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[2015] ZALCJHB 313
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Mhlongo v South African Revenue Service (J1915/09) [2015] ZALCJHB 313 (11 September 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
DATE: 11
SEPTEMBER 2015
Case no: J1915/09
Not Reportable
In the matter
between:
CHARLOTTE CONNIE
MHLONGO
..................................................................................
Applicant
And
SOUTH
AFRICAN REVENUE
SERVICE
..................
.....................................................
Respondent
Heard:
1 July 2015
Delivered:
11 September 2015
Summary: Section
77(3)
Basic Conditions of Employment Act, 75 of 1997
–
jurisdiction – application for referral to oral evidence –
application for postponement – whether or
not policies and
procedures incorporated as terms and conditions of contract of
employment
JUDGMENT
MALAN
AJ:
Introduction
[1]
The matter before me concerns an
application in terms of
s 77(3)
read with s 77A(e) of the Basic
Conditions of Employment Act, 75 of 1997 (‘
BCEA’
)
in terms of which the applicant seeks an order declaring the decision
by the respondent to suspend and subsequently dismiss her
on 19 May
2009 to be unlawful.
[2]
In essence, the applicant in the first
place contends that the respondent’s disciplinary code and
procedures form a material
part of the terms and conditions of her
contract of employment. In the second place, the applicant
contends that the respondent
breached such policies and procedure
when it suspended her and then dismissed her without prior notice and
without being afforded
an opportunity to make representations.
In the premises, the applicant seeks an order that she be reinstated
with full retrospective
effect.
[3]
On the other hand, I understand the
respondent’s basis of opposition to be as follows:
Firstly, it denies that its disciplinary
code and procedure form part
of the terms and conditions of the applicant’s contract of
employment. On this basis, it argues
that therefore, the applicant’s
claim, properly construed, relates to a right not to be unfairly
dismissed as contemplated
in terms of s 185 of the Labour
Relations Act, 66 of 1995 (‘
LRA’
)
and must therefore be adjudicated through the procedure prescribed in
s 191 of the LRA. Consequently, the respondent
argues that
this Court lacks the jurisdiction necessary to determine this
matter. The respondent has raised its challenge
to the
jurisdiction of this Court as a preliminary issue for determination.
[4]
At the commencement of the hearing of this
matter, the applicant made application that the matter be referred to
oral evidence.
Following argument by both parties on this
aspect, the application to refer the matter to oral evidence was
dismissed. My
reasons are set out hereunder.
[5]
Following the dismissal of the applicant’s
application to have the matter referred to oral evidence, the
applicant brought
an application, from the Bar, to have the matter
postponed. After hearing argument by both parties, I dismissed
the application
for postponement. My reasons are set out
hereunder.
[6]
During argument the applicant did not
persist with her challenge to the authority of the deponent to the
respondent’s answering
affidavit. As a result, this issue
does not require determination.
Application for
referral to oral evidence
[7]
This matter has a long history going back
some six years. During July 2009 the applicant elected to
approach this Court by
way of application on the basis and for the
relief as mentioned earlier hereinabove. I understand the
applicant’s application
to have the matter referred to oral
evidence to be premised on two main grounds. First, she
contends that:
“
Material
events have transpired since the initial application. This
includes, among (sic) others, the acquittal of the applicant
in a
criminal court of law on the charges initiated by SARS”.
[1]
[8]
Secondly, the applicant contends that:
“
15.
In addition, the papers filed indicate at least two material disputes
of fact, pertaining to:
15.1
Whether or not the applicant is suspended, or had reason to believe
she was suspended, following the event of 31 March 2009;
and
15.2
Whether or not the SARS (sic) disciplinary code of conduct is
incorporated in the contract entered into between the parties.”
[2]
The applicant’s
acquittal
[9]
In my view the applicant’s reliance
on her acquittal in a criminal court of law on the charges initiated
against her by the
State is misplaced. Save for her
unsubstantiated allegation regarding her acquittal, no facts were
placed before the Court
to explain why and to what extent, if any,
her acquittal is of any relevance to the issues which requires
determination in this
matter. In any event, I fail to appreciate how
the acquittal can contribute to resolve the issues arising from the
application
before this Court.
