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[2014] ZALCJHB 89
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Lebeya v Minister of Police and Another (J728/14) [2014] ZALCJHB 89 (31 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
Of interest to other
Judges
Case
no: J
728/14
In
the matter between:
SESWANTSHO
GODFREY
LEBEYA
Applicant
and
MINISTER
OF
POLICE First
Respondent
NATIONAL COMMISSIONER
OF THE
SOUTH AFRICAN POLICE
SERVICE Second
Respondent
Heard:
28 March 2014
Delivered:
31 March 2014
Summary:
(Urgent application-suspension of terminations pending further
consultation under s 189 – urgent relief
to suspend a
retrenchment pending such consultation can be granted under certain
circumstances)
JUDGMENT
Background
[1]
The applicant has come to court on an
urgent basis to prevent his termination on grounds of redundancy
before his employer, the
South African Police Services (‘SAPS’),
terminates his employment of nearly 30 odd years, without consulting
with him
under
section 189
of the
Labour Relations Act 66 of 1995
. In
his application for relief he did not specifically refer to
section
189
but it is patently clear from the factual context and from the
Act that it could only be a reference to consultations under that
provision.
[2]
Since 1 February 2011, the applicant has
been serving as a Deputy National Police Commissioner at the South
African police service
head office.
[3]
At the end of August 2013, the National
Commissioner (the second respondent) indicated her intention to
restructure the corporate
function of the SAPS. Part of this would
entail a reduction in the number of Deputy National Commissioners. At
about the same time
she advised him that she wanted to appoint him as
the head of the SAPS Research Institute, an entity which still had to
be established.
She further indicated that the new post would not be
on the level of a Deputy National Commissioner. Despite the absence
of any
formal confirmation of these plans, no sooner had the
Commissioner broached the subject with him, than she announced his
transfer
to the position to the media. Subsequent to the
announcement, he received notification which referred to the media
briefing on
31 August 2013 but described the step as an intended
provisional appointment to the post at the level of
Lieutenant-General, which
is the post level he holds even though he
is a Deputy National Commissioner.
[4]
In terms of the structure presented to the
Parliamentary portfolio committee, the head of the new institute
could not be a Lieutenant
General. Nevertheless, on 17 February 2014,
he was issued with a letter in which he was advised to accept the
offer made to him
of being allocated to the position of Head of South
African Police Service Research Institute as a Lieutenant General at
level
15. He was obliged to accept the offer by 17 March 2014. In the
letter from the office of The Deputy National Commissioner: Corporate
Service Management it was stated:
"1.1
You must unconditionally accept the offer made to you as offered by
17th of March 2014.
1.2
Failure to unconditionally accept the offer by the date mentioned in
paragraph 1.1 above
will means the offer falls off.
1.3
The
natural consequence of the offer being removed from the table
is that you will be rendered redundant with the natural attendant
consequence of such eventuality
."
[5]
The applicant responded on 17 March 2014. A
considerable part of the letter is concerned with what the applicant
perceives to be
his implied demotion by the author of the letter.
However, he concluded his letter with the following:
"12. I have through
my evenly numbered letters dated 2013-10-29, 2013-11-12, 2013-11-13
and 2013-11-19, repeatedly indicated
that I accept the post with my
current rank which essentially means that the acceptance is neither
promotion nor demotion, but
lateral appointment as provided for in
terms of regulation 44 (7) (c) of the South African Police Service
Employment Regulations,
2008. I implore a frank and meticulous
attention of the National Commissioner on this matter."
[6]
The response of the National Commissioner,
who appears to have signed the letter of reply under her official
title, was swift and
peremptory, viz:
"
YOUR
FAILURE TO ACCEPT THE OFFER MADE TO BUY 17 MARCH 2014
1.
As demanded of you, you were required to
accept the offer by 17th of March 2014.
2.
17 March came and is gone and you have not
accepted the offer.
3.
The natural consequence of your failure to
accept the offer is that you have rendered yourself redundant.
4.
The HR will now work on your exit-package.
5.
You are hereby requested to protect office
you are currently occupying by 2014-03-28.
6.
Your cooperation is highly appreciated."
[7]
At this juncture, it should be noted that
the National Commissioner avoided using the word termination, or in
any direct way stating
that the applicant was going to be dismissed
by the SAPS. The National Commissioner’s communication to all
his colleagues
in the SAPS was more emphatic in describing the
consequence of the applicant allegedly not accepting the appointment,
though the
announcement might still be interpreted by an ordinary
reader to mean that it was the applicant who decided to leave his
employment:
"I wish to advise
that Lieutenant General Godfrey Lebeya and Lieutenant General
Leah Mofomme have opted not to accept
the new roles identified for
them and will leave the employ of the SAPS with effect from 31 March
2014.”
