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[2017] ZALCJHB 4
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Vakalisa v South African Weather Services and Others (J2796/16) [2017] ZALCJHB 4; [2017] 7 BLLR 729 (LC) (6 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
R
eportable
Case
no: J 2796/16
In the
matter between:
BUBELE
VAKALISA
Applicant
and
THE
SOUTH AFRICAN WEATHER
SERVICES
First Respondent
MS
MMAPULA KGARI
N.O.
Second
Respondent
ANNAMART
NIEMAN
Third Respondent
Heard
:
8 December 2016
Delivered
:
6 January 201
7
Summary
:
Application in terms of section 77(3) of
the BCEA for an order for specific performance in respect of the
alleged unlawful termination
of an employment contract;
Ngubeni
v National Youth Development Agency
and
another
(2014) 35 ILJ 1356 (LC) distinguished.
JUDGMENT
RABKIN-NAICKER
J
[1] This
matter came before me on an urgent basis. The applicant seeks the
following relief:
1.
“
Dispensing with the forms and
service provided for in the rules of this court and disposing of this
application as urgent.
2.
Setting aside as unlawful the decisions of
the second respondent of 16 November 2016, to terminate the
employment of the applicant,
with the first respondent.
3.
Reinstating disciplinary enquiry against
the applicant, as convened in terms of the notice of 13 June 2016.
4.
Interdicting the respondents from
interfering with the finalisation of the disciplinary enquiry which
commenced on 22 June 2016.
5.
Costs of suit on a punitive scale.”
[2] I
have decided to treat the matter as urgent and I deal with the merits
of the application below.
[3] The
reason and purpose of the application is set out in paragraphs 9 and
10 of the founding papers. In essence it challenges:
3.1
The legality of the Second Respondent’s decision in her
capacity as Acting
CEO of the First Respondent (SAWS) to terminate an
‘independent’ disciplinary enquiry convened to enquire
into charges
of misconduct against the applicant, and to find the
applicant guilty of the charges against him and summarily dismiss
him;
3.2
The lawfulness of her decision to adjudicate the charges after
terminating the
said disciplinary enquiry;
3.3
The lawfulness of the adjudication of the charges by written
submission after
the respondents elected to call the applicant to the
said enquiry process replete with all the rights that attach thereto,
including
the right to cross examination and to call witnesses in his
own defence. The applicant submits that having elected to afford him
these procedural entitlements it is not open to the respondents to
deprive him of these rights.
[4] The
applicant submits that he seeks an order of specific performance of
his employment contract and the terms incorporated in
it by reference
to the SAWS Disciplinary Policy, which he is required by clause 5 of
his contract of employment to be conversant
with.
[5]
Clause 5.2 of the Disciplinary Policy deals with disciplinary
hearings and provides that as soon as a decision is made to charge
an
employee the CEO
must
:
“
a)
Appoint a Chairperson who must neither be directly or indirectly
involved in the allegations against the employee nor have any
direct
or indirect interest in the case;
b)
At the sole discretion of the CEO the Chairperson may be a person not
in the employ of SAWS and who has the necessary knowledge,
appropriate qualifications and experience if the CEO regards the
misconduct as serious due to the factual or legal complexity of
the
charge;
c)
The Chairperson will also be vested with the delegated power to reach
a verdict of whatever nature at the Chairperson’s
discretion
without having to consult the SAWS Board first about such verdict;
d)
Appoint an employee to act as initiator in the further conduct of the
case.”
[5] The
disciplinary policy sets out procedural rights for an employee in
clause 5.3.2. These include the rights to representation,
including
legal representation on application to the Chairperson, the right to
state his or her case, the right to call witnesses
or have them
called, the right to cross-examine any witnesses or have them called,
the right to cross-examine any witnesses testifying
against the
employee or to have them cross examined, the right to re-examine the
employee’s witnesses and the right to appeal.
[6]
The applicant pleads his case as one for breach of contract being in
terms of sections 77(3) and 77A(e) of the BCEA. These sections
provide in relevant part that:
“
(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract….”; and
Section
77A Powers of the Labour Court
“
(e)
making a determination that it considers reasonable on any matter
concerning a contract of employment
in terms of section 77 (3), which
determination may include an order for specific performance, an award
of damages or an award
of compensation;”
[7] In
submission, Mr Ngcukaitobi for the applicant pointed to common cause
facts on the papers before me including that:
7.1
The first responded opted to convene a formal disciplinary process
before an independent Chairperson to adjudicate
the charges of 13
June 2016. The hearing was to be chaired by Dr Annamart Nieman, an
independent advocate and member of the Johannesburg
Bar.