[10]
Secondly, the test applied in criminal
cases is different to that applied in civil cases, such as the matter
at hand.
[11]
Consequently, this ground must fail.
Material disputes
of fact
[12]
In
Wightman t/a JW Construction v Headfour (Pty) Ltd &
another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at para 13 the Court held as
follows:
‘
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the facts
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in
finding that the test is satisfied.
I say “generally” because factual averments seldom stand
apart from a broader matrix
of circumstances all of which needs to be
borne in mind when arriving at a decision. A litigant may not
necessarily recognise or
understand the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made
by the other party. But when he signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and
will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser
who settles an answering affidavit to ascertain and engage
with facts which his client disputes and to reflect such disputes
fully
and accurately in the answering affidavit. If that does not
happen it should come as no surprise that the court takes a robust
view of the matter.’
[13]
The fact that a dispute exists between the
parties regarding the applicant’s suspension and whether or not
she had reason
to believe that she was suspended was clearly evident
even prior to the applicant launching this application.
[14]
As early as 19 June 2009 (on the
applicant’s own version), when the applicant received a letter
terminating her services on
the basis of abscondment, the applicant
was well aware, or at least ought to have been well aware, that there
is a dispute about
the reasons for absence from work. The
letter of 19 June 2009, together with the letter of 19 May 2009
(which was attached
to the letter of 19 June 2009), stated in no
uncertain terms that the respondent is of the view that the applicant
had been absent
from work without permission. Consequently, it
was apparent at that stage already that the respondent does not share
the
applicant’s view that she had been placed on suspension at
the time of her arrest.
[15]
At the very least from this moment onwards,
it was then foreseeable that there would be a dispute of fact insofar
as the alleged
suspension is concerned. The aforesaid
notwithstanding, the applicant elected to approach this Court by way
of the motion
proceedings. It was open to the applicant to
proceed by way of action in this Court. However, she did not.
[16]
When the respondent delivered its answering
affidavit during October 2009, it was again evident that there was a
dispute relating
to the applicant’s suspension.
[17]
In addition, the applicant’s belated
approach to have the matter referred to oral evidence is inconsistent
with her approach
when she had no difficulty in obtaining a judgment
against the respondent in the absence of the respondent in
circumstances where
the respondent had already filed an answering
affidavit.
[18]
The aforesaid notwithstanding, on 23 June
2015, a few days before the hearing of this matter, the applicant for
the first time in
a letter to the respondent’s attorneys raised
the issue that they would require the dispute aforementioned to be
referred
to oral evidence. No reasonable or acceptable
explanation has been offered for this delay. The applicant
then, at the
proverbial eleventh hour on the day on which the matter
was set down to be argued, launched an interlocutory application to
have
the matter referred to oral evidence. This is unacceptable given
the circumstances.
[19]
I do not consider this issue to be a
material dispute that cannot and should not be resolved on the papers
as they stand in the
light of the circumstances set out above and in
so far as it may be necessary.
[20]
In so far as the second basis of the
applicant’s application to refer the dispute to oral evidence
is concerned, I do not
agree that the question whether or not the
respondent’s disciplinary code of conduct is incorporated in
the applicant’s
contract of employment is an issue that cannot
also be resolved on the papers as they stand. The dispute is
simply this,
whether or not the applicant had a contractual right to
a hearing prior to her suspension and dismissal and if so, whether or
not
the respondent had breached such contractual term or condition.
I can see no reason why this issue cannot be properly determined
with
reference to the pleadings and the relevant documentary evidence.
[21]
For these reasons the application to have
these disputes referred to oral evidence was dismissed.
Postponement
[22]
Immediately after the application to have
the matter referred to oral evidence was dismissed, Mr Mastenbroek,
counsel who appeared
on behalf of the applicant, brought an
application, from the Bar, for postponement of the matter.
