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[2017] ZALCJHB 53
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Mashaba v South African Football Association (SAFA) (J122/17) [2017] ZALCJHB 53; [2017] 6 BLLR 621 (LC); (2017) 38 ILJ 1668 (LC) (21 February 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase
no: J 122/17
In the
matter between:
EPHRAIM MASHABA
Applicant
And
SOUTH AFRICAN FOOTBALL
ASSOCIATION (“SAFA”)
Respondent
Heard
:
14 February 2017
Delivered:
21 February 2017
Summary:
(Urgent – temporary relief pending outcome
of CCMA proceedings – no prima facie right –existence of
alternative
remedies)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter is Mr E.
Mashaba. Until his dismissal on 21 December 2016 by the South Africa
Football Association
(‘SAFA’), he was the head coach for
the Senior Men’s National South African Football team (“Bafana
Bafana”).
He has referred a case of unfair dismissal to the
CCMA, which he believes he has a good prospect of winning. The
arbitration proceedings
in the CCMA are currently scheduled to take
place over three days starting on 7 to 9 March, though given that his
disciplinary
hearing took five days it is by no means clear that the
CCMA hearing will be finished in three.
[2]
Mr Mashaba’s concern is that even if
he succeeds in his unfair dismissal claim and is entitled to
reinstatement as part of
his relief, he might already have been
replaced by SAFA. He believes it is unlikely in those circumstances
that a Commissioner
will order his reinstatement. Mr Mashaba has
launched these proceedings in the Labour Court to try and prevent the
appointment
of a new head coach from damaging his prospects of
reinstatement. The specific relief he seeks in this Court as a matter
of urgency
is to restrain SAFA from appointing a new head coach
pending the outcome of his CCMA proceedings.
Nature
of the relief
[3]
Mr
Mashaba argues that, since he is merely asking for this relief as a
temporary measure pending the outcome of the CCMA proceedings
his
application is an application for interim relief only. In
applications for interim relief the test which applied by the courts
is that an applicant must demonstrate: a
prima
facie
right;
a well-grounded apprehension of irreparable harm if the interim
relief is not granted, even if the ultimate relief is granted;
the
balance of convenience in favour of granting the relief must lie with
the applicant, and no satisfactory alternative remedy
is available to
the applicant.
[1]
[4]
Strictly speaking, although Mr Mashaba
seeks temporary relief to prevent SADA appointing a new coach in the
meantime, he will not
be returning to court to make any such
temporary order a final one, but he hopes that if he is successful in
the CCMA the need
for a final order in this court will become
irrelevant if he is reinstated in the position of head coach. It may
be a matter of
debate whether the relief he seeks in this Court is
really interim relief in the true sense because the relief he seeks
is to stop
SAFA contracting with a third party, whereas the relief he
will obtain in the CCMA, if wholly successful, is to guarantee his
reinstatement
in the job, irrespective of any contracts SAFA might
have entered into with a third party in the meantime. The requirement
for
obtaining final relief is more onerous because an applicant must
establish the existence of a clear right. Nevertheless, even though
his application might well be an application for temporary but final
relief for which Mr Mashaba would have to establish a clear
right, I
will assume in his favour that he only needs to establish a prima
facie right.
Urgency
[5]
Mr Mashaba urges the court to treat this as
a matter of urgency because he believes the appointment of a new head
coach may be imminent.
In this regard, the CEO of SAFA, Mr Mumble,
has stated publicly that SAFA would be urgently consulting with its
internal structures
to find a replacement as soon as possible. As
yet, SAFA has not decided on whom to appoint but concedes that it is
in the process
of “inviting applicants for the position and
going through the process of identifying specific individuals who may
qualify
for the position with the intention of approaching them”,
but stated that this process will only commence when the SAFA’s
President returns from abroad. Nonetheless, there is no assurance
provided by SAFA that a replacement might not be found and appointed
before the conclusion of the arbitration proceedings. Consequently,
in so far as Mr Mashaba can demonstrate that he is entitled
to
prevent such an appointment being made pending the outcome of his
proceedings, I accept that it should be dealt with as a matter
of
urgency.
The
prospect of irreparable harm and the existence of an alternative
remedy
[6]
Under the Labour Relations Act, 66 of 1995
(‘the LRA’) an employee whose dismissal is found to be
substantively unfair
is entitled to expect reinstatement as a remedy
if the employee does not simply want compensation, provided two other
considerations
are not applicable. Section 193(2) of the LRA states:
“
The
Labour Court or the arbitrator
must
require the employer to reinstate or re-employ the employee
unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the
circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable
;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ
the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
[7]
It is clear from the preamble of the
section that the Commissioner or the Court is obliged to order the
reinstatement or re-employment
of an employee whose dismissal is
substantively unfair, unless one of the conditions in the subsections
applies. In Mr Mashaba’s
case, he believes he will succeed in
establishing that his dismissal was substantively unfair and
accordingly he will not be denied
reinstatement on account of section
193 (2) (d) which has no practical effect unless a dismissal is found
to be only procedurally
unfair. Clearly, subsection 193(2)(a) will
not apply unless Mr Mashaba changes his mind and abandons his quest
for reinstatement.
