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[2014] ZALCJHB 8
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PSA obo Lessing v Safety and Security Services Bargaining Council and Others (JR 2934/11) [2014] ZALCJHB 8; (2014) 35 ILJ 2260 (LC) (8 January 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR 2934/11
In the matter between:
PSA
obo
LESSING
....................................................................................................
Applicant
And
SAFETY
AND SECURITY SERVICES BARGAINING
COUNCIL
........................................................................................
............
First Respondent
SOUTH
AFRICAN POLICE
SERVICES
..................................................
Second Respondent
E.
MAREE
....................................................................................................
Third Respondent
Date
heard: 15 October 2013
Date
of judgment: 08 January 2014
Summary:
Application to review the ruling that the bargaining council lacked
jurisdiction. Ruling that the bargaining council lacked
jurisdiction
because termination of the employment contract was by operation of
the law. The decision to evoke the deeming provision
of the
regulations valid until set aside.
JUDGMENT
Molahlehi
J
Introduction
[1]
This
is an application in terms of
section 158
(1) (g) of the
Labour
Relations Act 66 of 1995
, in terms of which the applicants seek an
order reviewing the ruling of the third respondent (the panellist) in
terms of which
it was found that the first respondent (the bargaining
council) did not have jurisdiction to entertain the alleged unfair
dismissal
dispute.
[2]
The
second respondent has applied for condonation for the late filing of
the answering affidavit. The four months delay in filing
the
answering affidavit is attributed to other work which the person
responsible for this matter was involved in. The delay in
filing the
answering affidavit is not insignificant and the reasons proffered
for it are not strong. However, the extent of the
delay and the
weakness in the explanation is compensated for by the prospects of
success. It is for this reason, that I belief,
it would be an
injustice to refuse condonation for the late filing of the second
respondent’s answering affidavit.
Background
facts
[3]
The
individual applicant (referred hereinafter as “the employee”
for ease of reference) was charged with misconduct
by the second
respondent and a disciplinary hearing was scheduled for 30 November
2010, 01 December 2010 and 6 December 2010. The
matter was on the
first day of the hearing postponed to 6 December 2010 because of the
unavailability of the witnesses of the second
respondent.
[4]
The
employee and his union representative opposed the application and
insisted that the matter should proceed particularly because
the
employee was already on suspension without pay. During the
course of the debate about the postponement the employee and
his
union representative walked out of the hearing and thus failing to
remain in attendance.
[5]
The
chairperson of the disciplinary hearing, relying on the provisions
regulation 18 (3) (a) of the South African Police Services
Disciplinary Regulations (the Regulations) postponed the disciplinary
hearing to 09 December 2010. At the stage the chairperson
of the
hearing postponed the matter the employee and his representative had
already left the hearing. The employee contended that
he was as a
result not aware of the date to which the matter had been postponed
to and accordingly did not attend the hearing on
9 December 2010.
[6]
The third respondent again in relying on the provisions of regulation
18 (5) (a) (i) of the Regulations suspended the applicant
without
full remuneration and postponed the hearing indefinitely.
[7]
The consequence of the suspension which was for two months was that
in terms of regulation 18(5) of the Regulations the employee
was
expected to liaise with the second respondent regarding the
reconvening of the hearing. The regulation further
provides
that failure to process the reconvening of the disciplinary hearing
by the employee would be deemed to be discharged from
the service.
[8]
According
to the employee the notice of suspension was served on his
representative on 23 December 2010. Thereafter the employee
attended the second respondent’s premises on 09 February 2011
and was informed that his services had been terminated and
he was
accordingly discharged. It was for this reason that the
employee referred an unfair dismissal dispute to the first
respondent.
[9]
The
matter then served before the third respondent in arbitration on 13
September 2012. At the arbitration hearing the second respondent
raised a preliminary point concerning the jurisdiction of the first
respondent. The third respondent agreed with the second
respondent and ruled that the first respondent lacked jurisdiction to
arbitrate on the matter and accordingly directed that the
matter be
referred to the Labour Court for adjudication.
Grounds
for review
[10]
The
applicant contends amongst other things that the third respondent
erred in:
10.1
the
ruling that the applicant had been discharged in terms of the
Regulations is reviewable in that the regulations were misinterpreted
by the third respondent ) arbitrator;
10.2
the
third respondent ignored the following guidelines stipulated by the
regulations for lawful discharge
- the chairperson should
have, on 6 December postponed the hearing to a date of not less than
7 (seven) days, and
- in the event that the
applicant still failed to attend the hearing, after the expiry of 7
days, the chairperson should have issued
a notice of suspension for
two months within which the applicant should have reconvened the
hearing failing which he would have
been discharged.