[23]
No substantive application was brought nor
was any notice given to the respondent that such an application would
be brought.
Mr Mastenbroek provided five grounds in support of
the application for postponement. These grounds were the
following:
23.1.
He contended that the applicant’s
interest would be best serve if he as counsel is given the
opportunity to redraft heads
of argument given the lapse of time;
23.2.
He required more time to “
make
sense of the papers”
and address
the Court in an more informed manner with proper new heads of
argument;
23.3.
He had time constraints insofar as his
preparation for the matter was concerned;
23.4.
Because the application for referral to
oral evidence was dismissed;
23.5.
He wished to make reference in
supplementary heads of argument to the subsequent events namely the
acquittal of the applicant in
the criminal court.
[24]
A
party seeking an indulgence must show good cause for the interference
with his or her opponent's procedural right to proceed and
with the
general interest of justice in having the matter finalised.
[3]
Naturally, the Court is entrusted with a discretion as to whether to
grant or refuse the indulgence.
[4]
The court is then required to exercise a judicial discretion in
determining such indulgence sought.
[5]
[25]
It
is apposite to refer to the judgment in
Carephone
(Pty) Ltd v Marcus NO and Others
[6]
where the court held as follows:
‘
In
a court of law the granting of an application for postponement is not
a matter of right. It is an indulgence granted by the court
to a
litigant in the exercise of a judicial discretion. What is normally
required is a reasonable explanation for the need to postpone
and the
capability of an appropriate costs order to nullify the opposing
party's prejudice or potential prejudice.…
’
[7]
[26]
The
general principles applicable to postponements was aptly summarized
in the judgment of
Insurance
and Banking Staff Association and Others v SA Mutual Life Assurance
Society
[8]
,
where it was held as follows by Jajbhay J, and which can equally be
applied in this instance:
‘
[44]
In an application for postponement, the legal principles established
in the High Court over the years apply equally in practice
in the
Labour Courts. For the purpose of the present application, the
following principles apply:
(a) The trial
judge has a discretion as to whether an application for postponement
should be granted or refused. (R v Zackey
1945 AD 505
; Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(Nm).)
(b) That
discretion must at all times be exercised judicially. It should not
be exercised capriciously or upon any wrong principle,
but for
substantial reasons. (R v Zackey; Myburgh Transport; Joshua v Joshua
1961 (1) SA 455
(G) at 457D.)
(c) The trial
judge must reach a decision after properly directing his/her
attention to all relevant facts and principles. (Prinsloo
v Saaiman
1984 (2) SA 56
(O); Johannesburg Stock Exchange & another v
Witwatersrand Nigel Ltd & another
1988 (3) SA 132
(A).)
(d) An
application for postponement must be made timeously, as soon as the
circumstances which might justify an application become
known to the
applicant. However, in cases where fundamental fairness and justice
justify a postponement, the court may in an appropriate
case allow
such an application for postponement, even though the application was
not timeously made. (Myburgh Transport; Greyvenstein
v Neethling
1952
(1) SA 463
(C).)
(e) The
application for postponement must always be bona fide and not used
simply as a tactical manoeuvre for the purpose of obtaining
an
advantage to which the applicant is not legitimately entitled.
(f)
'Considerations of prejudice will ordinarily constitute the dominant
component of the total structure in terms of which the
discretion of
a Court will be exercised.' What the court has primarily to consider
is whether any prejudice caused by a postponement
to the adversary of
the applicant for a postponement can fairly be compensated by an
appropriate order of costs or any other ancillary
mechanisms.
(Herbstein & Van Winsen, The Civil Practice of Superior Court in
SA (3 ed) at 453; Myburgh Transport.)
(g) 'The Court
should weigh the prejudice which will be caused to the respondent in
such an application if the postponement is
granted against the
prejudice which will be caused to the Applicant if it is not.'
