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[2015] ZALCD 6
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Ravhura v Zungu NO and Others (D1035/14) [2015] ZALCD 6; [2015] 4 BLLR 423 (LC); (2015) 36 ILJ 1615 (LC) (15 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Case NO: D1035/14
DATE: 15 JANUARY
2015
REPORTABLE
In the matter
between
ENOS MASHAKA
RAVHURA
.......................................................
Applicant
And
DR. SM ZUNGU
N.O
.........................................................
First
Respondent
MEC: HEALTH,
KWAZULU-NATAL
............................
Second
Respondent
NHLANHLA MATHE
N.O
..............................................
Third
Respondent
Heard: 05
December 2014
Delivered: 15
January 2015
Summary: Urgent
application seeking an order declaring the decision of the first
respondent to dismiss applicant to be unlawful
- a decision regarding
the lawfulness of a dismissal will call for a preliminary finding on
the allegations of serious misconduct
on the part of the applicant as
well as a determination of the fairness of the employer's dismissal –
application dismissed.
JUDGMENT
CELE
J
Introduction
[1]
The applicant has approached this Court on urgent basis in terms of
section 158 (1) (a) of the Labour Relations Act
[1]
,
seeks an order declaring the decision of the first respondent to
dismiss him unlawful, void
ab
origine
and of no force and effect, together with ancillary relief consequent
thereupon directing the third respondent to deliver a sanction,
alternatively the first and second respondents to impose the sanction
recommended to them by the third respondent.
Factual
Background
[2]
The applicant was in the employment of the first and second
respondents holding the position of a Chief Financial Officer. At
the
time material to this matter, he had eighteen years experience with
the Department of Health: KwaZulu-Natal, the Department.
He had
various charges of gross misconduct preferred against him, in the
procurement process and involving dishonesty, and in an
internal
disciplinary hearing presided over by the third respondent on 26
September 2014, he was found guilty of a number of such
charges.
[3]
The third respondent disclosed to the applicant that he was unable to
make any recommendation to the employer at that stage
seeing the
parties had yet to submit mitigating or aggravating circumstances The
applicant and first respondent’s representatives
duly made
their submissions in mitigation and aggravation and, at that stage,
the applicant took no issue with the declaration
of the third
respondent that he was in fact only going to be concerned with making
a recommendation to the employer with regard
to sanction. On 15
October 2014, the third respondent duly dispatched a recommendation
to the first respondent. That recommendation
in light of the findings
regarding guilt and the nature of the charges was in the opinion of
the first respondent untenable.
[4]
On 15 October 2014, the first respondent invited the applicant to
submit reasons to why a more serious sanction, including possibly
one
of dismissal, should not be imposed by the first respondent
consequent upon the recommendations. The applicant elected not
to
submit any written representations. On 24 October 2014, the first
respondent communicated to the applicant that it was her decision
to
impose a sanction of dismissal on the applicant given,
inter alia,
the seriousness of the misconduct and the findings of guilt in
relation thereto.
[5]
The applicant challenged the lawfulness of that decision to dismiss
on grounds that:
a)
the third respondent as Chairperson must
pronounce the sanction pursuant to the disciplinary enquiry and the
first respondent must
then only give effect to that sanction;
b)
the first respondent was the complainant
in the enquiry and her decision could hardly be impartial;
c)
the first respondent was not the employer.
That the power to dismiss ultimately rested in the second respondent.
Submissions
[6]
In the circumstances the applicant prayed for a declarator that the
sanction imposed by the first respondent be declared to
be unlawful.
As ancillary relief, the applicant asked that the third respondent’s
recommendation to impose a final written
warning be imposed as the
decision. The applicant placed reliance for his submissions,
inter
alia
,
on an opinion of the Chief Legal Advisor for the Premier who, when
approached for her opinion, said that the decision of the first
respondent was a flagrant violation of the code and was to be struck
down. On urgency he relied on the decision in the case of
Manamela
Nnana
Ida
v Department of Co-Operative Governance Human Settlement Traditional
Affairs Limpopo Province and Others
[2]
where this Court per Snyman AJ held:
‘
[55.3]
The Labour Court would be generally competent to consider and finally
determine urgent applications to challenge suspensions
on the basis
that such suspensions are unlawful and / or invalid, without
exceptional circumstances and compelling considerations
of urgency
having to be shown by such applicants, provided the normal rules
relating to all applications are of course still complied
with. The
contentions of unlawfulness or invalidity can only be founded and
substantiated on the specific text of the rules as
contained and
prescribed in the employer’s own regulatory provisions, and no
reliance can be placed on any implied provision
and especially not
the
audi alteram partem
principle as such implied provision. The Court should further, at all
times carefully consider what the actual and true nature
of the
contention of invalidity and unlawfulness by the Applicant is, in
order to avoid a designated circumvention of the provisions
of the
LRA relating to suspensions under the guise of unlawfulness or
invalidity where it is in fact an issue of unfairness’.
