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[2011] ZALCPE 7
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De Beer v Minister of Safety and Security/Police and Another (P720/10) [2011] ZALCPE 7; (2011) 32 ILJ 2506 (LC) (23 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN PORT ELIZABETH)
CASE
NO:P720/10
In
the matter between:
MATTHEUS
ANDRIES DE BEER
Applicant
And
THE
MINISTER OF SAFETY
AND
SECURITY / POLICE
First
Respondent
PROVINCIAL
COMMISSIONER
EASTERN
CAPE: M S LANDU
Second
Respondent
JUDGMENT
LALLIE
AJ
[1] This application was brought
on a semi urgent basis. It was set down for 20 January 2011 when it
was removed from the roll and
heard on 3 March 2011. The applicant is
seeking an order setting aside the termination of his services,
reinstating him in his
full salary, benefits and emoluments with
interest, back dated as from 1 December 2009 pending the finalisation
of his application
for reinstatement and application for medical
boarding.
FACTUAL
BACKGROUND
[2] The applicant joined the
South African Police Service (SAPS) on 15 December 1980. In January
1993 the applicant started experiencing
medical problems. Between
January 1993 and 19 July 2007 he was treated for a number of ailments
including Post Traumatic Stress
Disorder (PTSD).
[3] From 3 to 17 March 2009 the
applicant was booked off sick for stress by a general practitioner.
Dr Taylor, a Specialist Psychiatrist
booked the applicant off sick
from 17 March 2009 for PTSD and Major Depression. The applicant was
thereafter booked off sick continuously
until his contract of
employment was terminated on 8 June 2010 after 30 years’
service.
[4] On 22 July 2009 Abram
Greyling (Greyling), a Brigadier in the SAPS and the Chairperson of
the Cluster Absenteeism Management
Committee wrote a letter which was
served on the applicant on 24 July 2009. The following is highlighted
in the letter:
4.1 The applicant had been
absent from work without approved leave of absence for an
unreasonably long period of time and his conduct
constituted
misconduct;
4.2 The applicant had to report
for duty within 2 days of the receipt of the letter;
4.3 The
applicant had to make representations within 5 working days as to why
his leave should not be treated as leave without pay.
Failure to
report for duty or make representations would lead to the suspension
of his salary.
[5] The applicant’s only
response to the letter was an application for a month’s
vacation leave which was granted.
[6] The applicant alleges that
he completed an application for ill-health retirement on 27 July 2009
and 2 applications for temporary
incapacity leave (TIL), one on 3
September 2009 and the other on 11 October 2009 which he submitted to
Colonel Booysen, the Commander
of organised Crime in Port Elizabeth.
The respondents denied that the applications were presented to
Collonel Booysen.
[7] 0n 17 September 2009
Greyling wrote a letter similar to the one he had forwarded to the
applicant on 26 July 2009 informing
him again that should he not
resume his duties within 2 days of the letter or make representations
within 5 working days as to
why his absence should not be treated as
leave without pay, his salary would be suspended. The letter was
served on the applicant
on 23 September 2009.
[8] The applicant did not
respond to the letter and his salary was suspended at the end of
November 2009. On 1 June 2010 the applicant
received a notice of
intended termination of his contract of employment. The reason given
by the second respondent for the intended
action was the applicant’s
failure to discharge his duties owing to his absence from work. At
the time the notice was written
the applicant had been absent from
work for 201 working days. The second respondent also asked the
applicant to provide him with
reasons why his contract of employment
should not be regarded as terminated.
[9] On 8 June 2010 the applicant
made representations as to why his contract of employment should not
be regarded as terminated.
The applicant further submitted that by 9
June 2010 his application for ill-health retirement had been
presented to Booysen’s
office. The allegation is denied by the
respondents. A copy of the application is attached to the founding
affidavit. It was signed
by the applicant and Booysen on 9 June 2010.
[10] On 11 July 2010 the
applicant received a notice of the termination of his contract of
employment with immediate effect on the
grounds that his continuous
unauthorized absence was unacceptable and unreasonable. In response
the applicant made further representations
to the second
respondent on 23 September 2010
in which the applicant’s attorneys sought the applicant’s
immediate reinstatement with
full salary to allow him to apply for
medical boarding. All the TIL and ill-health retirement applications
the applicant referred
to in the founding affidavit formed part of
the representations. On 30 September 2010 the second respondent
informed the applicant’s
attorneys that he stood by his
decision terminating the applicant’s contract of employment.
