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[2015] ZALCD 49
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NUPSAW obo Mtshali v Mpaphule NO and Others (D552/2013) [2015] ZALCD 49 (25 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Case
no: D552/2013
DATE:
25 AUGUST 2015
Not
Reportable
NUPSAW
obo THAMI ANTHONY
MTSHALI
.....................................................................
Applicant
And
JOSEPH
MPAPHULE N
O
.........................................................................................
First
Respondent
PUBLIC
HEALTH & SOCIAL DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL
...............................................................
Second
Respondent
DEPARTMENT
OF HEALTH
–KZN
.......................................................................
Third
Respondent
Heard:
6 August 2015
Delivered:
25 August 2015
Summary: Review.
Applicant dismissed. Subsequent to dismissal is granted early
retirement (with the concomitant benefits) and resigns.
Application
dismissed.
Judgment
GUSH J
[1]
This is an application in terms of section
158(1)(g) of the Labour Relations Act 66 of 1996 (LRA) to review and
set aside a jurisdictional
ruling issued by the first respondent on
28 March 2013 under case number PSHS 739 – 12/12.
[2]
The
first respondent under the heading “Jurisdictional Ruling”
found that “the alleged unfair dismissal dispute
had no basis
in law or fact and stood to be dismissed” and ruled that: “the
application for the alleged unfair dismissal
dispute is dismissed for
lack of substance”.
[1]
[3]
The applicant seeks a declarator on behalf
of its member (hereinafter the employee) that the second respondent
does have jurisdiction
to arbitrate the unfair dismissal dispute
declared by the employee and that the matter be remitted to the
second respondent for
arbitration within 30 days.
Common Cause
Background
a.
The employee was employed by the third
respondent as the Chief Executive Officer of the Madadeni Provincial
Hospital.
b.
During January 2012, the third respondent
served a notice to attend a disciplinary enquiry on the employee. The
enquiry commenced
on 3 February 2012. The disciplinary enquiry was
concluded on 23 November 2012. The outcome of the enquiry was that
the employee’s
services were to be summarily terminated. The
third respondent directed a letter to the employee dated 30 November
2012 advising
him of the termination of his services.
c.
On 8 October 2012, the employee, before the
conclusion of the disciplinary enquiry, submitted an application to
the third respondent
for early retirement.
d.
In
addition to the employee’s application for early retirement and
before the conclusion of the disciplinary enquiry and the
outcome
thereof, the applicant also, on 19 November 2012, wrote to the third
respondent on behalf of the employee in which letter,
the applicant
applied for employee to be granted early retirement (in the face of
the alleged misconduct) “as he has just
reached the qualifying
age of 55 years”.
[2]
e.
The decision of the disciplinary enquiry
viz that the employee be summarily dismissed was signed on 30
November 2012. The decision
and letter of dismissal was however only
delivered to the employee on 18 December 2012. When handed the
letter, the employee refused
to leave the third respondent’s
premises and indicated that he intended challenging his dismissal.
f.
Despite receiving the letter of summary
dismissal and commensurate with his stated intention to challenge his
dismissal, the employee
continued to report for duty and tender his
services. The third respondent accepted the employee’s tender
of services and
continued to remunerate the employee in accordance
with his contract of employment which remuneration the employee
accepted.
g.
On 20 December 2012, the employee referred
a dispute concerning his dismissal to the second respondent.
h.
On 21 December 2012, the third respondent
advised the employee that his application for early retirement
submitted on 8 October
2012 had been approved.
i.
Pursuant to this decision, the employee
addressed a letter dated 28 December 2012 to the third respondent in
which letter he tendered
his resignation to take effect in accordance
with his early retirement on 31 January 2013.
j.
The employee continued to render services
to the third respondent and was remunerated until his resignation
took effect on 31 January
2013.
k.
On enquiry from the court, the applicant’s
and the third respondent’s counsel confirmed that the employee
had been paid
an early retirement benefit in accordance with the
acceptance of his application. Mr Ngulwana, who appeared for the
applicant however
suggested that as this information was not
contained in the pleadings, the court should not take it into
account. I disagree. It
is information that is pertinent to the
proper resolution if the dispute before the court and should have
been disclosed in the
pleadings.
[4]
Despite the fact that the employee and the
third respondent had agreed on the early retirement and that the
employee’s employment
had “terminated” in
accordance with this agreement, the employee persisted with the
dispute referred to the second
respondent after having received the
letter of dismissal.
[5]
The dispute was conciliated on 15 February
2013 after the employee had left the third respondent’s employ
in accordance with
his agreement regarding early retirement. A
certificate of outcome was issued in which the dispute was referred
to as S191(5)(a)
– dismissal related to misconduct. In the
referral form, the relief the employee sought was “reinstatement
and maximum
compensation”.
[6]
The employee referred the matter for
arbitration and it was set down by the second respondent to be heard
by the first respondent
on 25 March 2013.
[7]
The record of the arbitration reflects that
the first respondent dealt with two issues namely, firstly whether
the employee had
been dismissed and secondly whether the third
respondent was entitled to legal representation at the arbitration.