[8]
In this roundabout and somewhat misleading
manner, the termination of the applicant’s services at the end
of this month was
heralded. In a letter from the applicant's
attorneys on 24 March 2014, they queried how it could be ‘a
natural consequence'
of his alleged failure to accept the post that
he had rendered himself redundant. The letter also confirmed that, as
far as he
was concerned, he had accepted the appointment. Further,
the letter queried the indirect suggestions that the applicant’s
services would be terminated at the end of the month. Although the
receipt of the letter was confirmed, it appears that the National
Commissioner did not consider it required any response. This lack of
response prompted the applicant to launch this application
after
giving the Commissioner a final opportunity to respond by close of
business on 26 March 2014. This ultimatum, did not elicit
any
response either and the applicant launched this application on 27
March 2014.
[9]
The respondents chose not to file any
answering affidavits, nor to seek time to do so, but chose to argue
on the applicant's papers.
Evaluation
Urgency
[10]
The respondents contended that there is
nothing urgent about this matter as the parties had been in
discussions since last year
about the applicant's transfer to the new
post. By implication, the applicant ought to have done something
about insisting upon
consultations sometime back. However, prior to
him receiving the letter on 18 March 2014, there is nothing on the
papers before
me that tells me that the applicant was aware not only
that he might become redundant to the SAPS, but that his redundancy
automatically
would result in the termination of his service. The
letter of 17 February 2014 spoke only of the consequences naturally
attendant
on redundancy. The natural consequence attendant on a
redundancy situation in our law, is that the employer will enter into
a consultation
process with the affected employee or their
representative following the procedures set out in section 189 of the
Labour relations
act 66 of 1995 before taking a final decision. Even
though retrenchment may be contemplated by the employer under
circumstances
like the present one, the whole point of the process
envisaged by the provision is to see if the parties cannot reach
agreement
on a less drastic measure, failing which they ought to try
and agree on ameliorative measures to cushion the blow.
[11]
As far as urgency is concerned, on what is
before me, I am satisfied that the probable intention of the National
Commissioner's,
namely to dismiss the applicant because he did not
accept the transfer on exactly her terms only became manifest after
her letter
of 18 March 2014. Through his attorneys the applicant
sought to clarify matters with the second respondent but to no avail.
The
launching of this application on 26 March 2014, satisfies the
requirements of urgency in my view.
Existence of a right
[12]
In this instance, the existence of a right
is intimately tied up with the question whether an alternative remedy
exists. We are
not dealing with a
prima
facie
right, but whether in these
circumstances, the applicant is clearly entitled to have his
termination suspended pending the employer
holding consultations with
him under s 189.
[13]
The principal contention of the respondents
is that the law does not permit an employee to obtain relief in
circumstances where
a procedurally unfair retrenchment is the issue.
The applicant's remedy so it was argued is to refer an unfair
retrenchment claim
to conciliation and subsequent adjudication or
arbitration under the provisions of the LRA. In argument, the
respondents contended
that they had an election either to transfer,
demote or dismiss the applicant. Effectively, they had chosen the
last course of
action and are prepared to defend any unfair
retrenchment claim brought by the applicant as a result of that
choice. The respondent
contended that the authorities made it clear
that the Labour Court should not entertain unfair dismissal claims
brought under the
guise of interdict proceedings.
[14]
It
is true that, for the most part, the Labour Court will not interfere
in incomplete proceedings that may result in dismissal,
except in
exceptional circumstances.
[1]
Similarly,
if the employee’s services have already been terminated, the
Labour Court only acquires jurisdiction to deal with
the
unfairness
of that dismissal if the matter is referred to it in terms of section
191 of the LRA.
[2]
The Labour
Court has been willing to grant interdictory relief in certain
circumstances even where notice of dismissal has been
given but where
the consultation process is fundamentally flawed.
[3]
[15]
In this instance, the applicant argues that
his services have not yet been terminated as he remains in employment
until the end
of the month, even if he has been told,
unceremoniously, to leave his office. Be that as it may, he has
effectively been told he
will be dismissed at the end of the month
and a decision to end them has been taken by the respondents. The
applicant seeks to
assert a right to require the employer to fulfil
its obligations in terms of section 189 of the LRA before it gives
effect to his
dismissal for operational reasons on account of his
redundancy.
[16]
It is clear that a subsequent finding that
his retrenchment was procedurally unfair will not restore the
opportunity for him to
engage in a joint problem solving process
right. The right to engage in a joint problem solving process
prior to a retrenchment
is one of those evanescent entitlements which
are not adequately restored by compensation. The main value of
consultation under
s 189 is the opportunity to influence the
outcome. That cannot meaningfully be done in an unfair
retrenchment hearing some
time after the event. By contrast,
procedural unfairness in other types of dismissal to a large extent
is restored by the statutory
arbitration process itself as the
hearing is a
de novo
one.
The fundamental purpose of s 189 can be thwarted if an employer can
simply ‘elect’ to ignore it even when it can
still be
complied with.