URGENCY
[11] Counsel for the respondents
challenged the urgency of this application. He argued that this
application should be struck off
the roll with costs on the grounds
of lack of urgency. He submitted that in addition to financial
hardship or loss of income, the
applicant had to show exceptional
circumstances before interim relief can be granted. In support of his
argument he referred to
the case of
Democratic Nurses Organisation of SA & another v Director
General, Department of Health & others
(2009)
30 ILJ 1845 (LC).
[12] Counsel for the applicant
insisted that this application is urgent. He relied on the decision
in
Harley v Bacarac
Trading 39 (Pty) Ltd
[2009] JOL 23489
(LC) in which the court expressed that it has a wide
discretion to determine the urgency with which applications should or
should
not be treated.
[13] In his contention that this
application is one of urgency the applicant relied on loss of income,
depleted savings and that
his health will suffer as he will not
afford medication. I am persuaded that the applicants’
financial exigencies and the
need for medication are sufficient to
justify this application being heard as one of urgency.
JURISDICTION
[14] Counsel for the respondents
argued that this court lacks jurisdiction over this dispute as it
relates to an unfair dismissal.
He sought to rely on section 191 (1)
(a) of the Labour Relations Act 66 of 1995 (the LRA) in arguing that
the Safety and Security
Sectoral Bargaining Council (SSSBC) has the
necessary jurisdiction. He further argued that this court lacks
jurisdiction over the
applicant’s claim for the payment of his
salary from 1 December 2009 to the date of the termination of his
services as it
has no jurisdiction over claims for non-payment of
salaries.
[15] Counsel for the applicant
emphasised in his supplementary heads of argument that at this stage
the applicant is merely requesting
interim relief.
[16] The argument that the
SSSBC has the necessary jurisdiction to determine interim
reinstatement is incorrect. While it is correct
that Section 191 (1)
(a) has endowed the SSSBC with jurisdiction over dismissal disputes
and the relief it may grant when determining
such disputes, the
nature of the applicant’s claim is different. He is not seeking
an order reinstating him on the grounds
that he was dismissed
unfairly. He seeks to be reinstated in his full salary, benefits and
emoluments with interest at the legal
rate backdated from 1 December
2009, pending the finalisation of his application for reinstatement
and for ill-health retirement.
The applicant therefore intends
challenging his alleged unfair dismissal in future proceedings.
[17] The SSSBC is a creature of
the LRA. It has no inherent jurisdiction and can only exercise powers
bestowed on it by enabling
legislation. No piece of legislation has
bestowed on the SSSBC jurisdiction to grant interim relief.
[18] Section 158 (1) (a) of the
LRA gives the Labour Court jurisdiction to make any appropriate order
including the grant of urgent
interim relief. In
Botha
and Another v the Department of Education, Arts, Culture and Sports,
Northern Province Government and 3 others
(1999) 20 ILJ 2590 (LC) the Court confirmed the question to be asked
to determine whether the Labour Court has jurisdiction to
adjudicate
a matter. The question is:
“
...
whether or not there are provisions, either in the Act or in any
other law, which may say such a matter may be determined by
the
Labour Court. If the answer is that there are such provisions, then
this court has jurisdiction.”
[19] Although later decisions to
determine the Labour Court’s jurisdiction have been couched
differently, they have not altered
the above decision. The Labour
Court’s jurisdiction to grant interim relief in respect of
disputes which are still to be
determined through arbitration has
been confirmed time and again. In this regard see
Jiba
v Minister of Justice and Constitutional Development & others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC) and
Legal
Aid Board v Jordaan
2007 (3) SA 327
(SCA).
[20] Disputes emanating from
non-payment of remuneration are governed by the Basic Conditions of
Employment Act 75 of 1997 (the
BCEA) section 77 (1) of which grants
the Labour Court exclusive jurisdiction over all matters in terms of
the BCEA. In
Botha and
Another v The Department of Education, Arts, Culture & Sport,
Northern Province and 3 others
(supra) the Labour Court confirmed its jurisdiction over a dispute
involving the termination of payment of a portion of the applicant’s
salary.
[21] For these reasons the point
in limine
raised by the respondents regarding the jurisdiction of the Labour
Court to determine the application for interim relief is dismissed.