(h)
Where the applicant for a postponement has not made the application
timeously, or is otherwise to blame with respect to the
procedure
which the applicant has followed, but justice nevertheless justifies
a postponement in the particular circumstances of
a case, the court
in its direction might allow the postponement but direct the
applicant in a suitable case to pay the wasted costs
of the
respondent occasioned to such a respondent on a scale of attorney and
client. Such an applicant might even be directed to
pay the costs of
the adversary before the applicant is allowed to proceed with the
action or defence in the action, as the case
may be. (Van Dyk v
Conradie & another
1963 (2) SA 413
(C); Tarry & Co Ltd v
Matatiele Municipality
1965 (3) SA 131
(E); Myburgh Transport.)’
[27]
Also
see
Shilubana
v Nwamitwa (National Movement of Rural Women and Commission for
Gender Equality as Amici Curiae)
[9]
where these legal principles were restated.
[28]
In
SA
Transport and Allied Workers Union on behalf of Members v Comwezi
Security
[10]
the Court confirmed that an application for postponement will only be
granted in exceptional and unforeseen circumstances.
[29]
Although the applicant relied on five
grounds in support of the application for postponement, there are
essentially only two grounds.
The one relates to time
constraints in preparing for the matter and drafting supplementary
heads of argument, the other to the
dismissal of the application for
oral evidence.
[30]
As already mentioned, the matter has a long
history going back as far as May 2009. It was first argued in
this Court when
default judgment was obtained against the respondent
during June 2010. It was again argued during 2012 when the
applicant
successfully opposed an application for rescission by the
respondent of the default judgment. The matter then proceeded
on
appeal to the Labour Appeal Court during November 2014, where the
appeal was upheld and the matter remitted to this Court during
March
2015. The application was not made timeously. No evidence was
placed before the Court why the applicant was not in
a position, at
the time it came before me, to present argument and still wanted to
deliver supplementary heads of argument and
continue with
preparation. Any subsequent events such as the acquittal of the
applicant in the criminal court can in any
event not be placed before
the Court by simply mentioning it in supplementary heads of
argument. That is not the appropriate
way to deal with new
evidence. In any event, as I have already held earlier in this
judgment, these facts are irrelevant
for deciding the issues before
me.
[31]
I have already dealt with the reasons for
dismissing the application to refer the disputes contended for by the
applicant to oral
evidence. I am not convinced that the
dismissal of the application constitutes a reasonable and justifiable
basis to postpone
the entire matter. It would serve no purpose
and offend the spirit of the LRA to resolve disputes as expeditiously
as possible.
Synopsis of
relevant factual matrix
[32]
The applicant was employed as the Manager:
Legislative Interpretation at the respondent from 1 February 2005
until the termination
of her employment on 19 May 2009. The
applicant contends that on 31 March 2009, whilst at work, she was
approached by an
inspector, Nkosi, a member of the South African
Police Services. It is common cause that Inspector Nkosi was in
the company
of Mr Andrew Seshoka, an employee of the respondent.
[33]
It is further common cause that Inspector
Nkosi informed the applicant that charges had been laid against her
by the respondent
and arrested her on allegations of corruption.
Her motor vehicle as well as her cell phone was confiscated at the
time of
her arrest.
[34]
The applicant contends further that Mr
Seshoka took her two cell phones and laptop as well as her access
card and also informed
her that she has been suspended from her
employment with the respondent with immediate effect. The respondent
denies the aforesaid.
[35]
Shortly after the above, the applicant
consulted with her attorneys of record who addressed a letter to the
respondent on 20 April
2009 demanding a written confirmation about
her suspension and the conditions thereof.
[36]
The respondent contends that it made
several unsuccessful attempts to contact the applicant with a view of
having her return to
work. It send letters to the applicant on
8 May 2009 as well as 19 May 2009, calling upon her to return to work
and report
for duty. The respondent further states that the
aforegoing two letters were written in compliance with its internal
HR policy:
Timely Reporting of Unexpected Absences. The
respondent contends that the aforementioned attempts to make contact
with the
applicant was to request that she returned to work with a
view of making arrangements for her to attend a proper disciplinary
hearing
in line with the respondent’s disciplinary code and
procedure.