10.3
The
postponement of the hearing from 6 December to 9 December 2010 was
not properly convened as per the regulations. The 2 month
period
could not have commenced on 9 December 2010.
10.4
The
applicant contends also that the 2 months period within which he (
the employee) should have contacted the first respondent
would have
expired on or about 23/24 February 2011, considering the fact that
the notice period was received on 23 December 2010.
In that case the
applicant was still within the 2 months time period stipulated in the
regulation and could not have been discharged
by the third
respondent.
[11]
In addition to the above the applicants challenged the ruling of the
panellist on the basis that it is unreasonable. It was
also argued on
behalf of the employee that the panellist should not have accepted on
face value the second respondent’s argument
that the dismissal
was by the operation of the law but should have interrogated the
matter to see if the conditions precedent were
satisfied in that
regard. It was further argued that the panellist should have taken
into account that the employee presented himself
at the workplace
before the expiry of the two months.
The
ruling
[12]
The
panellist found that the employee was suspended in terms of
regulation 18(15) (a) (i) of the Regulations consequent to his
failure to remain in attendance during the disciplinary hearing. The
panellist further found that the employee failed to provide
satisfactory reasons for his absence.
[13]
Furthermore,
the panellist found that the first respondent did not have
jurisdiction to entertain the dispute because the employment
contract
of the employee was terminated by the operation of the law.
Evaluation
[14]
The
general rule in cases involving jurisdiction is that institutions
such as the CCMA and Bargaining Councils do not have the power
to
determine their own jurisdiction.
[1]
[15]
The
test to apply in determining a review of a jurisdictional ruling of
the bargaining council or the CCMA is not that of a reasonable
decision maker which was enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
but
rather whether the Commissioner or the panellist as the case may be
was right or wrong in arriving at whatever decision he or
she did
regarding the issue of jurisdiction.
[3]
This
means in the present instance what needs to be determined is whether
the Commissioner was wrong or right in concluding the
Bargaining
Council did not have jurisdiction to entertain the applicants’
dispute.
[16]
The
issue to consider in determining whether the bargaining council has
jurisdiction revolves around the basis for the termination
of
his employment contract. If the reason for the termination of the
employment contract is that envisaged in section 186 (1) of
the LRA
then it can be said that the bargaining council has jurisdiction to
entertain the dispute. If the termination was by operation
of the law
then the panellist was correct in concluding that the bargaining
council does not have jurisdiction to entertain the
dispute.
[17]
The
facts before this court reveal very clearly that the termination of
the employment contract of the employee was as result of
the
operation of the law. In this respect the employee in his
supplementary affidavit states the following:
“
13.
On 9 February 2011, I attended at the Second Respondent’s
premises at the police station
where I was based, on arrival I was
informed that that my services have been terminated due to being
discharges from the service
of the second respondent.”
The employee
further states in the same affidavit that:
“
15
Therefore, the Second Respondent’s decision to discharge is
unlawful in that the Second
Respondent failed to follow its own
Regulations dealing with discharge of employees.”
[18]
The
chairperson of the disciplinary hearing in evoking the statutory
termination of the contract of employment of the employee relied
on
regulation 18
(3)(a)
of the
Regulations which reads as follows:
“
Upon failure
as contemplated in subregulation (2), the chairperson must
postpone
the hearing for not less than seven (7) calendar days
and the notice of the postponement, issued by the chairperson, must
be served on the employee...”
And regulation
18(5)(a) of the Regulations reads as follows:
“
In the event
that the employee fails to appear at the disciplinary hearing on any
date to which the disciplinary hearing has been
postponed, or a date
to which it was postponed in terms of subregulation (3),
i
the employee shall, from the date of such failure to appear or remain
in attendance, be deemed to be suspended without (full) remuneration;
and
ii
the chairperson must postpone the disciplinary hearing indefinitely,
and the disciplinary hearing shall only reconvene at the instance of
the employees concerned, after liaising with the employer
representative, as contemplated in subregulation (1)(b): Provided
that in the event that the employee fails to take steps to reconvene
the hearing within two (2) months of such date, the chairperson must
record such failure on the record of the disciplinary hearing
and the
employee shall forthwith be deemed to be discharged from the Service
in terms of regulation 15(1)(f).”
