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[2015] ZALCD 14
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Reddi v University of KwaZulu Natal (D827/13) [2015] ZALCD 14; [2015] 6 BLLR 625 (LC); (2015) 36 ILJ 1915 (LC) (4 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
CASE
NO.: D827/13
DATE:
04 FEBRUARY 2015
Reportable
In
the matter between:
ANUNATHAN
REDDI
...............................................................................
Applicant
And
THE UNIVERSITY
OF KWAZULU-NATAL
.......................................
Respondent
Heard: 09
September 2014
Delivered: 04
February 2015
Summary:
Jurisdiction— Dismissal; employer terminating a disciplinary
hearing mid-stream and terminating employment; employee
alleges
breach of a statutory right and a contractual right to a fair
hearing; whether employee entitled to an order directing
resumption
of the disciplinary hearing, or whether employee to approach the
CCMA. Court lacks jurisdiction.
Power of
labour court—exceptional circumstances pertain to the exercise
by court of its power, and not about whether court
has jurisdiction.
JUDGMENT
MOOKI AJ
[1]
The applicant is the former head of the Department of Cardiothoracic
Surgery at the Inkosi Albert Luthuli Hospital in the Faculty
of
Health Sciences at the University of Kwazulu-Natal, the respondent.
The respondent dismissed the applicant on 7 June 2013, when
the
Vice-Chancellor of the respondent wrote to the applicant advising him
of the termination of the applicant’s employment.
The
termination of employment was effected midstream a disciplinary
enquiry in which the respondent had charged the applicant with
misconduct.
[2]
The applicant brought an urgent application following his dismissal.
The matter came before Tlhotlhalemaje AJ who heard the
matter on 17
October 2013. The court gave judgement in November 2013. The
applicant then sought to appeal the judgement. The application
for
leave to appeal was dismissed on 9 April 2014. Tlhotlhalemaje AJ, in
dismissing the application for leave to appeal, pointed
out that the
substance of the judgement handed down in November 2013 was that the
matter was struck from the roll and, for that
reason, the applicant
could enroll the matter in the ordinary course.
[3] The applicant
now seeks an order:
1…
2 Setting aside the
applicant’s dismissal on 7 June 2013;
3 Directing the
respondent to continue with the disciplinary hearing of the applicant
summarily terminated by the respondent, until
it is concluded;
4 In the alternative
to prayer 3, directing that the appeal procedure afforded by the
respondent include the opportunity for the
applicant to present his
defence to the disciplinary charges laid against him, through the
leading of witnesses, and through oral
evidence;
5 Directing the
respondent to reinstate the applicant to his position of employment
on the same terms as those pertaining immediately
preceding his
dismissal on 7 June 2013;
6 Granting the
applicant costs; and
7 For further or
alternative relief.”
[4]
The respondent advised the applicant on 29 March 2012 that it
intended to suspend him pending the outcome of disciplinary
proceedings.
The applicant was invited to show cause why he should
not be suspended. The applicant indicated why he should not be
suspended.
He was suspended regardless.
[5]
The respondent notified the applicant on 11 May 2012 that it was to
institute disciplinary proceedings against him. The respondent
alleged five instances of misconduct on the part of the applicant.
The disciplinary hearing commenced on 11 June 2012. The hearing
continued over a non-continuous period of almost a year, until the
termination of the applicant’s employment on 7 June 2013.
The
applicant had not presented his defence at the time when he was
notified of the termination of his employment.
[6]
The Vice-Chancellor of the respondent gave various reasons for
terminating both the hearing and employment of the applicant,
including that:
6.1
The disciplinary enquiry ought to have been finalised in the time
allocated to it and that the reason this had not occurred
was because
of the unduly lengthy cross-examination of the University witnesses
which amounted to an abuse of the disciplinary
enquiry process;
6.2
The disciplinary enquiry was time-consuming and costly and a gross
abuse of the University’s resources; and
6.3
The charges against the applicant were serious and constituted
misconduct. The decision was therefore taken to terminate his
employment on the grounds set out in the charges.
6.4
The applicant was advised, in the termination letter, that he could
appeal the decision of the University, in terms of clause
18.3.4 of
the respondent’s Conditions of Service. The clause provides as
follows:
“
Any appeals
(sic) against a recommendation made for dismissal or the imposition
of a warning must made in writing setting out the
grounds of appeal,
within 4 (four) working place of such a recommendation, to the
Employee Relations Office”.
