
had, after all,
contractually agreed to do so. The refusal to undergo a polygraph
test may also constitute misconduct and may even
be a ground for
dismissal. However, as already pointed out, it is not at issue here
whether or not the respondent can charge the
applicant with
misconduct in that she had refused to submit to a polygraph test. At
issue here is whether or not the respondent
can lawfully terminate
the contract because the applicant had repudiated a material term of
her contract and whether or not certain
procedures as contained in
the Disciplinary Policy must be followed.
[40] The applicant argued that the respondent elected to hold an
inquiry (in terms of the Disciplinary Code) and therefore elected
to
deal with the refusal as misconduct. Accordingly the respondent
cannot follow the procedure it followed namely to require the
applicant to make representations as to why the contract should not
be terminated. The Court was also referred to the fact that
a
complaint was filed in terms of clause 10 of the Disciplinary code
with the result that the respondent thereafter had to follow
the
procedures set out in the Disciplinary Policy (clause 10.9). In
essence the applicant argued that the applicant elected to
follow the
misconduct route and is therefore bound by this election.
[41] I am not persuaded by this argument. I have already indicated
that the termination of a contract of employment envisages two
acts:
one in terms of the contract and one in terms of the circumstances
provided for in the LRA. Where the employer treats the
repudiation as
misconduct, it must follow the procedures contained in the
Disciplinary Code. The contract in this case is silent
on the
procedures that must be followed when terminating the contract. It
does not provide for a contractual right to a hearing
before
termination (for breach of a material term of her contract). What she
does have is a contractual right to a fair procedure
as contained in
the Disciplinary Policy where the employee is seeking to terminate
the contract on the basis of misconduct. Put
differently, the
Disciplinary Policy provides for a hearing in the event of
misconduct. It does not provide for a hearing before
termination for
breach of the employment contract.
[42] At issue here is whether the Court should interdict the
respondent from lawfully terminating the contract. I am not persuaded
that the applicant has made out a case for the relief sought in
circumstances where it appears from the facts that the applicant
has
breached a material term of her contract and where it appears that
the respondent is terminating the contract in terms of the
provisions
of the contract. What remain, however, intact are the applicant’s
remedies under the LRA and should the contract
of the applicant be
terminated lawfully, she may still refer the dispute pertaining to an
alleged unfair dismissal to the appropriate
forum, should she wish to
do so. By refusing to grant an interdict to prevent the respondent
from terminating the contract lawfully,
the applicant is therefore
not prevented in any way from exercising any rights she may have
under the law of unfair dismissal.
[43] In order to succeed, the applicant had to show that she has a
right to a disciplinary hearing as set out in the Disciplinary
Policy
before her employment contract is terminated for breach of a material
term in terms of the contract. I am not persuaded
that the applicant
has made out such a case.
Costs
[44] In light of the fact that both parties were partially
successful, I make no order as to costs.
ORDER
[45] Having read the papers and having considered the matter the
following order is made:
The decision to extend the applicant’s suspension on 5 July
2011 is invalid, unlawful and of no legal effect and is set
aside.
The respondent is ordered to permit the applicant to resume her
duties as Head: Business Support in the respondent.
The application to interdict the respondent from terminating the
applicant’s employment in terms of the contract on the
grounds
that she has breached a material term of her contract is dismissed.
No order as to costs.
__________________________
AC BASSON, J
For the applicant : Mr GN Moshoana of Mohlaba & Moshoana Inc
For the respondent: Advocate T Bruinders SC and Advocate K Millard
Instructed by : The State Attorney
1
Act
74 of 1996
2
Clause
9A.2.(h)
3
Clauses
8 and 9A, especially clause 9A.2
4
The
Court’s emphasis.
5
(2009)
30 ILJ 2444 (LC)
6
Above
n2 at para [16]. See also Mogothle v Premier of the North West
province and Another (2009) 30 ILJ 605 (LC)
7
Clause
11.4.
8
See,
inter
a
lia
, Chirwa
v Transnet Ltd and Others
(2008)
29 ILJ 73 (CC);
Fredericks and Others v MEC for Education and
Training, Eastern Cape and Others
(2002) 23 ILJ 81 (CC):
Nakin
v MEC, Department of Education, Eastern Cape Province and Another
(2008) 29 ILJ 1426 (E) and
SA Maritime Safety Authority v
McKensie
[2010] 5 BLLR 488
(SCA) and
Fedlife Assurance Ltd v
Wolfaart
(2001) 22 ILJ 2407 (SCA).
9
S
ee,
inter
alia,
Amazulu Football Club
and Hellenic Football Club
(2002) ILJ 2357 (ARB) at
2364G-H.
10
[1996] ZASCA 69
;
1996
(4) SA 577
(A)
11
Fedlife
supra
ad paragraph [18]: “… By enacting s 186(b)
the legislature intended to bestow upon an employee whose fixed-term
contract has run its course a new remedy designed to provide, in
addition to the full performance of the employer's contractual
obligations, compensation (albeit of an arbitrary amount) if the
employer refuses to agree to renew the contract where there
was a
reasonable expectation that such would occur. That being so, it
would be strange indeed, and bereft of any rationality,
for the
legislature to deny to the employee whose fixed-term contract of
five years has been unlawfully terminated within days
of appointment
the benefit of either specific performance of the contract or
damages for its premature termination and to confine
the employee to
the limited and entirely arbitrary compensation yielded by the
application of the formula in s 194 of the 1995
Act. It is manifest
that the result would be that the former employee, although in far
less need than the latter of a remedy,
will have received more than
is due at common law, but that the latter may not recover as of
right even that which was payable
at common law and instead must
rest content with 'compensation' which may be ludicrously small in
comparison with the true loss.
The absurdity does not end there. If
it were so that a plaintiff such as this is confined to a claim for
'compensation' in terms
of s 194, where the employer proves that
'the reason for dismissal is a fair reason related to the employee's
conduct or capacity
or based on the employer's operational
requirements' and 'that the dismissal was effected in accordance
with a fair procedure'
the plaintiff would not be entitled to any
compensation. That would be the combined effect of s 188(1)(a) and
(b) ; s 192; s
193 and s 194. Such a result could never have been
the intention of the legislature.”
12
See
Denel
(supra). In this matter the employee contended that his
dismissal for misconduct constituted a breach of his employment
contract
because the disciplinary hearing did not comply with the
exact disciplinary procedures that formed part of his employment
contract.
The employee claimed damages. The SCA concluded that the
Constitution does not deprive contractual terms of their effect and
that the employee can claim on the basis of a breach of contract as
opposed to claiming on the basis of an unfair dismissal because
of
the lack of procedural fairness: See 318H – I.
13
(2005)
6 BLLR 565
(LC) at 569A.
14
See
in general
Transman (Pty) Ltd v Dick and Another
[2009] 7
NLLR 629 (SCA) where the SCA held that dismissed employees may still
rely on contractual breaches.
23