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[2015] ZALCPE 49
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Mokae and Others v Department of Economic, Small Business Development, Tourism and Environmental Affairs (P236/15) [2015] ZALCPE 49 (2 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case No: P236/15
In
the matter between
MASISI
MOSES
MOKAE
First Applicant
CHRISTINE
VAN
HEERDEN
Second Applicant
KELOAPERE
DORCAS
PUTSOA
Third Applicant
and
DEPARTMENT
OF ECONOMIC, SMALL
BUSINESS
DEVELOPMENT, TOURISM
AND
ENVIRONMENTAL
AFFAIRS
Respondent
Heard:
19 November 2015
Delivered:
2 December 2015
Summary:
Applicants whose contracts of employment have been terminated in
terms of section 17 (3) of the Public Service Act
of 1994 are
required to refer unfair dismissal disputes to conciliation before
approaching the Labour Court for relief. Absent
the referral to
conciliation the Labour Court lacks jurisdiction to reinstate
applicants whose contracts of employment have been
terminated in
terms section 17 (3) of the Public Service Act pending finalisation
of an application for leave to appeal against
a judgment which is of
no relevance to the respondent.
JUDGMENT
LALLIE,
J
[1]
This application was originally launched on an urgent basis. It was,
however, struck off the roll on 31 July 2015 for lack of
urgency.
When it was argued on 19 November 2015, the applicant sought an order
in the following terms:
‘
3.1
Reviewing and/or setting aside alternatively, declaring the decision
of the Respondent to transfer
and/or absorb the applicant to or into
different posts and/or position while the dispute in respect of same
is pending at the Labour
Court under Case Number P272/2013, unlawful
and/or invalid.
3.2
Reviewing and/or setting aside, alternatively, declaring as the
respondent’s decision
to dismiss the Applicants in terms of
Section 17 (3) (a) of the Public Service Act, hereinafter referred to
as the Act, while the
matter in relation to same is pending at the
Labour Court under Case Number P272/2013, unlawful and/or invalid;
3.3
That the Respondent be interdicted and prohibited from transferring
and/or absorbing and/or
dismissing the Applicants and/or preventing
them from entering their workplace and/or acting in any manner
against the Applicants
in relation to the matter until the
finalization of their pending Application under Case Number P
272/2013.’
[2]
The application is opposed by the respondent. The factual background
of this matter is that the applicants were employed by
the
respondent. Their core function was to inspect liquor outlets and to
ensure compliance with liquor licence requirements. In
2008, they
were seconded to an entity called the Liquor Authority. In June 2010,
the respondent merged the Liquor Authority with
the then Free State
Gambling and Racing Board (“FSGRB”) and formed the Free
State Gambling and Liquor Authority (“FSGLA”).
A dispute
ensued about the absorption of employees into the FSGLA. In an effort
to resolve the dispute, an agreement regulating
placement of
employees in the FSGLA was concluded between the FSGLA and trade
unions representing employees performing duties at
the FSGLA. The
latter failed to comply with the terms of the agreement and the
unions referred the dispute to the CCMA. The dispute
was resolved by
the parties reaching an agreement which was made an arbitration
award. The respondent sought to place the applicants
in positions in
its department.
[3]
The trade unions launched an application under case number P272/2013
to make the arbitration award an order of court and for
the
respondent and the FSGLA to transfer the applicants to the FSGLA in
terms of section 197 of the Labour Relations Act 66 of
1995 (“the
LRA”) and agreements entered into between the parties. The
application was dismissed and on 15 June 2015,
the applicants filed
an application for leave to appeal against the judgment dismissing
their application. While that application
was pending, the applicants
filed the application at hand.
[4]
On 26 May 2015, the respondent addressed letters to the applicants
reminding them of the posts that were identified for them
subsequent
to the decision of the Provincial Executive Committee [EXCO] to have
former employees appointed in the Liquor Affairs
Sub-directorate
absorbed within the respondent. It gave them a final opportunity to
immediately report for duty at the posts identified
for them failing
which it would invoke provisions of section 17 (3) (a) (i) of the
Public Service Act of 1994 (“the PSA”)
and freeze their
salaries. The applicants responded by requesting that all processes
and proceedings against them be put in abeyance
pending the outcome
of the application for leave to appeal. Further correspondence was
exchanged between the parties and on 6 July
2015, the applicants
received letters of termination of their services in terms of section
17 (3)(a)(i) of the PSA. The applicants
requested the respondent to
restore the
status quo unte
until the finalisation of the
application for leave to appeal. Their request was not granted. On 8
July 2015, the applicants went
to work with the intention of holding
a meeting with or making submissions to management of the respondent
to resolve the issue
but were refused entry and shown a letter
confirming their dismissal. On 10 July 2015, they filed an urgent
application. After
the urgent application was struck off the roll,
the applicants made presentations to the MEC in terms of section 17
(b) of the
PSA. The MEC refused to overturn the decision to have
their contracts of employment terminated and they referred an unfair
dismissal
dispute to the Bargaining Council.
