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[2012] ZALCCT 15
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Ndikumdavyi v Valkenberg Hospital and Others (C970/2010) [2012] ZALCCT 15; [2012] 8 BLLR 795 (LC); (2012) 33 ILJ 2648 (LC) (23 April 2012)
13
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case No: C970/2010
In the matter between:
ALAIN GODEFROID
NDIKUMDAVYI
…............................................................
Applicant
and
VALKENBERG HOSPITAL
…...............................................................
First
Respondent
MINISTER OF HEALTH
…...............................................................
Second
Respondent
MEC FOR DEPARTMENT OF
HEALTH FOR
THE PROVINCE OF THE
WESTERN CAPE
.......................................
Third
Respondent
Heard
: 2 February
2012
Delivered
: 23
April 2012
Summary
:
Foreign Health Professional-
formal refugee-
termination of employment on basis that permanent contract
void
ab initio
in light of policy of national
health department and provisions of the Public Service
Act-interpretation of “dismissal”
where
par
delictum
rule applies
JUDGMENT
___________________________________________________________________
RABKIN-NAICKER J
Introduction
1. This matter was set
down for trial on the 31 January 2012. On that day it was agreed by
the legal representatives of applicant
and the first and third
respondents, that a stated case be drafted and that the matter be
argued on 2 February 2012. The stated
case made reference to an
agreed bundle of documents certain of which are referred to in this
judgement. It should be noted that
the second respondent, the
Minister for Health, did not oppose the application.
2. The applicant
(Ndikumdavyi), is a Burundian citizen. In terms of the National
Health Department’s “policy on the
recruitment and
employment of foreign health professionals in the South African
health sector” (the Policy), he qualifies
as a Foreign Health
Professional. At the date of the dispute and of the trial, he had
been certified as a refugee in terms of
section 24
(3) (a) of the
Refugees Act 130 of 1998
.
3. Ndikumdavyi obtained
the degree of Baccalaureus Curationis in nursing from the University
of the Western Cape on the 13 March
2009. He then received a letter
from the sub directorate: foreign workforce management of the
National Department of Health on
24 March 2009, advising him that he
could take up employment in the Republic.
4. On the 31 August 2009,
Ndikumdavyi received a National Department of Health endorsement
certificate entitling him to seek employment
and apply for
registration, subject to certain conditions. These were that he may
seek employment in the South African Health Sector;
must submit a job
offer to the Foreign Workforce Management Program of the National
D
epartment of Health (FWMP) for further endorsement; and must
maintain the validity of a refugee permit. On 16 February 2010, he
received an annual practising certificate from the South African
nursing Council which was valid for the period 1 January 2010 to
31
December 2010.
5. Pursuant to a written
job application for the post of professional nurse (general) at first
respondent, he was offered employment
by the acting senior medical
superintendent and the job offer indicated the effective date to be 1
July 2010. On 29 June 2010,
Ndikumdavyi signed the acceptance form
for the post. He commenced employment in the post of professional
nurse on 1 July 2010.
The applicant did not allege that he submitted
the job offer to the FWMP for further endorsement.
6. Having commenced
employment, and on the 20 July 2010 he received a letter from the
senior medical superintendent of first respondent
informing him that:
“
Please
note that in terms of the National Department of Health's policy on
the recruitment and employment of foreign health professionals
in the
South African health sector that only a fixed term contract and not
permanent employment can be offered. As the formal recognition
of
your refugee status in South Africa expires on the 24 December 2010
such temporary contract cannot extend past the said date.
Approval
for such temporary appointment must furthermore be obtained from the
National Department of Health.
In light of the
aforementioned circumstances, we are withdrawing our job offer for
permanent employment with immediate effect. You
are furthermore
informed that a job offer for temporary appointment shall only be
issued if the necessary approval therefore has
been obtained.”
7. On 26 July 2010, the
University of Cape Town law clinic sent a letter to first respondent
advising it,
inter alia,
that their letter dated 21 July 2010
instructing Ndikundavyi not to come back to work pending further
notice, amounted to a breach
of his employment contract and
effectively constituted a procedurally and substantively unfair
dismissal. First respondent replied
on 30th of July 2010 advising
that the offer of employment was made contrary to the Policy, and was
therefore not a valid offer.
The letter from first respondent further
stated that: “Administrative Law permits the employer to
correct mistakes made in
administering its duties. Approval for the
appointment of Mr Ndikudavyi has to be obtained before an offer for
temporary employment
can be made. Valkenberg Hospital has applied for
such approval.” There is no further correspondence of record
before the
launching of the referral on the 1 November 2010.