[37]
On 15 June 2009, the respondent received a
further letter from the applicant’s attorneys. In this
letter they request
a reply to their letter dated 20 April 2009 as
well as enquiring from the respondent why the applicant had not
received her salary
for the month. On 19 June 2009, the
respondent in a letter (incorrectly dated 10 December 2008) advised
the applicant’s
attorneys that her services had been terminate
with effect 19 May 2009 for failing to report for duty.
[38]
The applicant denies that she received
these letters from the respondent.
[39]
The applicant contends that the
respondent’s disciplinary code and procedure and the policy on
timely reporting and unexpected
absences have been incorporated into
and form part of her contract of employment. On the basis
aforementioned, the applicant
contends further that these policies
and procedures aforementioned “
attained
contractual status and as a result [are] binding between [her] and
the respondent”
.
[40]
Paragraph 10.2 of the respondent’s
disciplinary code and procedure provides as follows:
“
No
employee may be dismissed, demoted or suspended without pay for
misconduct, without being granted a formal disciplinary hearing
as
contemplated in this disciplinary code and procedure unless the
holding of a disciplinary hearing is made impossible by the
employee
by failing to attend hearing for no valid reason, or the employee
indicating clearly and unequivocally that he/she is
not prepared to
participate in the disciplinary hearing.”
[41]
The respondent denies that its disciplinary
code and procedure and the policy on timely reporting or unexpected
absences form part
of the terms and conditions of the applicant’s
contract of employment or ascertained contractual status. In
his regard
the respondent states that the applicant’s
employment contract makes no reference to the incorporation of the
disciplinary
code. The respondent further states that it made
numerous attempts to contact the applicant to no avail with the view
of
arranging a date for the hearing of the disciplinary enquiry.
It states that the applicant’s disappearance and failure
to
contact the respondent after she was arrested for corruption, made it
impossible for the respondent to convene a disciplinary
hearing.
It states that it was denied the opportunity to conduct a formal
disciplinary hearing as a result of the applicant’s
desertion
and failure to return to work.
[42]
It is on the basis aforementioned that the
applicant argues that the respondent deviated from the provisions of
the disciplinary
code and procedures and thus breach the terms and
conditions of her contract of employment by failing to afford her the
benefit
of a disciplinary hearing prior to her suspension and
subsequent dismissal. Consequently, so the applicant argues,
the respondent’s
decision to suspend her and subsequently
dismiss her on 19 May 2009 was unlawful.
[43]
The respondent denies that it was obliged
to serve the respondent with a notice of her suspension or to afford
her any hearing prior
to the alleged suspension because it denies
that the applicant was in fact suspended. It states that it
followed its procedure
laid down in the disciplinary code and
procedure when the applicant made contact with her impossible and her
failure to advise
it of her whereabouts.
[44]
The respondent contends that the applicant
was dismissed for having absconded and/or deserted. Her
dismissal was effected
in line with the respondent’s policy
which provides that absence from work for a period of five
consecutive days will be
deemed as abscondment, thus resulting in the
termination of employment. Following termination of her
employment and in line
with the respondent’s abscondment
policy, it advised the applicant of her right to lodge an appeal
against her dismissal.
However, the applicant failed to
exercise her right of appeal and elected to launch this application.
The respondent’s
challenge to the Court’s jurisdiction
[45]
As mentioned earlier, the respondent denies that
its disciplinary code and procedure form part of the terms and
conditions of the
applicant’s contract of employment. It argues
that therefore, the applicant’s claim, properly construed,
relates to
a right not to be unfairly dismissed as contemplated in
terms of the LRA.
[46]
For the reasons that follow, I am not convinced that the respondent’s
disciplinary code and procedure form part of the
terms and conditions of the applicant’s contract of employment.
[47]
The disciplinary code and procedure is in
the form of a collective agreement concluded between the respondent
and two unions, namely
the Public Servants Association of South
Africa and National Education Health and Allied Workers Union.