7.2
On 3 November 2016, the hearing was suspended and to date it has not
reconvened. When the hearing was suspended,
the first respondent had
not closed its case. The applicant therefore had not cross examined
all the respondent’s witnesses
and had not opened his case. On
the day the enquiry was suspended the first respondent, acting
through its attorney of record made
an application to the second
respondent for the termination of the disciplinary enquiry; a finding
on the charges levelled against
the applicant and a finding on the
appropriate sanction. The application was supported by an affidavit
of the employee who had
levelled the charges against the applicant,
General Manager: Operations, a Mr Ndabambi. The application sought
the determination
of the charges and the sanction “with
exclusive reference to written submissions by both parties.”
7.3
On receipt of the first respondent’s application on November 3
2016, the second respondent decided to
suspend the disciplinary
hearing. She went on to call for written submissions from the
applicant before 11 November 2016. At that
stage, no final decision
was made on the termination of the enquiry.
7.4
In response to the notice of 3 November 2016 the applicant’s
attorney addressed a letter to the second
respondent which stated
that since the General Manager: Operations together with the second
respondent had asked the third respondent
to terminate the enquiry,
the charges against him fell away. It was further stated that the
applicant would not make submissions
in respect of the application
supported by an affidavit deposed to by the General Manager, because
the affidavit constituted testimony,
the veracity of which was still
in dispute at the disciplinary hearing. The applicant also sought
confirmation that the charges
against him, in the light of the
request to terminate the enquiry had been abandoned.
7.5
Second respondent replied on the 7
th
November
2016 recording that the purpose of allowing the applicant to respond
to the ‘submissions’ on behalf of SAWS
“is to state
which aspects of SAWS submissions Mr Vakalisa disputes and why and in
what respects he disputes those submissions.
Furthermore Mr Vakalisa
has the opportunity to place any other information before me which he
may consider relevant to the determination
of the matter.” She
also recorded that the charges against the applicant had not been
dropped and that the opportunity to
make submissions was still open
to him. Further that she had not made a final decision on the
question of the disciplinary enquiry.
7.6
In reply to this communication the applicant stated among others that
the hearing was initiated for the parties
to prove their respective
cases before an independent chairperson and that the termination of
the enquiry denied the parties’
this right. He submitted
through his attorney that the only way to fairly test the allegations
against him was at the disciplinary
hearing convened by the
respondents in terms of the disciplinary hearing. On the 10
th
November he asked to report for duty and for confirmation that the
charges had been abandoned in the light of the request that
the
enquiry be terminated.
7.7
The decision to terminate the enquiry, find the applicant guilty of
the charges against him and summarily
dismiss him, was made on the 16
November 2016 by the second respondent.
Evaluation
[8]
Essentially the applicant is seeking the enforcement of a contractual
right falling outside of the LRA. He pleads that the contractual
clause in question contained in his contract of employment and reads
as follows:
“
5.
You are expected to be conversant with SAWS policies and procedures
as
amended from time to time. The policies and procedures are
available in the Human Capital Management Department.”
[9]
The applicant submits, and indeed his case is predicated upon
accepting, that the above clause incorporates by reference, the
SAWS
Disciplinary Policy. Reference was made in submission
to
Ngubeni National Youth Development Agency
and
another
.
[1]
In that case the applicant brought his case precisely on the grounds
as pleaded
in
casu
[2]
and was successful. However, in that matter, the employment contract
contained the following clause:
“
10.1
Misconduct
The
employment of the employee may be terminated at any time, either
summarily or on notice by the agency after a fair disciplinary
procedure establishes that the employee is guilty of any misconduct
or the employee has committed a breach of material obligation
under
this agreement which is incompatible with a continued employment
relationship, or if the employee is found guilty of any
act which
would, at common law or in terms of any applicable statute, entitle
the agency to terminate the employee's employment.”
[10]
In
Ngubeni
,
my brother Van Niekerk J was guided in his interpretation of the
clause in question by the principles as set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
in which Wallis JA said at paragraph 18:
'The
present state of the law can be expressed as follows: interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads
to insensible or
unbusinesslike results or undermines the apparent purpose of the
document…. The "inevitable point
of departure is the
language of the provision itself" read in context and having
regard to the purpose of the provision and
the background to the
preparation and production of the document….'
