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[2016] ZALCPE 21
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Landu v Public Health and Social Development Sectoral Bargaining Council and Others (PR105/14) [2016] ZALCPE 21 (4 November 2016)
Republic
Of South Africa
The
Labour Court Of South Africa,
Held
At Port Elizabeth
Not Reportable
Case
No: Pr 105/14
In The
Matter Between:
Mpumulelo Mcglory Landu
Applicant
And
Public Health And Social
Development Sectoral
Bargaining Council
First Respondent
Phumulele Dhlodhlo N.O
Second Respondent
Mec: Department Of Health,
Eastern Cape
Third Respondent
Superintendent General:
Department Of Health,
Eastern Cape
Fourth Respondent
Heard
:
03 November 2016
Delivered
:
04 November 2016
Summary:
(Review – Jurisdictional Ruling –
Objective Test – No Arbitrable Unfair Dismissal Claim)
Judgment
Lagrange
J
Introduction
[1]
On 28 May 2007, The Applicant And The
Eastern Cape Department Of Health Settled An Alleged Unfair Dismissal
Dispute On The Basis
That The Applicant Was Reinstated
Retrospectively To 1 February 2007 And Would Report For Work On 1
June 2007. The Applicant’s
Service Had Been Terminated Because
His Employer Had Discovered That He Had Previously Been Employed By
Another Government Department
And Received A Severance Package.
[2]
The Applicant’s Dismissal In 2007 Had
Been Based On Chapter 1 Part Vii B. 3.1(A) Of The Public Service
Regulations Of 2001
Which Prohibited The Executive Authority Of The
Department From Reappointing A Former Employee Who Had Previously
Left The Public
Service Earlier On The Condition That The Employee
Would Not Accept Or Seek Reappointment. The Regulations Were Relaxed
To Give
Executive Authorities The Discretion To Re-Employ Such Former
Public Service Employees Provided Certain Requirements Were Met. One
Of Those Conditions Was That Reappointment Could Only Be Made For A
Maximum Fixed Term Period Of Three Years, Which Could Be Renewed
Once.
[3]
On 21 April 2008, The Settlement Agreement
In Terms Of Which The Applicant Had Been Reinstated Was Made Order Of
Court. Despite
The Settlement Agreement, The Respondent Department
Was Not Content To Let Matters Lie And Instituted Disciplinary
Proceedings
Against The Applicant In August 2008 Accusing Him Of
Misconduct For Prejudicing The Administration Of The Department And
Misleading
It By Not Declaring The Severance Package Previously Paid
To Him Under The Terms Of The Public Service Act. By 20 May 2010 The
Applicant Was Told By The Department That He Was Dismissed For
Misconduct. He Appealed Against Decision And Received The Outcome
Of
The Appeal Some Three Years Later, On 28 May 2013.
[4]
The Appeal Outcome Was Curious Because It
Did Not Confirm The Finding That He Was Guilty Of Misconduct. Rather
It Stated That The
Mec Had Decided That His Service With The
Department Over The Previous Six Years “...Be Regularised In
Line With Amendments
To The Voluntary Severance Package Contained In
The Public Service Regulations 2001, Reg Vii B.3.2.” In
Accordance With This
Regulation, The Mec Concluded That The Applicant
Had Been Employed For Two Consecutive Three-Year Contracts, Which Was
The Maximum
Period Of Employment Permissible Under The Regulations.
Consequently, The Mec Reasoned, The Applicant’s Last Three-Year
Appointment
Had Expired On 13 January 2013. The Applicant Was Further
Advised That The Period From The Date Of The Letter (7 March 2013)
Until
30 April 2013 Would Serve As His Notice Period To Avoid An
Abrupt Ending To His Services Which The Mec Considered Would Be
“inhumane
And Dishonourable.”
[5]
The Applicant Referred An Unfair Dismissal
Claim To The Bargaining Council (the First Respondent) On 17 July
2013. However, When
The Matter Was Set Down For Arbitration, The
Arbitrator Upheld A Jurisdictional Objection By The Department. The
Basis For The
Jurisdictional Ruling Was That The Dispute Emanated
From The 2007 Settlement Agreement And The Labour Court Alone Had
Jurisdiction
To Deal With That Since The Settlement Agreement Had
Been Made An Order Of Court.
[6]
Although
The Determination Of Jurisdiction Is An Objective Matter
[1]
,
The Arbitrator’s Reasoning Is Worth Mentioning. The Arbitrator
Considered That The Nature Of The Applicants Unfair Dismissal
Claim
Concerned Whether He Had Been Unfairly Dismissed In 2013 Because It
Was Contrary To The Settlement Agreement Was Made An
Order Of Court.
To Determine The Dispute That Would Require Him To Interpret The
Settlement Agreement. However, His Powers To Interpret
Agreements
Were Confined To The Interpretation Of Collective Agreements Only
Under Section 24 Of The Lra.
Condonation
Application
[7]
The
Review Application Is Approximately Three Months Late. The
Explanation For The Delay Is That The Applicant Initially Sought
To
Secure Personal Service Of The Court Order With A View To Pursuing
Contempt Proceedings, Correspondence With The Respondents
To
Determine The Appropriate Forum For The Dispute And The Need To Take
Counsel’s Advice. The Applicant Claims He Was Faced
With A
Quandary Because The Department To Be Both Claiming That The
Settlement Agreement Had Been Complied With But Maintained
That The
Dispute Concerned The Interpretation Of That Agreement. The
Respondents Are Not Opposing The Application And Accordingly
Do Not
Appear To Complain Of A
ny Prejudice Occasioned By The Delay.