Nowhere in the collective
agreement does it state that the provisions
of the collective agreement are incorporated into or form part of the
terms and conditions
of any of the employees’ (as defined in
the collective agreement) contracts of employment or any alike
reference that could
sustain such conclusion. Similarly,
nowhere in the applicant’s contract of employment is any
reference made to this
collective agreement, or more importantly,
that the provisions of the collective agreement are incorporated and
form part of the
terms and conditions of her contract of employment.
[48]
The applicant has not pleaded that these
provisions are implied terms and conditions of her contract of
employment. The applicant
has simply pleaded that the
disciplinary code and procedure and abscondment policy have been
incorporated into and are part of
her contract of employment.
In her replying affidavit, and in response to the respondent’s
challenge to the alleged
incorporation of the code and procedure, the
applicant merely states that:
“
the
disciplinary code and procedure and the [abscondment policy] apply to
all the employees of the respondent including myself and
as a result,
constitute terms and conditions of my contract of employment”
No basis has been provided to sustain
these conclusions. On this premise alone, the applicant’s
application ought to
fail.
[49]
In
SAMSA
v McKenzie
[11]
the Court dealt with an allegation that a contractual claim arose
because the contract of employment was subject to the condition
that
it could not be terminated without just cause. The Court held
that where no support for the pleaded term is to be found
in the
written contract, the allegation that the pleaded term was expressly
agreed can be rejected.
[12]
The Court held that:
“
in
the present case, the issue is whether Mr McKenzie’s contract
contains a term implied by law as pleaded by him. That
is a
question within the court’s jurisdiction and in my view the
answer is that it does not”
[13]
[50]
In
Lamprecht
and Another v McNeillie,
[14]
it was held that:
“
in
order for the employee to succeed, … he had to prove a
contract (express or tacit) containing a provision (also express
or
tacit) incorporating the rules of natural justice”
[51]
In
Transman
(Pty) Ltd v Dick,
[15]
the Court considered whether the employee had “
made
out a case for a contractual pre-dismissal hearing”
and concluded as follows:
“
In
the present case the duty was on the employee not only to plead a
contractual claim but also to prove the facts from which the
contended tacit term could be inferred. This, the employee has
failed od o and as a result there is no factual basis for
importing
into the employment agreement the term that he was entitled to a
hearing before the board terminated his employment.
In fact he
has failed to plead the terms of the employment agreement between
himself and the employer. Therefore he has not
satisfied the
requirements of the test for importing terms into a contract.
Accordingly the court below erred in assuming
that his employment
contract was ‘subject to an implied term that he would be
afforded as fair hearing before he was dismissed’.
It
follows that the appeal must succeed.”
[16]
[52]
Therefore, unless the alleged contractual
right is apparent
ex facie
the
contract of employment, the alleged existence of such right must be
rejected. In the matter before me, there is no such
right
apparent from the applicant’s contract of employment.
[53]
In
McKenzie
the Court also specifically dealt with the judgments of
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[17]
and
Boxer
superstores Mthatha v Mbenya.
[18]
which decisions are relied upon by applicant and are said to have the
effect of imputing into contracts of employment a right to
a fair
hearing prior to dismissal.
[19]
[54]
In relation to the
Gumbi
judgment, was not called upon to decide
in what circumstances an employee had a right to a pre-dismissal
hearing. The sole
dispute there was the ambit of that right,
and in particular, whether the failure by the employee to take the
opportunity to be
heard had the result that the employer had failed
to fulfil its contractual obligation. The entitlement to such a
hearing
was not in dispute nor were any of the points considered in
this case raised.
[55]
I am in agreement with counsel for the
respondent that in relation to
Boxer
Stores
, which in turn relied on
Gumbi
,
the Court held that the finding in
Gumbi
,
which is relied upon in
Boxer Stores
was obiter and its repetition in
Boxes
Superstores
does not take the matter
any further. Whether the contract relied upon by the employee indeed
entitled her to a hearing was accordingly
not an issue before the
Court, and was not necessary for its decision.