[19]
It is now well established that statutorily deemed termination of an
employee’s employment contract does not constitute
a dismissal
as envisaged in section 186(1) of the Labour Relations Act of 1995
(the LRA). In
MEC,
Public Works, Northern Province v CCMA & Others
[4]
,
the Court held
that
an employee whose employment was terminated by operation of the law
was not dismissed.
[5]
[20]
An
employee whose employment has been terminated by operation of the law
is deprived of the remedies of the unfair dismissal as
provided for
in the LRA. This does not however mean that such an employee cannot
challenge the termination of the employment under
other causes of
action. The exercise of power by the second respondent can be
challenged under the provisions of section 158(1)(h)
of the LRA,
[6]
which empowers the Court to review any conduct of the state in its
capacity as an employer. This means that the decision of the
chairperson of the disciplinary hearing in the present matter to
evoke the provisions of regulation 18 of the Regulations can be
challenged on review in terms of section 158(1)(h) LRA. It is trite
that it is only the Court that has the review powers and not
the
bargaining council.
[21]
It
was indicated earlier in this judgment that the decision of the
chairperson of the disciplinary hearing to evoke the provisions
of
regulation 18 has not been challenged by the applicants or reviewed
and set aside. In this respect the basic principle of our
law is that
an administrative decision made, be it valid or otherwise remains in
force until it is set aside on review. In
dealing with the same
issue and following the decision in
Oudekraal
Estates (Pty) Ltd v City of Cape Town,
[7]
this
Court in
Taung
Municipality v Mofokeng
[8]
,
had the following to say:
“
12.
It has been pointed out in
Oudekraal
supra
that whilst an unlawful act is void in law it is however in fact
valid and derives its validity and the force of law from its factual
basis. Thus the enquiry generally is not whether the decision has its
basis in law but rather whether such a decision exists in
fact. The
next enquiry once it has been established that the decision is
unlawful but exists in fact would be to determine whether
it has been
set aside on review. In general this question arises in the
determination of whether or not the decision is enforceable
or
whenever there is an attempt at coercing such unlawful administrative
act.”
[22]
It
follows that the decision of the chairperson of the disciplinary
hearing in the present matter remains in force be it lawful
or
otherwise until it is set aside on review. Accordingly the panellist
was correct when he said that the bargaining council did
not have
jurisdiction to entertain the dispute. And I assume that what he
meant when he said that the applicants could refer their
dispute to
the Labour Court is that they could lodge a review application.
Conclusion
[23
]
In
my view the objective facts placed before this Court do not support
the contention that the bargaining council has jurisdiction
as it is
clear that termination of the employment contract was by operation of
the law. The applicants’ application therefore
stands to fail.
[24]
As
concerning costs, I am of the view that there are merits in the
complaint of the first respondent that they were unnecessarily
dragged to the Court, the overriding consideration is that the costs
should not be allowed to follow the result because of the
relationship between the parties.
Order
[25]
In
the premises the following order is made:
25.1
The
late filing of the second respondent’s answering affidavit is
condoned.
25.2
The
first respondent does not have jurisdiction to entertain the dispute
of the applicants.
25.3
The
applicants’ application is dismissed with no order as to
costs.
_______________________
Molahlehi J
Judge of the Labour
Court of South Africa
Appearances:
For
the Applicants:
T Ntshebe of
Thabang Ntshebe Attorneys
For
the
Respondent: Advocate
Nhlapo
Instructed
by State Attorney
[1]
Solid
Doors (Pty) Ltd v Commissioner Theron and Others
(2004) 25 ILJ 2337
(LAC) at para 29.
[2]
(2007) 28 ILJ 2405
(CC).
[3]
SA Rugby
Players Association and Others v SA Rugby (Pty) Ltd and
Others
,
(2008)
29 ILJ 2218
(LAC)
at paras 39 – 40
[4]
(2003) 10 BLLR
1027 (LC).
[5]
Nkopo v Public
Health and Welfare Bargaining Council & Others
(2002) 23 ILJ 520 (LC).
[6]
Section 1
58
(1) (h)
of
the LRA reads as follows: “The Labour Court may-
review any
decision taken or any act performed by the State in its capacity as
employer, on such grounds as are permissible in
law.”
[7]
[2004] 3 All
SA1(SCA).
[8]
(2011) 12 BLLR
1243(LC).