[5]
The respondent’s grounds for opposing the application are that
this court lacks jurisdiction to review the decision terminating
the
applicants’ contracts of employment in terms of section 17 (3)
(a) of the PSA as their unfair dismissal dispute has not
been
arbitrated by the Bargaining Council. It further submitted that the
applicant’s application to this court under case
number
P272/2013, the judgment flowing there from as well as the application
for leave to appeal are of no relevance to the contracts
of
employment between the applicants and the respondent. The reason
being that those proceedings seek to enforce an agreement between
the
new liquor authority and trade unions by transferring the applicants
from the respondent to the new liquor authority. As the
applicants
are and have always been employees of the respondent, the judgment
and the application for leave to appeal against it
are not of any
relevance to the applicant’s placement and absorption by the
respondent which had control, authority over
and paid their salaries
as their employer.
[6]
The relief sought by the applicants is an order interdicting and
prohibiting the respondent from transferring and/or absorbing
and/or
dismissing them and/preventing them from entering the workplace
and/or acting in any manner against the applicants in relation
to the
matter until the finalisation of the application for leave to appeal
under case number P272/2013. The applicants conceded
that the
respondent is not a party to the agreement and arbitration award that
it sought to enforce in the application under case
number case number
P272/2013. Having made the concession, they failed to establish the
relevance of the application for leave to
appeal to the respondent.
There is, therefore, no basis to interdict the respondent from taking
any step against the applicants
based on the filing of the
application for leave to appeal under case number P272/2013. In
addition, when the application at hand
was filed, steps had already
been taken as the applicant’s contracts of employment had
already been terminated.
[7]
With regard to the order the applicants seek for the reviewing and
setting aside, alternatively, declaring unlawful and/or invalid
the
respondent’s decision dismissing them in terms of section 17
(3) of the PSA, it must be noted that when the applicants
launched
the application at hand, they had already been dismissed by operation
of section 17 (3) of the PSA. They seek an order
of reinstatement
pending the finalisation of their application under case number
P272/2013. The respondent’s submission that
this court lacks
jurisdiction to pronounce on the lawfulness of validity of the
applicant’s dismissal is correct. Section
191 of the LRA
bestowed on the CCMA and bargaining councils jurisdiction to
determine unfair dismissal disputes. The following
dictum
in
De
Beer
v Minister of Safety and Security/Police and Another
[1]
is apposite:
‘
[38]
.... In order for the appellant to be “reinstated forthwith to
his full salary, benefits and
emoluments”, as he claims, he
would have to be reinstated in his employment. The court would, as a
matter of necessity, have
to decide on the fairness of the
termination of his employment. The appellant cannot be reinstated in
his employment, unless the
court finds that his dismissal was
substantively unfair.
[39] In
the circumstances, the court
a quo
ought to have found that it
had no jurisdiction to effectively adjudicate the termination of the
appellant’s employment with
SAPS in the circumstances where
there has been no compliance with the jurisdictional requirements
provided for in section 191 and
section 24 of the Act.’
[8]
In
National
Union of Metalworkers v Intervalve (Pty) Ltd and Others
,
[2]
the court found that unfair dismissal disputes have to be referred to
conciliation at the CCMA or bargaining council in terms of
section
191(5) of the LRA before their referral to the Labour Court for
adjudication. Without the referral to conciliation, the
Labour Court
lacks jurisdiction over unfair dismissal disputes. As the applicants
seek reinstatement, they had to fulfil the jurisdictional
requirement
which is the referral of their unfair dismissal dispute to the
bargaining council in terms of section 191 of the LRA.
As this
application was not preceded by the referral, this court lacks
jurisdiction to adjudicate the matter.
[9]
The respondent sought a costs order against the applicants. I am not
convinced that the applicants acted unreasonably in bringing
this
application. Considerations of both the law and fairness do not
justify the order. In considering costs orders, this court
needs to
be mindful of the reality that they have the unintended consequence
of acting as a deterrent to employees seeking to assert
their rights.
[10]
In the premises, the following order is made:
10.1
The application is dismissed.
____________________________
Lallie, J
Judge
of the Labour Court of South Africa
Appearance
:
For
the Applicant: Mr Khang of Mphafi Khang Inc
For
the Respondent: Advocate Skhosana SC
Instructed
by: State Attorney
[1]
[2013] 10 BLLR 953
(LAC) at paras 38-39.
[2]
(2015) 36
ILJ
363 (CC) at paras 112-113.