APPLICATION
TO STRIKE OUT
[22] The respondents lodged an
application to strike out paragraphs 14.9 to 14.14 and paragraph 37
with its annexure, marked annexure
TBD 17 of the applicant’s
replying affidavit on the grounds that they raise new issues and are
irrelevant.
[23] Counsel for the respondents
argued that the dispute regarding General Mfazi (Mfazi) which is
referred to in paragraphs 14.9
to 14.14 of the applicant’s
replying affidavit relates to a transfer and its resolution involves
the grievance procedure.
The current matter involves a dismissal and
its resolution procedure excludes the grievance procedure but
requires an employee
to refer the dispute directly to the SSSBC
within 30 days from the date of dismissal.
[24] In his argument that
paragraph 37 and annexure TBD 17 of the applicant’s replying
affidavit constitute new issues, Counsel
for the respondents sought
to rely on the principle that the necessary allegations the applicant
relies on must appear in his founding
affidavit as he will not
generally be allowed to supplement the affidavit by adducing
supporting facts in a replying affidavit.
He added that there was no
reason for the evidence not to form part of the founding affidavit as
it was available.
[25] Counsel for the Applicant
argued that paragraph 14 of the applicant’s replying affidavit
is in reply to the jurisdictional
point which was raised by the
respondents in the answering affidavit. Paragraphs 14.9 to 14.14 have
been included to illustrate
the manner in which the first respondent,
as employer, deals with internal disputes lodged in terms of the
Grievance Management
Regulations.
[26] Paragraph 37 and annexure
TBD 17, so it was argued on behalf of the applicant, is in response
to paragraph 33 of the answering
affidavit in which the respondent
denied that the applicant was exposed to work-related traumatic
incidents. The applicant has
referred to work-related traumatic
incidents in his founding affidavit. Paragraphs 14.9 to 14.14 and 37
and annexure TBD 17 are
relevant, amplify the founding affidavit and
the respondents will suffer no prejudice by a refusal of the
application.
[27] It is trite that an
applicant must stand or fall by his or her founding affidavit. The
applicant is therefore not permitted
to introduce new matter in the
replying affidavit. The courts strike out such new matter. New matter
may be allowed in the absence
of prejudice and in circumstances where
the new matter amplifies and enlarges upon the case made out by the
applicant in the founding
affidavit. In this regard see
Union Finance Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd
2001 (4) SA 842
(T) in an unreported case of
Nondwedwe
Kama and others v Nombulelo Anoria Kama and another (
case
number 1357/20050 of the Eastern Cape High Court .
[28] In paragraph 14.9 to 14.14
the applicant is replying to the respondents’ allegation in
paragraph 6.3 of the answering
affidavit in which the respondents
allege that this court lacks jurisdiction to determine this dispute
on the grounds that the
applicant seeks to enforce Resolution 7 of
2000. The respondents further allege that in terms of section 24 of
the LRA only the
CCMA or bargaining councils have the necessary
jurisdiction to enforce collective agreements.
[29] In paragraphs 14.9 to 14.14
of the replying affidavit the applicant uses Mfazi’s case to
illustrate the failure of SAPS
to co-operate in internal resolution
of disputes involving its employees leading to inordinate delays. He
further alleges that
if a case involving a high ranking officer as
Mfazi is delayed his will be delayed even further. Mfazi’s
dispute arises from
his transfer and its resolution involves the
internal grievance procedure. The allegations in paragraph 6.3 of the
answering affidavit
have nothing to do with either a transfer or the
internal grievance procedure of the SAPS as a SAPS employee seeking
to enforce
Resolution 7 of 2000 needs to refer his or her dispute to
the bargaining council. Paragraphs 14.9 to 14.14 are irrelevant and
do
not amplify the case made out by the applicant in the founding
affidavit. They prejudice the respondents in that they portray SAPS
as an employer which ignores its employees’ problems. They
are therefore struck out.
[30] In paragraph 37 and
annexure TBD 17 of the replying affidavit the applicant is dealing
with the allegation in paragraph 33
of the answering affidavit in
which the respondents deny that the applicant was exposed to
traumatic work related incidents. The
respondents also denied that
the applicant brought such incidents to the attention of the
respondents. In paragraphs 37 and annexure
TBD 17 the applicant
provides proof of the incidents and how they were brought to the
respondents’ attention. Paragraph 37
and annexure TBD 17 are a
direct response to allegations made in the answering affidavit. They
also have an effect of amplifying
the founding affidavit. It is in
the replying affidavit that applicants deal with issues raised in the
answering affidavit. Striking
out paragraph 37 and annexure TBD 17
will defeat the purpose of filing a replying affidavit.