8. The Policy had been
revised on 25 February 2010 and duly circulated to third respondent's
heads of office. The Policy (which
was approved by the National
health Council on 5 February 2010) states in clause 15 that:
"the employment of
foreign health professionals recruited by the public health sector
shall be limited to health facilities
in designated underserved rural
areas in South Africa, unless otherwise approved by the head of the
provincial Department of Health
and subject to endorsement by the
National Department of Health.
A head of a Provincial Department
of Health may not delegate the responsibilities in this regard
."
Issues in dispute
9. In their pre-trial
minute, the parties raised certain issues of law that were in dispute
(albeit under the heading ‘facts
in dispute’). These
included the following:
“
Whether
the applicant was an employee of the first respondent as contemplated
in section 213 of the Labour Relations Act number
66 of 1995, (“
the LRA” ) at the time of his dismissal by the first
respondent.
Whether the National
Department of Health's policy on the recruitment and employment of
foreign health professionals in the South
African health sector is
discriminatory, or alternatively, constitutes an unfair labour
practice in terms of section 188 (1) of
the LRA.”
10. The primary relief
sought by the applicant was recorded in the pre-trial minute as
follows:
“
A
declarator that the National Department of Health's "policy on
the recruitment and employment of foreign health professionals
in the
South African health sector" constitutes unfair discrimination
against foreign nationals and refugees, in violation
of section 187
(f) of the LRA.
Reinstatement backdated
to 21 July 2010, being the date of dismissal.
Payment of the maximum
monetary compensation as a solatium for the automatically unfair
dismissal."
11. The issues which the
court was required to decide in terms of the pre-trial minute were as
follows:
“
whether
the dismissal constituted unfair discrimination against the applicant
directly and/or indirectly on the grounds of his nationality
and
refugee status, in contravention of subsection 187 (f) of the LRA.
whether the dismissal
constituted unfair discrimination against the applicant directly
and/or indirectly on the grounds of his nationality
and refugee
status, in that it was based on an alleged policy laid down by the
second respondent described as “ the national
departments
health policy on the recruitment and employment of foreign health
professionals in the South African health sector",
which policy
is discriminatory against foreign nationals and refugees, in
contravention of subsection 187 (f) of the LRA.”
Evaluation
12. The approach adopted
by the applicant that a declarator could be sought on the basis that
the policy in question was discriminatory
and in contravention of
subsection 187 (f) of the LRA appears to have been misconceived.
13. Section 187 of the
LRA provides inter alia that a dismissal is automatically unfair if
the reason for the dismissal is:
“
that
the employer unfairly discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not
limited to
race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
political
opinion, culture, language, marital status or family responsibility”
(section
187(1)(f))
14. The section is not a
prohibitory provision.
1
Nor does it create
positive rights such as those contained in section 185 of the LRA,
i.e.
the
right of every employee not to be unfairly dismissed or to be
subjected to an unfair labour practice. A declarator regarding
the
violation of this section is simply not apposite. I must have regard
to the principle that pleadings contain the legal basis
of the claim
under which an applicant chooses to invoke the court's competence
2
.
Given that the declarator
was not sought with reference to the provisions of section 157(2) of
the LRA thus placing reliance on
an alleged violation of any
fundamental right entrenched in chapter 2 of the Constitution, by the
state as employer, this court’s
competence is restricted to
deciding whether there was a dismissal and if so, whether it was
automatically unfair.
15. First and Third
Respondents submitted before court that due to the Policy binding on
them, the “appointment” of
Ndikundavyi was void ab initio
and he could not therefore have been dismissed in terms of the LRA.
His appointment was “an
administrative error” and the
contract was invalid. Reliance was also placed on section 10 of the
Public Service Act which
provides that:
“
No
person shall be appointed permanently, whether on probation or not,
to any post on the establishment in a department unless he
or she-
(a) is a South African
citizen or permanent resident; and
(b) is a fit and proper
person.”
16. The jurisprudence of
this court assists Ndikundavyi. In relation to persons who are
"illegal immigrants", the Labour
Court has found:
“
Taking
into account the provisions of s 23(1) of the Constitution, the
purpose, nature and extent of relevant international standards
and
the more recent interpretations of the definition of 'employee' by
this court, I do not consider that the definition of 'employee'
in s
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
recognized 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 s
38(1) of the Immigration Act did not automatically
disqualify him
from that status.”