[56]
The
applicant’s reliance
in
casu
on
the judgment of
Murray
v Minister of Defence
[20]
to assert a contractual right to a fair hearing is misplaced. The
Murray’s
judgment
relates employees in the Navy who are expressly excluded from the
operation of the LRA.
[57]
Returning to the collective agreement at
the centre of this applicationand having regard to the objectives of
the collective agreement
(clause 3), they do not support the
conclusion that a single one of the objectives of the collective
agreement was to make the
provisions thereof terms and conditions of
the employees’ contracts of employment. The fact that its
scope and application
(clause 5) states that “
This
disciplinary Code and Procedure applies to all Employees in the
Bargaining Unit”
does not take the matter any
further, nor does it make them terms and conditions of the contract
of employment. It does not
have the effect of elevating
practices and procedures to terms and conditions of contracts of
employment.
[58]
In
conclusion, it is clear, at least in my mind, that the real issue
that the applicant disputes is the fairness of her suspension
and
dismissal. This much is also evident if regard is had to her
founding affidavit where she states in paragraph 7.1 that
she was
unfairly
suspended.”
Therefore,
I find that when properly construed, the applicant’s dispute in
this matter relates to a right not to be unfairly
suspended and
dismissed, as contemplated in s 185 of the LRA. The remedies
for a breach of that right are contained in s
194 and must be
adjudicated through procedures prescribed in s 191 of the LRA.
The right relied upon is entirely statutory
in origin and content and
gives rise to no contractual obligation.
[21]
Costs
[59]
In terms of the provisions of ss 162(1) and
(2) of the LRA, I have a wide discretion where it comes to the issue
of costs.
Given the circumstances of this specific case, I deem
it just and equitable to make no order as to costs.
Order
[60]
In the premises I make the following order:
1.
The application is dismissed
2.
There is no order as to costs.
L
M Malan, AJ
Acting
Judge of the
Labour
Court of South Africa
APPEARANCES:
For the
applicant: Advocate Mastenbroek
Instructed
by Mpoyani Ledwaba Incorporated
For
the respondent: Advocate Kutumela
Instructed
by Hogan Lovells
[1]
Affidavit
in support of the interlocutory application for the referral to oral
evidence: p 3, para 14.
[2]
Affidavit
in support of the interlocutory application for the referral to oral
evidence: p 3, para 15.
[3]
Centirugo
AG v Firestone (SA) Ltd
1969 (3) SA 318
(T) at 320E.
[4]
Isaacs
and Others v University of the Western Cape
1974 (2) SA 409
(C) at
411H.
[5]
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others (2013) 34 ILJ 945
(LC) at para
59.
[6]
1999
(3) SA 304
(LAC); (1998) 19 ILJ 1425 (LAC) at para 54.
[7]
(Madnitsky
v Rosenberg
1949 (2) SA 392
(A) at 398/9).
[8]
(2000)
21 ILJ 386 (LC) at para 44.
[9]
2007
(5) SA 620 (CC).
[10]
(2012)
33 ILJ 727 (LC).
[11]
(2010)
3 All SA 1
(SCA).
[12]
SAMSA
v McKenzie
(2010) 3 All SA 1
(SCA).
[13]
SAMSA
v McKenzie
(2010) 3 All SA 1
(SCA) para 58.
[14]
Lamprecht
and another v McNeillie
[1994] ZASCA 45
;
1994 (3) SA 665
(A).
[15]
2009
(4) SA 22
(SCA).
[16]
Transman
(Pty) Ltd v Dick
2009 (4) SA 22
(SCA) para 30.
[17]
2007
(5) SA 552
(SCA).
[18]
2007
(5) SA 450
(SCA).
[19]
(2010)
3 All SA 1
(SCA) at para 38; Applicant’s heads of argument,
para 6.6.
[20]
2009
(3) SA 130
(SCA).
[21]
SAMSA
v McKenzie
(2010) 3 All SA 1
(SCA) at para 9, 16, 21