And
further at para 26:
'In
between these two extremes, in most cases the court is faced with two
or more possible meanings that are to a greater or lesser
degree
available on the language used. Here it is usually said that the
language is ambiguous although the only ambiguity lies
in selecting
the proper meaning (on which views may legitimately differ). In
resolving the problem the apparent purpose of the
provision and the
context in which it occurs will be important guides to the correct
interpretation. An interpretation will not
be given that leads to
impractical, unbusinesslike or oppressive consequences or that will
stultify the broader operation of the
legislation or contract under
consideration.'
[11]
In my view, the interpretation of the clause
in
casu
advocated
by the applicant, i.e. that it incorporates by reference the
disciplinary policy, must also mean that it incorporates
by reference
all
SAWS policies and procedures as amended from time to time - given
that no one policy is specifically mentioned. Can this be the
sensible meaning to attribute to the clause given that ‘
conversant
with’
means ‘having knowledge or experience with’
[4]
?
I do not believe that it is. The approach to statutory interpretation
now favoured by our courts takes inspiration from English
law
emphasising that: 'Loyalty to the text of a commercial contract,
instrument, or document read in its contextual setting is
the
paramount principle of interpretation. But in the process of
interpreting the meaning of the language of a commercial document
the
court ought generally to favour a commercially sensible construction.
The reason for this approach is that a commercial construction
is
likely to give effect to the intention of the parties. Words ought
therefore to be interpreted in the way in which a reasonable
commercial person would construe them. And the reasonable commercial
person can safely be assumed to be unimpressed with technical
interpretations and undue emphasis on niceties of language.'
[5]
[12] The
sensible construction of the clause in issue is that the applicant
was expected to be familiar with the policies and procedures
of his
employer and keep abreast of any amendments to them. A reading of it
to the effect that the parties to the agreement were
bound by
reciprocal obligations arising from each and every policy issued by
the employer would stultify the operation of the employment
contract.
This would more especially be the case in situations in which either
party wished to rely on a breach of its terms, or
assert a right in
its terms.
[13]
Further, the use of the Disciplinary Policy did not amount to the
employer ‘electing’ to be bound by it as submitted
on
behalf of the applicant. The application of the Disciplinary Policy
by the employer is mandatory in its own terms
[6]
.
It does not appear to me that any election took place when it was
used to initiate the charges. The election to stop observing
those
terms may well give rise to claims under the rubric of the right to
fair labour practices. But I must deal with the pleadings
as they
are.
[13] For
the above reasons, I find that Clause 5 of the contract of employment
did not incorporate the disciplinary policy by reference
and a claim
for specific performance in the policy’s terms is therefore not
sustainable. The eloquent arguments by Mr Ngcukaitobi
in
Ngubeni
were persuasive given the clause in issue in that matter, but are not
in this case. The distinction between the clause contained
in the
contract of employment in that matter, and clause 5 of the
applicant’s contract of employment is glaring.
[14] In
all the circumstances therefore, this application falls to be
dismissed. I do not intend to order that costs follow the
result. I
do not regard the application as anything but a
bona fide
attempt by the applicant, an individual employee, to exercise his
rights in this court. I make the following order:
Order
1.
The application is dismissed with no order as to costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant : Advocate T
Ngcukaitobi with Advocate R Tulk
Instructed
by
: MMM INC
For the
First and Second Respondents: Fasken Martineau
[1]
(2014)
35 ILJ 1356 (LC)
[2]
See
para 3 of the judgment
[3]
2012
(4) SA 593
(SCA)
[4]
Merriam-Webster.com
dictionary
[5]
Per
Lord Clarke SCJ in
Rainy
Sky SA v Kookmin Ba
nk
[2011] UKSC 50
([2012] Lloyd's Rep 34 (SC)) para 21. Referred to in
N
ovartis
SA
(PTY) LTD v M
aphil
T
rading
(PTY)
LTD
2016
(1) SA 518
(SCA) at para 29
[6]
See
clause 2 of the Disciplinary Policy and especially that
“non-compliance with the provisions of the policy may
result
in the necessary legal and/or disciplinary action or otherwise being
instituted against the party in question’