3
17. On the approach taken
in the Discovery Health matter, and taking into account the status of
formal refugees in terms of the
Refugees Act
4
and
the international law
obligations referred to in that statute,
as
well as the fact that refugees as a class in this country and the
world over are a particularly vulnerable group, I am satisfied
that
Ndikundavyi must qualify for the status of "employee" in
terms of the LRA. That being said, there is a need to go
further and
address the issue of whether there has been a “dismissal”
in terms of the LRA.
Section 186(1)
(a) of the LRA provides that:
“
186 Meaning
of dismissal and unfair labour practice
(1) 'Dismissal' means
that-
(a) an employer has
terminated a contract of employment with or without notice; “
18. In the
Discovery
matter the court dealt with the inclusion of the words ‘contract
of employment’ in the definition of dismissal in the
following
way:
“
The
commissioner's finding that Discovery Health dismissed Lanzetta
cannot be faulted. The definition of dismissal, defined in
s 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 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. It is common cause that Lanzetta was
engaged in
terms of a contract of employment and Discovery Health terminated
that contract.”
5
19. In
Discovery
it was not necessary to
decide whether the contract in question was
void
as
Lanzetta had signed it when he was still lawfully able to work
6
.
Where, as in this case,
it is alleged that the contract was void
ab
initio,
we
are still confronted with the problem of the definition of
“dismissal” in the LRA. Given the definition, it remains
arguable that there was no contract in law to terminate. As the law
stands, the interpretation of the word ‘employee’
in line
with constitutional imperatives needs to be accompanied by a reading
of
section 186(1)
(a) which gives expression to the objects of the
LRA, if employees such as Ndikundavyi can be recipients of the same
remedies as
those employees whose contracts of employment are not
subject to the par delictum rule.
Ngcobo
J (as he then was) had this to say about these imperatives:
“
[110]
The objects of the LRA are not just textual aids to be employed where
the language is ambiguous. This is apparent from the
interpretive
injunction in
s 3
of the LRA which requires anyone applying the LRA
to give effect to its primary objects and the Constitution. The
primary objects
of the LRA must inform the interpretive process and
the provisions of the LRA must be read in the light of its objects.
Thus where
a provision of the LRA is capable of more than one
plausible interpretation, one which advances the objects of the LRA
and the
other which does not, a court must prefer the one which will
effectuate the primary objects of the LRA.
7
20. It is arguable then,
that the words “employment contract” in section 186(1)(a)
may be read, not in the strict sense,
but to mean the wider term
“employment relationship”. This will give effect to the
primary objectives of the LRA and
provide equal protection for formal
refugees and other vulnerable groups of employees. The need to take
such an interpretative
approach may soon be redundant if the proposed
amendment to section 213 of the LRA in the first Amendment Bill to
the LRA currently
before Parliament is enacted. It is drafted thus:
“
'contract
of employment'
means—
(a)
a
common law contract of employment; or
(b)
any
other agreement or arrangement under which a person agrees to work
for an employer but excluding a contract for work as an independent
contractor;
"
21. The approach taken by
the Labour Appeal Court in dealing with the
par
delictum
rule
in “Kylie” v CCMA and Others”
8
was to found a remedy for
the Appellant on the basis that an employment relationship existed
between a sex worker and her employer,
even if the contract of
employment was void for illegality. The court found that our law is
not wholly inflexible in its refusal
to relax the rule which deems
contracts void when their conclusion, performance or object is
expressly or impliedly prohibited
by legislation or is contrary to
good morals or public policy. The issue of remedy was dealt with by
Davis JA as follows:
“…………
.Accordingly,
the question arose as to whether a court could, in the light of the
existing approach to illegal contracts, provide
some remedy to a
party, such as appellant, if she could prove her allegation that she
had been unfairly treated within the framework
of the unfair labour
practice jurisprudence guaranteed in terms of s 23(1) of the
Constitution and enshrined in the LRA.
That enquiry is not
necessarily incongruent with the finding in Jordan's, that the Act
which criminalizes prostitution is constitutional.
As noted, the
criminalization of prostitution does not necessarily deny to a sex
worker the protection of the Constitution and,
in particular s 23(1)
thereof, and by extension its legislative implementation in the form
of the LRA.