[31] The application to strike
out paragraph 14.9 to 14.14 of the applicant’s replying
affidavit is granted and the application
to strike out paragraph 37
with annexure TBD 17 of the same affidavit is denied.
INTERIM RELIEF
[32] For an application for
interim relief to be granted the applicant must prove a
prima facie
right
open to some doubt, irreparable harm, balance of convenience in his
or her favour and absence of any other satisfactory remedy.
In this
regard see:
Sitlogelo
v Sitlogelo
1914 AD
221
,
Spur Steak
Ranches Ltd v Saddles Steak Ranch
1996 (3) SA 706
(C) and
Kotze
v Minister of Health
1996 (3) BCLR 417
(T).
[33] In proving a
prima
facie
right, the
applicant is required to prove a
prima facie
right to
the final relief he will seek. The approach to adopt to determine the
existence of a
prima
facie
right is laid
down in
Webster v
Mitchell
1948 (1) SA
1189
(W) and modified in
Gool
v Minister of Justice
1995 (2) 682 (C) and is consistently applied in the Labour Court. It
requires a consideration of the facts set out by the applicant
together with any facts set out by the respondent which the applicant
cannot dispute and a decision whether, having regard to the
inherent
probabilities, the applicant should on those facts obtain final
relief at the trial.
[34] I will firstly consider
whether the applicant has proved a
prima
facie
right open to
some doubt.
[35] The undisputed facts which
are set out in the applicant’s affidavit are that the applicant
started having health problems
in January 1993. From 3 March to 17
March 2009 he was on sick leave. From 17 March 2009 to the date of
the termination of his contract
of employment, the applicant did not
perform his duties owing to ill-health. On 1 June 2010 he received a
notice of intended termination
of his services for his failure to
report for duty. He was given an opportunity to make representations
as to why his contract
should not be terminated which he duly made.
He received a letter of the termination of his contract of employment
on 8 July 2010.
[36] The
applicant construes the termination of his contract of employment as
an unfair dismissal. In terms of section 191 (1) (a)
and (b) of the
LRA the applicant should have referred his alleged unfair dismissal
dispute to the SSSBC within 30 days from 8 July
2010. Section 191(1)
and (2) of the LRA grants the SSSBC powers to condone the late
referral of dismissal disputes on good cause
shown. For the applicant
to be successful in his alleged unfair dismissal dispute he must
first clear the condonation hurdle. Although
in their letter dated 8
June 2010 the applicant’s attorneys have states that the
applicant’s dismissal would be vehemently
opposed, no reasons
have been given in the founding affidavit for the applicant’s
failure to challenge his alleged unfair
dismissal. The applicant has
laid no factual foundation to satisfy this court that he will clear
the hurdle of condonation when
seeking relief for his alleged unfair
dismissal dispute.
[37] The applicant attempted to
rely on the representations he made in the letter written by his
attorneys date 6 September 2010.
The representations contain his TIL
and ill-health retirement applications. The letter was presented to
the second respondent about
2 months after the termination of the
applicant’s contract of employment. No valid reasons were given
by or on behalf of
the applicant why such representations were not
made before his contract of employment was terminated. The applicant
cannot rely
on events which took place about 2 months after the
termination of his contract to prove that the termination constituted
an unfair
dismissal.
[38] The
applicant sought to rely on the case of
Mooi v SAPS
[2007]
JOL 20274
(PSCBC) which can be differentiated from the present mainly
because the applicant in the
Mooi
case made his
application for incapacity leave during the subsistence of his
contract of employment. Also in
Urquhart
v Compensation Commissioner
2006 (1) SA 75
the application was made at the correct time.
[39] The applicant seeks an
order reinstating him in full salary, benefits and emoluments from 1
December 2009. It is common cause
that on 1 December 2009 the
applicant was already on unauthorised sick leave. In an unreported
case of
Clendennen v
Minister of Safety and Security and others
(case
number D 667/05), it was held that in the absence of any evidence
that the applicant was granted leave of absence on full
pay, the
applicant was not entitled to remuneration and benefits. This
principle was echoed in a number of cases including
Spies
v National Commissioner of SAPS and others
[2008]
JOL 21525
and
Van
Rensburg & others v Minister of Safety and Security
[2009] 4 BLLR 400
(LC).