[7]
The applicant submitted an appeal within the specified period. The
applicant indicated in his appeal that his dismissal was
both
substantively and procedurally unfair and that he had not been
afforded an opportunity to respond to the allegations made
against
him and that he was dismissed before the University concluded its
case and before he could present his defence.
[8]
The filing of the appeal was followed by an exchange between the
applicant and the respondent pertaining to the appeal process.
The
applicant contended that he should be allowed to present evidence
during the appeal. The respondent disagreed, stating that
the appeal
be considered only on the record. The parties reached a stalemate on
this issue. The applicant then approached the court
for relief as set
out above.
[9]
The applicant pleads, notwithstanding that he lodged an appeal, that
the respondent deprived him of his contractual right to
appeal
against a recommendation of dismissal as set out in clause 18.3.4 of
the Conditions of Service because there was no recommendation
of
dismissal against which he could appeal.
[10]
The applicant seeks relief on the basis that he has a right to a fair
disciplinary enquiry and that he has a right to be heard.
He contends
that the right is founded in contract and on statute. He relies on
clause 18.3.1 of the Conditions of Service in relation
to the claim
based on contract. Clause 18.3.1 provides that:
“
Any
disciplinary action taken against a staff member shall be in
accordance with a disciplinary procedure regulated by a collective
agreement or, in the absence of such an agreement, shall comply with
the requirements of the Labour Relations Act, and, in particular,
Schedule 8 “Code of Good Practice” of the Act”.
[11]
The applicant relies on section 188 (1) (b) of the LRA, read with
paragraph 4 of Schedule 8 of the Code of Good Practice: Dismissal
(“the Code”), for his statutory claim. The applicant
contends that there were no exceptional circumstances that justified
the respondent to unilaterally terminate the enquiry and to dismiss
him.
[12]
The applicant says in his affidavit that it is unnecessary for the
court to consider or to express a view on the merits of
the
allegations against him. He avers that his dismissal is procedurally
unfair because he was not afforded a fair hearing. He
has approached
the court to set aside his dismissal and to compel the respondent to
either continue with the disciplinary hearing
or to allow him to
present oral evidence in the appeal, including calling witnesses.
Such relief, according to the applicant, would
afford him his
statutory and contractual rights to
audi alteram partem.
[13]
The applicant says that the court, and not the CCMA, ought to
consider the relief that he seeks. That is because recourse to
the
CCMA will result in a full re-hearing of the merits; that it would be
far more protracted than the completion of the disciplinary
enquiry;
that a finding in the CCMA would result, at best, in an award of
compensation; that he was due to retire and that proceedings
before
the CCMA were unlikely to be concluded before his retirement date and
that the CCMA would therefore not reinstate him to
his previous
position, thus foregoing the opportunity to clear his name within the
respondent before his retirement.
[14] The applicant
summarised his complaint as follows:
“
This matter
is not simply about money to me: it is about principle, my right to a
specific compliance with my contractual right
to a fair hearing in
accordance with the respondent’s own procedures, as well as my
right to fair labour practices enshrined
in section 35 of the
Constitution of the Republic of South Africa, 1996. My case is about
the University riding roughshod over
my rights to
audi alteram
partem
, and then expecting to buy its way out of this abuse. It
is also about the opportunity for me to present my case, have a fair
hearing,
and to retire in dignity with my good name and reputation
intact.”
[15]
The respondent pleads that its offer of an appeal remains available
to the applicant. The applicant contends that the appeal
process
would simply perpetuate the procedural unfairness of the disciplinary
enquiry because the respondent does not agree to
“a wide
appeal” in which the appeal body “would be given the
power to review and set aside the decision of the
University to
dismiss me, and would include a right to lead oral evidence, and
thereby provide me with the opportunity to present
my defence
properly.”
[16]
The respondent pleads that the court lacks jurisdiction and that the
applicant should approach the CCMA because the main relief
sought by
the applicant is that his dismissal for misconduct be set aside and
that he be reinstated to his former position. The
applicant took
note, in his replying affidavit, that the respondent admits that the
applicant was dismissed for misconduct.
[17]
The applicant denies that he seeks to be reinstated to his former
position. He avers that “The relief that I seek in
the notice
of motion clearly states that I seek to be placed in the position I
would have been in but for the University’s
unlawful conduct in
prematurely terminating the disciplinary proceedings. The
disciplinary enquiry will then continue as it had
before, and I will
remain on suspension pending the outcome of the disciplinary
enquiry.”