The express purpose of
the LRA 'is to advance economic development, social justice, labour
peace and the democratisation of the
workplace' (s 1 of the LRA). In
itself, this set of principles can be traced to s 23 of the
Constitution. In particular, s 23(1),
which provides that everyone
has the right to fair labour practices, was designed to ensure that
the dignity of all workers should
be respected and that the workplace
should be predicated upon principles of social justice, fairness and
respect for all. See NEHAWU
v UCT (2003) 24 ILJ 95 (CC);
2003 (2)
BCLR 154
(CC) at paras 33-40.
If the purpose of the LRA
was to achieve these noble goals, then courts have to be at their
most vigilant to safeguard those employees
who are particularly
vulnerable to exploitation in that they are inherently economically
and socially weaker than their employers…..”
9
22. In
Kylie
the
remedy suggested, but not decided, was as follows:
“
These
considerations do not mean that the full range of remedies available
in terms of the LRA should necessarily be available in
every such
case. Expressed differently, this judgment does not hold that, when a
sex worker has been unfairly dismissed, first
respondent or a court
should or can order her reinstatement, which would manifestly be in
violation of the provisions of the Act.
But s 193 of the LRA provides
for considerable flexibility to first respondent or a court. For
example, although an arbitrator
or court should require the employer
to reinstate or re-employ an employee on a finding that a dismissal
is unfair, the court or
arbitrator has a discretion to refuse
reinstatement where it is not reasonably practicable for the employer
to reinstate or re-employ
the employee. Manifestly, it would be
against public policy to reinstate an 'employee' such as appellant in
her employ even if
she could show, on the evidence, that her
dismissal was unfair. But that conclusion should not constitute an
absolute prohibition
to, at least, some protection provided under the
LRA, a protection which can reduce her vulnerability, exploitation
and the erosion
of her dignity.
For similar reasons it
may well be that compensation for a substantively unfair dismissal
would be inappropriate in the present
kind of case. If compensation
for substantive unfairness is to be regarded as a monetary equivalent
for the loss of employment,
it may be, although given the precise
relief sought I express no final view, that such compensation would
be inappropriate in a
case where the nature of the services rendered
by the dismissed employee are illegal. By contrast, monetary
compensation for a
procedurally unfair dismissal has been treated as
a solatium for the loss by an employee of her right to a fair
procedure. (Johnson
& Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89
(LAC) at para 41.) This kind of compensation is therefore independent
of the loss
of illegal employment in this case and would therefore
appear to be applicable in the appropriate case where the services
rendered
by the employee are classified as illegal.”
10
23. It is evident from
the judgment in Kylie that the LAC was prepared (obiter) to consider
the termination of an “illegal”
contract of employment as
a “dismissal” for the purpose of the LRA. On the basis of
the Court’s approach in Kylie,
I have no hesitation in reading
the definition of dismissal in the LRA in line with the objectives of
the LRA (derived from the
protection of section 23 of our
Constitution) and its’ interpretation clause. In my view, this
amounts to a to a reading
of the definition of “dismissal”,
and in particular the term “contract of employment”, in a
way that allows
a term derived from our common law to be given an
extended meaning in certain circumstances, a meaning consistent with
section
23 of our Constitution and the objectives of the LRA.
24. It is necessary to
distinguish the current matter from
Kylie
, in that the court
in
Kylie
was concerned with the rendering of illegal services
in what the law regards as a criminal activity. In this matter, we
are dealing
with the rendering of legal services, but where a
permanent appointment is prohibited by statute. It is in this context
that the
court must exercise its’ discretion in terms of
section 193 of the LRA.
25. Section 193 of the
LRA provides as follows:
“
193 Remedies
for unfair dismissal and unfair labour practice
(1) If the Labour Court
or an arbitrator appointed in terms of this Act finds that a
dismissal is unfair, the Court or the arbitrator
may-
(a) order the employer to
reinstate the employee from any date not earlier than the date of
dismissal;
(b) order the employer to
re-employ the employee, either in the work in which the employee was
employed before the dismissal or
in other reasonably suitable work on
any terms and from any date not earlier than the date of dismissal;
or
(c) order the employer to
pay compensation to the employee.”
26. In my view the
so-called ‘administrative error’ conceded by first
respondent led to an unfair termination of the
employment
relationship with Ndikundavyi. It is manifestly an obligation on an
employer of this type to be aware of the provisions
of the PSA and of
a policy which it is bound to apply.
The
letter written by first respondent on the 30 July 2010 acknowledges
as much. I am precluded by the content of section 10 of
the PSA in
making a finding of substantive unfairness.