[17]
It is true, after his termination the
applicant could complain that he was retrenched in a procedurally
unfair manner. The procedural
fairness of his retrenchment will to
some extent be measured against the requirements of section 189,
though that will not necessarily
be determinative of the issue. If
the applicant subsequently does proceed to challenge his retrenchment
and succeeds only in establishing
that it is procedurally unfair, he
will not regain an opportunity to explore what alternatives that
process might have yielded.
He will be confined to payment of
compensation as relief.
[18]
In this instance, there is no evidence that
between the time of contemplating the applicant’s termination
and taking the decision
to do so, he was advised that the termination
of his services for operational reasons was being contemplated and
consequently was
invited to consult with his employer in terms of
section 189.
[19]
On the evidence, there appears to have been
a complete failure to invoke a consultation process as envisaged by s
189. I am satisfied
that the applicant has a clear right not to be
denied the opportunity to engage with his employer in consultations
as required
under s 189 in circumstances where it is still possible
to give effect to the right, as the employee has not already left his
employment
and suspending his dismissal is still possible.
Order
[20]
The respondents are ordered to suspend the
applicant’s termination pending consultations with him over his
possible retrenchment
in accordance with the provisions of
s 189
of
the
Labour Relations Act, 66 of 1995
.
[21]
The respondents are jointly and severally
liable for the applicant’s costs the one paying the other to be
absolved.
____________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate E. van As
Instructed
by: VDT Attorneys
For
the Respondents:
Advocate A.P. Laka SC
Instructed
by:
The State Attorney Pretoria
[1]
See
Booysen
v Minister of Safety and Security and others
[2011]
1 BLLR 83
(LAC)
at para [34].
[2]
See
M
A De Beer v Minister of Safety and Security and others
[2013]
10 BLLR 953
(LAC)
at
962-3:
“
[23]
In terms of
section
158(1)(a)(i)
of
the Act, the Labour Court is empowered to, inter alia, grant a
litigant appropriate urgent interim relief. On the other hand,
the
Labour Court is not empowered, for example, to adjudicate a dispute
about the fairness of a dismissal in circumstances where
the dispute
was not first referred to the CCMA, or the relevant council, as the
case may be, for conciliation within the prescribed
period.
Section
191(1)
of
the Act requires that such a dispute be first referred to
conciliation. It is only after the council or the Commissioner had
certified that the dispute remains unresolved, or a period of 30
days has expired since the council or the CCMA received the
referral
and the dispute remains unresolved that the council, or the CCMA,
must arbitrate the dispute (
section
191(5)(a)
),
or
the employee may refer the dispute to the Labour Court for
adjudication (
section
191(5)(b)
). It is thus clear from
section
191(5)
that
the referral of a dismissal dispute to conciliation is a
pre-condition before such a dispute can be arbitrated, or referred
to the Labour Court for adjudication. In the absence of a referral
to conciliation, or if it was referred, but there is no certificate
issued as contemplated in
section
191(5)
and
the 30-day period has not expired, the Labour Court has no
jurisdiction to adjudicate the dismissal dispute.”
[3]
For
example, in
National
Union of Metalworkers of SA & others v Comark Holdings (Pty) Ltd
(1997)
18
ILJ
516
(LC),
where
the decision to retrench had been taken prior to the conclusion of
consultations and interdict proceedings were launched
after
employees had been notified of their retrenchment but while they
were still employed. See also
Vela
& others v Savo & others
(1998) 19
ILJ
916 (LC)
where
an interdict was granted preventing the retrenchment of employees
until consultations had taken place under
s 189
, but was not
confirmed on the return day in view of a tender not to retrench
employees until consultations had been completed.
In
National
Union of Metalworkers of SA v Nissan SA Manufacturing (Pty) Ltd
(1999) 20
ILJ
1097 (LC)
,
the court interdicted retrenchments pending the determination of a
dispute over the provision of information under a collective
agreement, where the union might have been detrimentally affected in
the consultation process without the information in question.
In
National
Union Of Metalworkers Of Sa & Others v Dzima Manufacturing
(PTY)
Ltd
(1999)
20
ILJ
2904 (LC)
the
court granted interim relief requiring the employer to extend the
affected employees employment pending
s 189
consultations, even
though they had been notified of their retrenchment. In
National
Education Health & Allied Workers Union v Medicor (Pty) Ltd t/a
Vergelegen Medi Clinic
(2001)
22
ILJ
1839 (LC)
the
court declined final relief on the basis that since the employees
had already been notified of their termination on grounds
of
retrenchment they had to be considered dismissed and therefore not
entitled to interim relief. Secondly, the court held at
[20] and
[21] that interim relief should be declined because if the employees
subsequently were found to have been unfairly dismissed
they could
be reinstated and if the employer wanted to continue with the
retrenchment the opportunity to consult would arise
again. It seems
in arriving at this conclusion, the court was not asked to consider
the possibility that if the retrenchments
were only found to be
procedurally unfair subsequently, then there would not be another
opportunity to consult since only compensation
might be payable.