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[2012] ZALCD 1
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Krishna v University of Kwazulu-Natal (D62/09) [2012] ZALCD 1; (2012) 33 ILJ 1688 (LC) (1 January 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
REPORTABLE
case no: D62/09
In the matter between:
INDIRA
KRISHNA
….................................................................................................
Applicant
and
UNIVERSITY
OF KWAZULU NATAL
…...............................................................
Respondent
Heard: 24 to 28 October 2011
Delivered: January 2012
Summary: Applicant alleging unfair dismissal for operational
reasons; failing to establish that she was dismissed.
JUDGMENT
GUSH J
The applicant in this matter was employed by the respondent in July
1990 in the capacity of an assistant administrative officer
in the
Department of Microbiology which was part of the respondent’s
School of Medicine. The Department of Microbiology
included state
laboratory services which were operated by the respondent on behalf
of the Department of Health. At all times
during her employment by
the respondent the applicant’s salary was subvented by the
Department of Health.
Pursuant to a decision to establish a single national public health
laboratory service, the National Health Laboratory Service
(NHLS)
Act was promulgated. This required the transfer of the laboratory
service which had been operated by the respondent on
behalf of the
Department of Health to the newly established National Health
Laboratory Service (NHLS). During 2007, in accordance
with the NHLS
Act, the respondent commenced consultations with staff members
employed in its Department of Microbiology with
a view to their
transfer to the NHLS along with the laboratory service.
The applicant, being such an employee, was one of the employees who
were consulted. The consultation process culminated in August
2007
when the applicant signed a document which reads as follows:
‘
University
KwaZulu-Natal/
National Health Laboratory
Service
I, Indira Krishna, 6804000125089
ID number advised that with effect from September 2007 I wish to
transfer to the employment of
and the conditions of service of the
National health laboratory service (NHLS)
and was duly transferred to the
NHLS with effect from 1 September 2007
.’
On 12 September 2008, the applicant referred a dispute to the CCMA
in which referral the applicant alleged that a dispute concerning
her unfair dismissal had arisen on 1 September 2007 (the date on
which the transfer took place). The applicant described her
dismissal as being ‘dismissal based on operational requirement
resulting in applicant being transferred to a new employer.
Applicant now aware that her post is not made redundant and has been
advertised’.
This dispute was conciliated and a certificate of non resolution
issued. Pursuant to this certificate, the applicant referred
this
dispute to this Court. In her statement of case, the applicant
sought ‘the restoration on the same terms and conditions
of
employment no less favourable to those enjoyed by the applicant
prior to 1 September 2007’ (sic) or put more simply:
on the
strength of the averment that the applicant had been unfairly
dismissed the applicant applied to be to be reinstated in
the employ
of the respondent. The applicant described her cause of action as
follows:
‘
The
applicant contends that the transfer was both substantively and
procedurally unfair in that:
22.1 there was no valid reason
therefore;
22.2 it was presented to the
applicant as a fait accompli
;
22.3 the respondent was actuated
by ulterior motives and/or reasons;
22.4 the respondent, told the
applicant to transfer on paying of an operational termination when in
reality the respondent knew
that it intended to replace the applicant
as soon as she vacated her position (sic) ‘
1
In response to the applicant’s statement of claim, the
respondent opposed the applicant’s application on the merits
and averred that the Court did not have jurisdiction to hear the
matter. The averment regarding jurisdiction was based on two
issues
raised in
limine
which it referred to as ‘special
pleas’. The essence of the two issues or ‘special pleas’
was:
Firstly a denial by the respondent that it had dismissed the
applicant. The respondent pleaded that the applicant had been
transferred to the NHLS consequent upon the transfer of the
laboratory service as a going concern in accordance with the
provisions of section 197 of the LRA and therefore not only had the
applicant not been dismissed but that specifically there
was no
retrenchment nor had the respondent implemented any retrenchment
procedures in respect of the laboratory staff who had
been
transferred to the NHLS; and
Secondly that the transfer had taken effect after a series of
consultations following which the applicant had signed a consent
to
be transferred and that accordingly the applicant had not been
dismissed and that there was no “employment relationship”
between the applicant and respondent which could give rise to a
claim for unfair dismissal .
Immediately before the matter commenced, the parties filed a further
pre-trial conference minute which recorded the primary matters
in
dispute as being:
‘
The
applicant maintains that she was not transferred in terms of
section 197 of the Labour Relations Act.
The applicant contends that
the post did not become redundant.
Whether Anita Pillay was
employed in the applicant’s post or in a new post.
The respondent maintains that
a transfer of the applicant took place in terms of section 197.
Whether the dismissal alleged
by the applicant was unfair.’
The parties agreed that the applicant bore the onus to establish a
dismissal and that the respondent bore the onus of establishing
its
so-called ‘special pleas’.