[40] In
Chellew
v National Commissioner of SAPS
2006 ILJ 765 (T) the court also confirmed that in the absence of a
right arising either from a contract, collective agreement or
a
statute there is no right to remuneration for the period of absence
due to ill-health. The applicant failed to disclose the basis
of his
entitlement to remuneration during the time he was absent from work
owing to ill-health. He also failed to disclose how
Resolution 7 of
2000 and National Instruction 2 / 2004 entitled him to remuneration
during that period.
[41] The applicant did not
prove that he should
prima facie
be
successful in his alleged unfair dismissal dispute.
[42] With regard to whether the
applicant should
prima
facie
be successful
in his application for ill-health retirement it must be noted that
paragraph 7.6 (a) of Resolution 7 of 2000 provides
as follows:
“Employees
who, as a result of their work, suffer occupational injuries or
contact occupational diseases shall be granted
occupational injury
and disease leave for the duration of the period they cannot work.”
[43] Paragraph 4(6) of National
Instruction 2/2004 provides as follows:
“(a) An
employee who sustains an occupational injury, or who contracts an
occupational disease is entitled to occupational
injury and disease
leave with full pay, from the time that he or she becomes unable to
work-
Until
he or she can resume his or her own work; or
Until
he or she is discharged from the Ser
vice
after
an enquiry as
contemplated in section 34 of the Act.
(b) An employee who is absent
from work due to an alleged occupational injury, or an occupational
disease, must complete and submit
the documents required for
temporary incapacity leave and the documents must be referred to the
health risk manager for verification
and validation of the period of
absence”.
[44] A proper reading of
Resolution 7 of 2000 and National Instruction 2 / 2004 requires
employees to apply for ill-health retirement
before their contracts
of employment are terminated. The procedure for ill-health retirement
involves applying for TILL and an
employee can be required to apply
for leave during the subsistence of his or her contract of employment
and not thereafter. Although
the applicant alleges that he made TIL
applications on 3 September and 11 October 2009
the inherent
probabilities of this case are that he did not. He only attached
those applications to the submissions he made to the
respondents on
23
September
2010, about two months after his contract had been terminated. Had
the applicant applied for TIL in 2009 he would have
enforced his
entitlement through Resolution 7 of 2000 long before his contract was
terminated.
[45] For these reasons, I find
that on the papers before me, the applicant has failed to prove that
he should obtain final relief
in his application for ill-health
retirement and in his unfair dismissal dispute. He has therefore
failed to prove a
prima facie
right
open to some doubt.
[46] It was submitted for the
applicant that he will suffer irreparable harm if the interim relief
is not granted and the ultimate
relief is eventually granted as he
will be financially ruined and unable to afford medication, a
situation which will lead to increased
anxiety, depression and
distress.
[47] The applicant has himself
to blame for the financial difficulties he will suffer should this
application be unsuccessful because
he failed to take the necessary
steps to have his salary reinstated after it was suspended at the end
of November 2009. He elected
to live without a salary from December
2009 and being in financial ruins is a direct consequence of his
election. He may therefore
may not rely on it prove irreparable harm.
Should the applicant eventually secure success with retrospective
effect at arbitration
any harm resulting from the refusal of this
application will be repaired.
[48] I agree with counsel for
applicant that the applicant will suffer prejudice which the
respondents will not should this application
be granted. However, the
applicant is responsible for his own prejudice and can therefore not
use it as a defence.
[49] The submission made on
behalf of the applicant that there is no other adequate remedy
available to him is correct. Neither
the CCMA nor bargaining councils
have jurisdiction to grant interim relief. Section 158 (1) (a) (i) of
the LRA has granted such
jurisdiction to the Labour Court.
[50] For these reasons, on the
papers before me the applicant has failed to make out a case for the
grant of interim relief. The
application must accordingly fail. There
is no reason why costs should not follow the result.
[51] I
make the following order:
The
application is dismissed with costs.
________________
LALLIE
AJ
Date
of hearing: 3 March 2011
Date
of judgment: 23 May 2011
Appearances:
For
applicant: Adv Pienaar SC
Instructed
by: Gouws Attorneys
For
first and
Second
respondents: Adv Gqamana
Instructed
by : The State Attorney
20