[8]
At the conclusion of the arbitration, the
first respondent indicated that he would firstly decide on the issue
of dismissal and
only in the event that he found that the second
respondent had jurisdiction would he then deal with the issue of
legal representation.
[9]
Subsequently, the first respondent issued a
“Jurisdictional Ruling” in which ruling, the first
respondent concluded
that “the alleged unfair dismissal dispute
had no basis in law or fact and stood to be dismissed.” And
ruled that “the
application for the alleged unfair dismissal
[be] dismissed for lack of substance”.
[10]
The facts placed before the first
respondent are set out in paragraph 4 above. The only additional
issues placed before the first
respondent during the arbitration were
the following:
a.
The employee is recorded as having given
the following explanation to the first respondent. The employee,
having explained that
he had received the letter of dismissal (18
December 2012) and the letter approving his early retirement (21
December 2012) and
that he had resigned in writing on 28 December
2012, went on to explain his response thereto:
‘
Shortly
after the letter retirement that was granted and we decided to say
let us discuss the matter with the Department again.
We said what if
you resign? They said no it is fine and it was granted by the
district. How can you give 3 letters to the person
saying that you
are dismissed? After the dismissal you are granted permission to
retire.’
[3]
b.
The record reflects that the employee
intimated to the first respondent that the reason he had agreed his
early retirement with
the third respondent was simply for the
purposes of establishing that the third respondent wanted to get rid
of him at all costs.
This is not borne out by the sequence of events
or the evidence.
[11]
At no stage during the proceedings before
the first respondent did the employee disclose the benefits he had
received as a result
of his agreed early retirement nor did he
provide any evidence to establish his intimation that the negotiated
and agreed early
retirement was concluded for any other purpose other
than a settlement regarding the termination of his employment. These
background
facts were basically the facts that were placed before the
first respondent that led to the jurisdictional ruling the applicant
seeks to review and have it set aside.
[12]
Despite counsel’s suggestion that the
court should not take into account the fact that the employee had
received the early
retirement benefit in accordance with his
application, it is a relevant consideration in determining whether
the second respondent
has jurisdiction to consider the alleged unfair
dismissal.
[13]
The facts and sequence of events are simply
that:
a.
During the course of the disciplinary
enquiry instituted by the third respondent against the employee, both
the employee himself
and the applicant applied for the employee to be
granted early retirement as he had reached the age at which such
applications
could be considered.
b.
The applicant’s application for early
retirement had not been determined by time the disciplinary enquiry
concluded.
c.
The outcome of the disciplinary enquiry was
that the employee was to be dismissed with immediate effect and that
the notice of the
termination of the employment was served on him on
18 December 2012.
d.
The employee refused to accept his
dismissal and to all intents and purposes remained an employee of the
third respondent, tendering
his services and accepting his salary
until his eventual departure at the end of January 2013.
e.
On 21 December 2012, the employee received
notification from the third respondent that his application for early
retirement had
been approved.
f.
On his own admission, the employee, having
received the approval of its application, engage the third respondent
and agreed that
he would take early retirement. Accordance with this
agreement, the employee resigned on 28 December 2012 to take effect
on 31
January 2013.
g.
The employee received his early retirement
benefit and ceased his employment with the third respondent at the
end of January.
h.
Before agreeing the early retirement, the
employee had referred a dispute to the second respondent regarding
his dismissal. Despite
having agreed with the third respondent that
he would take early retirement subsequent to the letter of dismissal,
the applicant
persisted with the employee’s dispute.
[14]
In the circumstances, I am satisfied that
whilst the decision to dismiss the employee was taken by the third
respondent, the subsequent
agreement between the employee and the
third respondent had the effect of settling any dispute that may have
existed regarding
his dismissal. After the agreement reached between
the employee and the third respondent, there could be no dispute
regarding his
dismissal particularly in the absence of anything
indicating the contrary. That being so it is clear that no dismissal
was established
by the applicant and the second respondent does not
have jurisdiction to determine the dispute.
[15]
In its answering affidavit, the third
respondent raised the issue of the late filing of the applicant’s
review application
on the grounds that it had been filed outside the
six week period provided for in the LRA in respect of reviews in
terms of section
145 and accordingly was not filed within a
reasonable time. I am persuaded that taking into account the
circumstances of this matter,
the applicant in this matter is
entitled to condonation for the late filing of the review.
[16]
There is no reason in law or fairness why
costs should not follow the result.
[17]
For the reasons set out above, I make the
following order:
The
applicant’s application is dismissed with costs.
D H Gush
Judge of the
Labour Court of South Africa Johannesburg
APPEARANCES:
FOR THE
APPLICANT: Advs V Ngulwana SC; N Mothapo
Instructed
by Ndomiso Voyi Inc
FOR
THE 3
rd
RESPONDENT: Z Luthuli: A P Shangase and Assoc
[1]
Award; Pleadings page 20.
[2]
Supplementary bundle of documents page 62.
[3]
Record of proceedings indexed page 38 lines 10 – 18.