The issues raised by the respondent in
limine
were neither
special pleas nor properly points in
limine
. The basis of the
so-called points in
limine
or special pleas was that the
respondent:
Firstly placed in dispute the existence of a dismissal which simply
had the effect of requiring the applicant to establish
the
existence of the dismissal
2
;
and
Secondly that a transfer effected in accordance with the provisions
of section 197 of the Labour Relations Act (LRA),
3
does not constitute a dismissal as defined by the LRA.
The intention of behind section 197 is to
preserve
the
employment contract and to provide for its transfer in specific
circumstances. The transfer of a contract of employment pursuant
to
transfer of a business does not terminate the contract of employment
and accordingly cannot be a dismissal.
Section 197 specifically records that the consequences of a
consequential transfer of a contract of employment where a the
transfer of a business or part thereof takes place thereof are as
follows:
‘
(a)
the new employer is automatically substituted in the place of the old
employer in respect of all contracts of employment in
existence
immediately before the date of transfer;
(b) all the rights and
obligations between the old employer and an employee at the time of
the transfer continue in force as if
they had been rights and
obligations between the new employer and the employee;
(c) anything done before the
transfer by or in relation to the old employer, including the
dismissal of an employee or the commission
of an unfair labour
practice or act of unfair discrimination, is considered to have been
done by or in relation to the new employer;
and
(d) the transfer does not
interrupt an employee's continuity of employment, and an employee's
contract of employment continues with
the new employer as if with the
old employer.’
4
The applicant having referred the dispute as an unfair dismissal and
the as the respondent denied that the applicant was dismissed
the
onus as provided for in section 192 of the LRA applies. And the
applicant had to establish the existence of a dismissal.
The
provisions of section 192 of the LRA reads as follows:
‘
Onus
in dismissal disputes
(1) In any proceedings
concerning any dismissal, the employee must establish the existence
of the dismissal.
(2) If the existence of the
dismissal is established, the employer must prove that the dismissal
is fair.’
Accordingly, therefore, the parties in their pre-trial minute
correctly agreed that the applicant bore the onus to first establish
that she had been dismissed.
As regard the Court’s power to hear the matter, in light of
the provisions of section 158(2)
5
of the LRA, (as opposed to the CCMA) Counsel appearing for the
applicant, both at the commencement of the trial and on a number
of
occasions during the trial, confirmed that it was the applicant’s
case that she had been dismissed for operational reasons
6
.
Mr Manikam repeatedly confirmed that the applicant’s claim was
based on the submission that the applicant’s dismissal
was for
operational reasons which he was at pains to describe as a
‘dismissal in the guise of a transfer’. It was,
he
somewhat startlingly explained, the applicant’s case that ‘the
applicant had agreed to the transfer in order to
avoid her dismissal
for operational reasons and that therefore the transfer constituted
a dismissal for operational reasons’
Only the applicant gave evidence. Despite the crisp nature of the
dispute viz. that in order to succeed, applicant had to establish
that not only had she been dismissed by the respondent but that her
dismissal was for operational reasons. The evidence of the
applicant
was largely irrelevant as were many of the vast number of documents
handed in by both parties.
The applicant’s evidence concentrated largely on the situation
that prevailed in the respondent’s Department of Microbiology
and the relationships between her and various members of the
Department where she performed her duties and the duties performed
by the various members of staff which existed prior to the
consultations which culminated in her consenting to be transferred.
None of this evidence was relevant to the issue in question.
The applicant confirmed that the respondent had consulted with staff
members regarding the transfer of the laboratory service
from the
respondent to the NHLS prior to the actual transfer taking place.
The applicant explained that the respondent had applied a number of
criteria to determine which staff should be transferred with
the
laboratory service. The criteria included identifying those staff
members whose salaries were subvented by the Department
of Health
and the amount of time the staff member spent on laboratory service
work as opposed to university work.
It was the applicant’s evidence that she spent more time on
university work than laboratory work and that it was her subordinate
who performed more laboratory work. She conceded however firstly
that she was aware of the fact that her post was entirely subvented
by the Department of Health and secondly that while her subordinate
performed work for the laboratories she was ultimately responsible
for the work her subordinate performed.
What was crucial was that during her evidence, the applicant on more
than one occasion confirmed that she had consented to be
transferred
in order to avoid being retrenched (dismissed based on operational
requirements
7
).
Unfortunately, the applicant’s own evidence established beyond
any shadow of doubt that she had not only been transferred
in
accordance with the provisions of section 197 when the laboratory
service was transferred but that she had agreed to this
transfer as
an alternative to her possible dismissal for operational reasons
should she not have been transferred.
The applicant suggested that she had been coerced into agreeing to
be transferred. It was the applicant’s evidence that
she had
agreed to be transferred in the face of a threat that she would be
dismissed for operational reasons if she did not agree.