[7]
The applicant contended that the principle set out in the
Ida
-case
above was equally applicable to unlawful dismissal and he said that
he had made a case for urgency, particularly where premised
upon
unlawful conduct by the first respondent. In respect of an alternate
appropriate relief he averred that in light of the
Ida
-case
he did not have any avenue available to him in which to address the
unlawful conduct of the first respondent, saying that
only this Court
could assist and then too, only by declarator. He submitted that an
unlawful conduct of the employer constituted
special circumstances
which warranted the grant of urgent interim or final relief as
envisaged in
Jonker
Wireless Payment System CC
[3]
.
The applicant then made submissions on whether the first respondent
could, in law, impose a sanction other than one issued by
the third
respondent.
[8]
The only respondent who opposed this application was the first
respondent. Such opposition was essentially a submission that
the
first respondent was in law, the officer with power to impose a
sanction following a recommendation issued by the third respondent.
There are four hundred and seventy one (471) cases conducted in the
department, during the first respondent’s tenure in which
not
one sanction has ever been imposed by a chairperson. The practice has
been that the chaiperson issued a recommendation and
submitted the
same for a consideration of its appropriateness by the first
respondent. The first respondent therefore conceeds
that this Court
may issue a diclarator in the event it finds the conduct of the first
respondent to have been unlawful.
Analysis
Could a finding
that the dismissal is unlawful justify the declarator sought by
applicant?
[9]
To the extent relevant in this matter dismissal, as defined in
section 186 (1) of the Labour Relations Act
[4]
,
means that an employer has terminated a contract of employment with
or without notice
[5]
. In this
matter the employer being the Department of Health, KZN, has
terminated a contract of employment with the applicant with
a notice
through its personnel, namely the first respondent. The LRA does not
distinguish between lawful and unlawful dismissals.
On the contrary,
chapter VIII of the LRA deals with unfair dismissals. In
Discovery
Health Limited v CCMA and Others,
[6]
this Court held that a contract of employment concluded with a
foreigner who was not in possession of a work permit, although
unlawful, was not void
ab
initio
.
Such a foreigner was therefore an employee and terminating his
contract because he did not have a work permit constituted a
dismissal.
In
Ndikumdavyi
v Valkenberg Hospital
[7]
the employee’s offer of indefinite employment was withdrawn
three weeks after his appointment because his refugee status
was
about to expire. The
Hospital
argued
that the employment contract was unlawful and therefore a dismissal
as contemplated by the LRA had not taken place. This
Court rejected
that argument on the basis that the phrase “termination of a
contract” in section 186 (1) of the LRA
referred to the
termination of the employment relationship rather than of a contract
in the strict sense. The unlawfulness of the
employment contract was
not the sole determining factor as the fairness of the dismissal had
yet to be considered.
[10]
The case of “
Kylie”
v CCMA and Others
[8]
is yet another example evincing that the presence of unlawfulness in
an employment contract does not necessarily signify that the
employment relationship between the parties concerned will never
enjoy any protection under the LRA and its jurisprudence. The
case
concerned an employment contract between a brothel owner and a sex
worker. The Labour Appeal Court found that there was an
employment
relationship even though there was no valid contract. “
Kylie
”
was found to fall within the scope of the LRA and that she was
entitled to the protection of her dignity in terms of section
23 of
the Constitution Act.