In The Circumstances, It Seems A Balance Of Convenience Favours The
Court Dealing With The
Merits Of The Application.
Grounds
Of Review
[8] The
Applicant Contends That The Ruling Was Wrong Because The Dismissal
Dispute Did Not Emanate From The Settlement Agreement
And The Court
Order. The Applicant Argues That The Arbitrator Should Have Realised
That The Termination Of His Employment In July
2013 Was The Dismissal
He Was Required To Determine The Fairness Of.
[9] In
His Heads Of Argument Submitted To The Arbitrator, The Applicant
Agreed That He Has The Option Of Seeking To Enforce The
Court Order
By Way Of Contempt Proceedings. However He Contended That The
Arbitrator Still Had Jurisdiction To Determine Whether
His Dismissal
Was Both Unfair And Unlawful And The Settlement Agreement Was Merely
One Of The Matters Incidental To That Issue.
Moreover The Settlement
Agreement Did Not Require Any Interpretation. Another Ground He
Intended To Rely On In His Unfair Dismissal
Dispute Was To Challenge
The Entitlement Of The Department To Rectify Its Previous Actions By
Unilaterally Imposing The Two Fixed
Term Contracts. Nowhere In His
Submissions Does The Applicant Indicate Whether He Contends His
Dismissal Was An Unfair Dismissal
On Grounds Of Misconduct,
Incapacity Or Operational Reasons Or For An Unknown Reason.
Mr
Grobler
, Who Appeared For The Applicant, Argued That It Was
Not Necessary For The Applicant To Address In The Heads Submitted To
The Arbitrator Which Category Of Dismissal He Was Relying On Because
The Submissions Were Made To Address The Specific Jurisdictional
Point Raised By The Arbitrator Relating To The Interpretation Of The
Settlement Agreement. The Nature Of The Dismissal Could Be
Elaborated
On In Due Course When The Matter Was Referred Back To Arbitration To
Determine The Fairness Of The Dismissal.
[10] In
His Referral Form, The Applicant Also Acknowledged That Even Though
He Had Been Dismissed After A Disciplinary Hearing,
He Stated That:
“I Appealed To The Mec Who Confirmed My Dismissal On Different
Grounds”. In Identifying The Reason
For His Dismissal On The
Referral Form He Ticked ‘Misconduct’ And ‘Other’.
In Elaborating On ‘Other’
He Made Reference To Regulation
Vii B.3.2.
[11]
Everything About The Applicant’s Claim Tends To Point Towards A
Claim That Is Based On The Unlawfulness Of The Employer’s
Action In Terminating His Services On Account Of The Alleged Effect
Of The Provisions Of The Public Service Regulations, Whether
Or Not
The Settlement Agreement Which Was Made An Order Of Court Is The
Decisive Factor. I Am Unaware Of Any Authority That A Bargaining
Council Or The Ccma Can Determine The Substantive Or Procedural
Fairness Of A Dismissal On Grounds Other Than Those Listed In Section
191 (5) Or 191
(12) Of The Lra And It Is Plain That The Applicant
Realized That He Was Not Dismissed For Misconduct On 28 May 2013. It
Is Also
Clear He Does Not Rely On Dismissal For Incapacity Or
Operational Reasons.
[12]
In The Circumstances I Am Satisfied That The Dismissal Dispute
The Applicant Referred To The Bargaining Council Is Not One That
Could Be Adjudicated By Way Of Arbitration Under The Ordinary Unfair
Dismissal Jurisdiction Of The Abovementioned Provisions Of
The Lra.
There Would Be Little Purpose Therefore In Referring The Dispute Back
To Arbitration On A Completely Speculative Basis
That An Unfair
Dismissal Dispute For Misconduct, Operational Reasons Or Incapacity
Might Yet Be Discovered, When It Has Not Been
Clearly Articulated To
Date.
Order
[13]
The Review Application Is Dismissed.
[14]
No Order Is Made As To Costs.
_______________________
Lagrange
J
Judge
Of The Labour Court Of South Africa
APPEARANCES
APPLICANT:
W
Grobler instructed by Chris Unwin Attorneys
THIRD
& FOURTH RESPONDENTS:
P
Kroon, SC assisted by L Gagiano instructed by the State Attorney
[1]
See At Sa
Rugby Players Association & Others V Sa Rugby (Pty) Ltd &
Others (2008) 29 Ilj 2218 (LAC) On The Proper Test
Of Review Of
Jurisdictional Rulings At 2230:
“
[41]
The Question Before The Court A Quo Was Whether On The Facts Of The
Case A Dismissal Had Taken Place.
The Question Was Not Whether The
Finding Of The Commissioner That There Had Been A Dismissal Of The
Three Players Was Justifiable,
Rational Or Reasonable. The Issue Was
Simply Whether Objectively Speaking, The Facts Which Would Give The
Ccma Jurisdiction To
Entertain The Dispute Existed. If Such Facts
Did Not Exist The Ccma Had No Jurisdiction Irrespective Of Its
Finding To The Contrary.”