[18]
The applicant denies that the court lacks jurisdiction to determine
the matter, in that “I am advised that in egregious
cases of
unfair dismissal proceedings, the Labour Courts have affirmed that
they will intervene to prevent injustice, rather than
to adopt the
attitude that an employee must seek redress in the CCMA.” The
applicant also avers that the respondent’s
contentions
regarding the CCMA as an alternative remedy “is no answer to my
cause of action based on contract for specific
performance…”.
[19]
The applicant admits in the pleadings (in the sense that he does not,
in his replying affidavit, deal with the specific allegations
in the
answering affidavit) that his rights are determined by the guidelines
set out in the Code because the respondent had no
separate
disciplinary procedure and that there was no collective agreement.
The applicant also admits, on the same basis, that
he was afforded an
appeal even though the Code does not provide for an appeal hearing.
[20]
The parties disagree about whether “exceptional circumstances”
existed that justified the respondent terminating
the disciplinary
enquiry and dismissing the applicant. The applicant contends that
there were no such “exceptional circumstances”.
He
denies, for example, that witnesses for the respondent were unduly
cross-examined. The respondent, on the other hand, points
out for
example that the hearing started on 11 June 2012 during which its
first witness gave evidence-in-chief and was cross-examined
on the
same day. The cross-examination of the first witness continued on 12
June 2012, 15 June 2012, 20 July 2012, 23 July 2012,
and on 24 July
2012, on which day the first witness was re-examined.
[21]
Mr Aboobaker SC and Mr Reddy appeared on behalf of the applicant. Ms
Naidoo appeared on behalf of the respondent.
[22]
The court must first be satisfied that it has jurisdiction to
determine the dispute. The respondent contends that the court
lacks
jurisdiction. The parties agree that the applicant was dismissed. The
applicant contends that such dismissal was unfair both
substantively
and procedurally. The respondent contends that it was entitled to act
as it did in terminating the hearing and dismissing
the applicant.
[23]
Ms Naidoo submitted that the case pleaded by the applicant falls
squarely within the statutory scheme that such disputes be
determined
by the CCMA. She further submitted that the distinction sought to be
drawn by the applicant between a statutory and
a contractual right
based on clause 18.3.1 was artificial. She submitted that clause
18.3.1 does not confer rights on the applicant
that are not already
conferred by the Labour Relations Act and the Code. There is no
collective agreement governing labour relations
within the
respondent. Ms Naidoo submitted that absent such a collective
agreement, any meaning to be ascribed to clause 18.3.1
of the
Conditions of Service is constrained by the law governing dismissals,
which illustrates why the distinction drawn was artificial.
[24]
Mr Aboobaker did not address the submission by Ms Naidoo that the
distinction drawn by the applicant was artificial.The applicant,
in
his replying affidavit, avers that the respondent’s point on
jurisdiction was not an answer to the applicant’s reliance
on a
cause of action premised on a contractual right. The applicant admits
therefore that that part of his cause of action that
is premised on a
statutory right is bad in law in the sense that he should have sought
recourse in the CCMA for a breach of such
a statutory right.
[25]
Mr Aboobaker submitted that section 158 (1) (a) (iii) confers power
on the court to determine the dispute without the applicant
first
having to refer the matter to the CCMA; and that the court ought to
exercise its discretion by directing the respondent to
resume
disciplinary proceedings against the applicant.
[26]
Assuming that the court has a discretion in the manner and on the
bases submitted by Mr Aboobaker, such discretion must be
exercised
lawfully. Part of the considerations as to the lawfulness of
exercising such discretion must take into account the particular
right being invoked as the basis for decision-making by the court. In
the context of this matter, the court must have regard to
clause
18.1.3 and give effect to its provisions.
[27]
Absent a collective agreement governing dealings between the
applicant and the respondent, as is the case in this matter, the
court would have to have regard to the Labour Relations Act and to
the Code regarding dismissals. I am unable to conceive how a
court
could interpret the LRA and the Code, as regards dismissals, other
than in accordance with the current law and the framework
for that
law. Such a framework is set out in the LRA, particularly section
191. I agree with the submission by Ms Naidoo that the
specific
provisions in section 191 of the LRA dealing with the appropriate
forum for determining disputes has a degree of primacy
over the court
acting in terms of a discretionary power. If this were not the case,
then the court would find itself as a forum
competing with specified
tribunals such as the CCMA. This will result in an outcome that is
contrary to the LRA scheme that governs
processes to be followed in
the resolution of labour disputes. The court is not intended to be
the first port of call in the resolution
of such disputes.