[11]
Accordingly, the presence of unlawfulness on the conduct of one of
the contracting parties in an employment relationship will
not
ipso
facto
result in the other party’s entitlement to the
status
quo
order being granted without the consideration of fairness of such
conduct. In dismissal cases at least, there appears to be no
evidence
of this Court adopting an approach that unlawfulness is a stand-alone
ground for it to intervene in favour of the aggrieved
party, for
instance to the exclusion of the considerations of fairness. Hence a
need that disputes in dismissal cases be referred
to conciliation
first. In my view, a warning has already been given against the
consideration of unlawfulness as a stand-alone
ground, in the case
dealing though with allegations of unlawful suspensions, of
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[9]
where the Court held:
‘…
.
the judge erred in his approach to determining the lawfulness of a
suspension in terms of para 2.7(2). His choice not to consider
the
serious allegations against the respondent was mistaken. As a general
rule, a decision regarding the lawfulness of a suspension
in terms of
para 2.7(2) will call for a preliminary finding on the allegations of
serious misconduct as well as a determination
of the reasonableness
of the employer's belief that the continued presence of the employee
at the workplace might jeopardize any
investigation etc. The
justifiability of a suspension invariably rests on the existence of a
prima facie reason to believe that
the employee committed serious
misconduct. Only once that has been established objectively, will it
be possible meaningfully to
engage in the second line of enquiry (the
justifiability of denying access) with the requisite measure of
conviction. The nature,
likelihood and the seriousness of the alleged
misconduct will always be relevant considerations in deciding whether
the denial
of access to the workplace was justifiable’.
[12]
As a general rule therefore, a decision regarding the lawfulness of a
dismissal will call for a preliminary finding on the
allegations of
serious misconduct on the part of the applicant as well as a
determination of the fairness of the employer's dismissal.
There is
an appropriate warning pronounced by this Court in
Mosiane
v Tlokwe City Council
:
[10]
‘
A
worrying trend is developing in this court in the last year or so
where this court's roll is clogged with urgent applications.
Some
applicants approach this court on an urgent basis either to interdict
disciplinary hearings from taking place, or to have
their dismissals
declared invalid and seek reinstatement orders. In most of such
applications, the applicants are persons of means
who have occupied
top positions at their places of employment. They can afford top
lawyers who will approach this court with fanciful
arguments about
why this court should grant them relief on an urgent basis. An
impression is therefore given that some employees
are more equal than
others and if they can afford top lawyers and raise fanciful
arguments, this court will grant them relief on
an urgent basis.
All
employees are equal before the law and no exception should be made
when considering such matters. Most employees who occupy
much lower
positions at their places of employment who either get suspended or
dismissed, follow the procedures laid down in the
Labour Relations
Act
66 of 1995
(the
Act). They will also refer their disputes to the CCMA or to the
relevant bargaining councils and then approach this court for
the
necessary relief’.
[13]
A
finding that the dismissal is unlawful
will not, in my view, justify the declarator sought by the applicant
who is yet to follow
the procedures laid down in the LRA. It is only
then that the merits and demerits of the full submissions made by the
parties on
whether the first respondent could impose a sanction other
than that of the third respondent, stand to be considered.
[14]
The bases of opposition of this application by the first respondent
are not the bases on which the matter was adjudged. The
requirements
of law and fairness of this matter dictate that each party should
bear its own costs.
[15]
Accordingly, the following order is to issue:
1.
The application is dismissed.
2.
No costs order is made.
Cele
J
Judge of the
Labour Court of South Africa.
APPEARANCES
:
For the
Applicant: Mr I Pillay
Instructed by:
Norton Rose Fulbright Attorneys
For the first
Respondent: Ms C Nel
Instructed
by: The State Attorneys, Durban.
[1]
Act Number 66 of 1995.
[2]
Case Number J1886/2013
[3]
(
2010)
31
ILJ
381 (LC).
[4]
Act Number 66 of 1995, hereafter referred to as the LRA.
[5]
See also section 213 of the LRA.
[6]
(
2003)
24 ILJ 462.
[7]
[2007] 7 BLLR 633 (LC).
[8]
[2010] 7 BLLR 705
{LAC).
[9]
(2012)
33
ILJ
2033 (LAC) at para 28.
[10]
(2009)
30
ILJ
2766 (LC) at paras 15 – 16. See also
Manamela
Nnana Ida v Department of Co-operative Governance
Case Number J1886/2013 dated 5 September 2013 at para 52.