The
applicant’s evidence was that the following documents, which
formed part of her bundle, constituted the threat that
forced her to
consent to being transferred:
The minutes of a meeting held on 2 July 2007 conducted by
respondent’s director labour relations, human resources, Mr.
Paul Finden, and attended by the applicant. This document recorded
that the business operation of the laboratory service was
to be
transferred from the respondent to the NHLS. The staff were advised
that they would be requested to exercise their choice
as to whether
they wished to transfer to the NHLS and to consider this decision
very carefully. They were advised that if they
chose not to
transfer to the NHLS and if the respondents could not find
alternative employment for them the respondents would
have to
consider the possible termination of employment or operational
grounds. The staff were advised that the NHLS was offering
continued employment which was a genuine alternative to the
possibility of a retrenchment; and
a letter sent by e-mail from Mr Finden dated 13 August 2007. This
letter reads:
‘
I did
explain in detail, clearly and succinctly to all the staff concerned
that we could not create posts for them in UKZN, that
if they elected
not to be transferred that we would have to immediately serve them
with notice of possible termination of employment
for operational
reasons. The UKZN would then enter into a consultation process with
them in terms of section 189 of the LRA, determining
inter alia, if a
genuine alternative existed for their placement within UKZN. If not
they ran the risk of having their employment
services terminated.
Therefore, one would have to look at posts available within an
operationally possible timeframe for the UKZN.
A genuine alternative
can only be a vacant established post with the necessary funding.’
By no stretch of the imagination can these documents be deemed to
constitute a threat. They did no more than advise the applicant
of
the possible consequences should she not be transferred. In fact by
doing the respondent did nothing less than would be expected
of an
employer in such circumstances.
Little of the applicant’s extensive evidence inter alia
concerning the various staff employed in the Department of
Microbiology
and their respective responsibilities was of relevance
to the cardinal issue viz whether the applicant was dismissed by the
respondent
or whether she consented to the transfer to the NHLS.
It was incumbent upon the applicant not only to establish the
existence of her dismissal but that she had been dismissed for
operational reasons. She did neither.
At the conclusion of the applicant’s evidence, the applicant
called no further evidence and closed her case. Unsurprisingly,
the
respondent indicated that it did not intend calling any witnesses
and too closed its case.
It was clear from the evidence of the applicant that she had
previously referred a dispute with the NHLS, as her employer, to
the
CCMA but had elected not to pursue this dispute. It was also the
applicant’s evidence that the referral of this dispute
citing
the respondent as the employer who had dismissed her was
precipitated by her becoming aware of an advertisement published
by
the respondent in 2008 for the position of administrative officer in
the respondent’s Department of Microbiology a position
similar
to that she had occupied at the time the laboratory service was
transferred to the NHLS. The applicant indicated that
she regarded
this as being ‘her post’ and that it was the act of
advertising this post that established that she
had been unfairly
retrenched. What clearly escaped the applicant (and her counsel) was
firstly and most importantly that she
had consented to her transfer.
She had clearly not been dismissed for reasons based on operational
requirements or at all.
It was clear from the applicant’s evidence that she was
unhappy that she had been transferred to the NHLS. Her evidence
however did not establish that she was dismissed let alone dismissed
for operational reasons. Despite her evidence, the applicant’s
counsel remained adamant at all times that the applicant had been
dismissed ‘dismissal in the guise of a transfer’
and
that it was an operational reasons dismissal and not a transfer or
even a constructive dismissal. .
Having failed to establish that she was dismissed, the applicant’s
claim cannot succeed and falls to be dismissed.
As regards costs, it is just and equitable, taking into account the
fact that the applicant was transferred to the NHLS on 1
September
2007, ceased to be employed by the respondent from that date,
continues to be employed by the NHLS; the nature of the
applicant’s
claim; and the extensive delays in bringing this action that the
applicant pay the respondent’s costs.
In the circumstances, I make the following order
The applicant’s claim is dismissed with costs.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANT: Advocate M Manikam
Instructed by T Giyapersad and Associates
RESPONDENT: Advocate S Govender SC
Assisted by Advocate D Pillay
Instructed by Pillay Nichols and Hlalane
1
Statement
of claim paragraphs 22 and 23 pages 12 and 13 of the indexed
pleadings.
2
See
section 192 of the LRA.
3
Act
66 of 1995.
4
Section
197 (2) (a)-(d) of the LRA.
5
Section
158(2) provides that if at any stage after a dispute has been
referred to the Labour Court, it becomes apparent that the
dispute
ought to have been referred to arbitration, the Court may-
(a) stay the proceedings and refer the dispute to
arbitration; or
(b) with the consent of the parties and if it is
expedient to do so, continue with the proceedings with the Court
sitting as an
arbitrator, in which case the Court may only make any
order that a commissioner or arbitrator would have been entitled to
make.
6
See
section 189 read with section 191(5)(b)(ii) and (12) of the LRA.
7
Section
189 LRA