[28]
I agree with the submission by Mr Aboobaker that a litigant can
approach a court for relief and that a court will not allow
an
injustice to be done. The submission really amounts to a statement
that the law does not permit a vacuum. The fact that a litigant
can
approach a court for relief does not mean that a court will entertain
such relief on the merits. This is consistent with the
finding by the
appeal court in Booysen v Minister of Safety and Security and
Others
[1]
that the fact that the
court has power to grant a remedy does not mean that the court has
jurisdiction to determine the issue
between the parties.
[29]
I am not persuaded, even if the court has the power as submitted on
behalf of the applicant, that the court ought to exercise
that power
in the circumstances of this case and, among others, direct the
respondent to set aside the dismissal and to resume
disciplinary
proceedings against the applicant. The substance of the dispute
concerns the dismissal of the applicant. The applicant
pleads that
the dismissal was unfair both procedurally and substantively. The
applicant says however that the court need not entertain
the merits
of the dispute between the parties. I do not see how the court could
grant the relief sought by the applicant, such
as setting aside his
dismissal, when the applicant says that the court need not consider
the merits of the dispute between the
parties.
[30]
The exercise by the court of power granted to it in section 158 (1)
(a) (iii) does not arise in this matter, on the view that
I take
regarding the challenge to the court’s jurisdiction. Section
158(1) (a) (iii) does not confer jurisdiction on the
court. It sets
out part of the power of the court. Such power can be exercised only
if the court has jurisdiction.
[31] The court must
have regard to the pleadings when dealing with the challenge to its
jurisdiction.
[2]
The court, in
motion proceedings, will consider the notice of motion and the
affidavits in determining the issue of jurisdiction.
[3]
This matter is concerned with the dismissal of the applicant. This is
so despite the applicant’s averments that the issue
is about a
breach of his statutory and contractual right to a fair disciplinary
hearing. Both parties agree that the applicant
is dismissed. The
applicant complains that his dismissal was unfair, both procedurally
and substantively. Section 191 of the Labour
Relations Act prescribes
how the applicant must pursue his complaint.
[32]
The cause as pleaded by the applicant does not provide scope for the
court to intervene and to make an order sought by the
applicant. The
“contractual right” being asserted by the applicant, on
the pleadings, does not grant the applicant
an entitlement beyond
what the law grants any other employee. Any other employee would, on
the case pleaded by the applicant, assert
a “contractual right
to a fair disciplinary hearing” entitling such an employee to
approach the court for relief to,
among others, set aside a dismissal
without such an employee having to follow the statutory scheme
governing dismissals.
[33]
The CCMA is the appropriate forum to deal with the dismissal of the
applicant.
[4]
This is so despite
the contention by the applicant that he seeks to vindicate a
contractual right. The applicant’s reliance
on the decision in
Denel (Pty) Ltd v Vorster
[5]
is
not on point. The particular “contractual right” asserted
by the applicant is no more than what the law provides
to any other
employee. The substance of this dispute concerns the dismissal of the
applicant. The applicant is aggrieved by how
the dismissal was
effected.
[34]
The applicant has not shown that clause 18.3.1 of the Conditions of
Service is a self-standing right that would allow this
court to
assume jurisdiction. I agree with the respondent that the court lacks
jurisdiction. This determination makes it unnecessary
for the court
to consider the substance of allegations by the applicant, including
whether the court can order his “reinstatement”.
[35] I make the
following order:
1.
The application is dismissed.
2.
There is no order as to costs.
O
Mooki
Judge
of the Labour Court (Acting)
APPEARANCES:
Applicant:
T. N. Aboobaker SC (together with G Reddy)
Instructed
by: Reddy Attorneys
Respondent:
L.R. Naidoo
Instructed
by: Jayshree Moodley and Associates
[1]
[2011]
1 BLLR 83
(LAC), para [41].
[2]
Gcaba v Minister of Safety and Security
2010 (1) SA 238
(CC), para
[74-75].
[3]
De Beer v Minister of Safety and Security and Others
[2013] 10 BLLR
953
(LAC), para [30].
[4]
SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA),
[para 16].
[5]
[2005] 4 BLLR 313
(SCA).