11
However, I find that the
first respondent has failed to establish that the dismissal was
procedurally fair.
I
note that first respondent made no attempt whatsoever to afford
Ndikundavyi a right to be heard before summarily dismissing him.
In
exercising my discretion under section 193(1) of the LRA, I take into
account that first respondent quite properly acknowledged
that it
made mistakes “in administering its duties” and find that
the obligation to ensure the endorsement of the applicant’s
appointment,
by
dint of its own version,
rested
on it.
27. In this case, a
Burundian refugee, trained and qualified in South Africa, was unable
to perform his calling assisting our citizens
as a nurse in a state
psychiatric facility. The case has not provided the court with an
opportunity to examine the constitutionality
of the Policy which
prevented his continued employment. Nor did it, as stated above,
allow for a finding that the dismissal was
substantively unfair. What
it has done however, is to confirm that formal refugees must be the
recipients of the rights afforded
by the LRA. In exercising the
discretion to find an appropriate solatium in a matter such as this,
a court may be mindful of the
sentiments expressed in the minority
judgment of the
Constitutional Court in Union of Refugee Women and
Others v Director: Private Security Industry Regulatory Authority and
Others
2007 (4) SA 395
(CC)
when it considered the provisions of
the Refugee Act and stated inter alia:
“
Refugee
status may be conferred upon a person in terms of the
Refugees Act.
Section
3 of that Act provides that a person will qualify for refugee
status if that person -
'(a) owing to a
well-founded fear of being persecuted by reason of his or her race,
tribe, religion, nationality, political opinion
or membership of a
particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail
himself or herself of
the protection of that country, or, not having a nationality and
being outside the country of his or her
former habitual residence is
unable or, owing to such fear, unwilling to return to it; or
(b) owing to external
aggression, occupation, foreign domination or events seriously
disturbing or disrupting public order in either
a part or the whole
of his or her country of origin or nationality, is compelled to leave
his or her place of habitual residence
in order to seek refuge
elsewhere'
A reading of these
provisions gives some understanding of the predicament in which
refugees generally find themselves. Refugees
have had to flee their
homes, and leave their livelihoods and often their families and
possessions either because of a well-founded
fear of persecution on
the grounds of their religion, nationality, race or political opinion
or because public order in their home
countries has been so disrupted
by war or other events that they can no longer remain there. Often
refugees will have left their
homes in haste and find themselves
precariously in our country without family or friends, and without
any resources to sustain
themselves….
“
The
circumstances that qualify an applicant for refugee status in
s 3
of
the Act are drawn from the provisions of the 1951 UN Convention and
the OAU Convention. It is important to note that political
events on
our continent have resulted in many people becoming refugees. South
Africa has played its own tragic role in this history.
Many South
Africans fled South Africa during the apartheid era to avoid
persecution at home. They were welcomed warmly and given
support and
sustenance by countries all over our continent and elsewhere.
Africa's special refugee problem was recognized in the
late 1960s by
the Organization of African Unity which led to the adoption of the
OAU Convention regulating refugees.”
12
28. In all the
circumstances of the matter, I make the following order:
The dismissal of the
applicant was procedurally unfair;
The first respondent is
ordered to pay the applicant an amount equal to twelve months of his
remuneration at the time of his dismissal;
Costs are to be paid by
the first and third Respondents jointly and severally.
__________________
Rabkin-Naicker J
Judge of the Labour Court
of South Africa
Appearances:
On behalf of the
applicant: Adv R Nyman
Instructed by: UCT Legal
Aid Clinic
On behalf of 1
st
and 3
rd
respondents: Adv de Wet
Instructed by: The State
Attorney
1
Contrasting
with that contained in
section 6
of the of the Employment Equity Act
which provides that
'no person may unfairly discriminate….'
2
See
GCABA v MINISTER FOR SAFETY AND SECURITY AND OTHERS
2010 (1) SA 238
(CC) at para 75
3
Discovery
Health Limited v CCMA and others
[2008] ZALC 24
;
(2008) 7 BLLR 633
(LC) at para 49
4
No.
130 of 1998
5
At
paragraph 55
6
At
paragraphs 8 and 9
7
Chirwa
v Transnet 2008(4)SA367 (CC) at paragraph 110
8
(2010)
31 ILJ 1600 (LAC)
9
At
paragraphs 38-41
10
At
paragraphs 52 and 53
11
There
was no direct or collateral challenge to the constitutionality of
that section by the applicants
12
At
paragraphs 100,101 and 105