Consequently, if he is successful in convincing
the arbitrator that his dismissal by SAFA was substantively unfair
only subsections
193 (2) (a) and (b) could stand in the way of his
reinstatement or reappointment. Whether subsection 193 and (2)(a)
would present
a problem for his reinstatement will not depend on the
appointment of another coach, because that provision is only
concerned with
the extent to which the relationship between the
dismissed employee and the employer had deteriorated to such an
extent around
the time the dismissal took place that the prospect of
a relationship of mutual respect and trust being restored is
unlikely.
[8]
The remaining provision which could present
an obstacle to his reinstatement, assuming he is successful in
establishing that his
dismissal was substantively unfair, is
subsection 193(2)(c). Mr Mashaba fears that if a new national coach
is appointed, a Commissioner
contemplating reinstating him might feel
that the existence of a newly appointed coach would make it “not
reasonably practicable”
for the employer to reengage him and
might deprive him of the reinstatement he believes he deserves.
[9]
However,
merely because Mr Mashaba’s reinstatement would present a
problem for SAFA if it appoints another person to the position
in the
meantime, that would not be sufficient justification for SAFA to say
that the employment of a replacement would make it
“reasonably
impracticable” to reinstate him. The phrase “reasonably
impracticable” does not simply mean
inconvenient or
impractical. The LAC has made this clear in its decision in
Xstrata
South Africa (Pty) Ltd (Lydenburg Alloy Works) v Num Obo Masha and
Others
[2]
,
where it said amongst other things:
“
The
object of section 193(2)(c) of the LRA is to exceptionally permit the
employer relief when it is not practically feasible to
reinstate; for
instance, where the employee’s job no longer exists, or the
employer is facing liquidation, relocation or
the like. The term “not
reasonably practicable” in section 193(2)(c) does not equate
with “practical”,
as the arbitrator assumed. It refers to
the concept of feasibility. Something is not feasible if it is beyond
possibility. The
employer must show that the possibilities of its
situation make reinstatement inappropriate. Reinstatement must be
shown not to
be reasonably possible in the sense that it may be
potentially futile.”
[10]
An
employer may not thwart a dismissed employee’s bid for
reinstatement by replacing him and then arguing that it cannot
reinstate the dismissed employee because there is someone occupying
his former position.
[3]
That is an eventuality the employer must take into account when it
replaces a dismissed employee who is challenging their dismissal.
In
other words, if the employer does not take suitable steps in its
contract with the replacement, it ought to realise it runs
the risk
that it will be faced with the possibility of terminating that
relationship or of trying to renegotiate the replacement’s
contract if the former incumbent is reinstated.
[11]
Thus, on a proper interpretation of section
193(2)(c), if SAFA does appoint a replacement head coach before
learning of the outcome
of Mr Mashaba’s case, that appointment
cannot protect it against an order of reinstatement. Consequently, Mr
Mashaba will
not be deprived of his right to reinstatement, if the
only consideration which might stand in its way is the employment of
a replacement
coach before his CCMA case was decided. That is not a
factor which should influence any arbitrator deciding if there is
anything
which prevents his reinstatement, if he decides that Mr
Mashaba’s dismissal was substantively unfair.
[12]
In light of the above, if SAFA takes the
risk of employing a replacement coach there is no reason to believe
that this factor will
cause Mr Mashaba irreparable harm in his bid
for reinstatement. It is the arbitrator exercising his or her powers
under section
193(2)(c) who is given the power of reinstatement under
the LRA, which is the right which Mr Mashaba seeks to preserve by
bringing
this application. The arbitration proceedings provide not
merely a suitable alternative remedy but the primary remedy for any
dismissed
employee seeking reinstatement who has been dismissed for
misconduct. There was no need to bring this application in order to
preserve
that remedy for the reasons already discussed. Thus the
potential harm Mr Mashaba may suffer as a result of the appointment
of
a replacement before the CCMA decides his case is not irreparable
and the remedy of reinstatement remains available as an alternative
remedy notwithstanding such an appointment.
Existence
of a prima facie right to prevent SAFA employing a replacement
[13]
The
right which the LRA provides by virtue of section 193(2) is the right
of an employee to be reinstated if their dismissal is
found to be
substantively unfair and provided none of the subsections are
applicable. As discussed above, an order of reinstatement
pays no
heed to other contractual arrangements that might have come into
existence between the employer and a replacement. That
is of no
concern to the arbitrator or the court and the employer is left to
its own devices to sort out the mess it finds itself
in having
employed someone and then being ordered to re-engage someone in the
same position. However, the fact that the arbitrator
or the court may
impose a reinstatement on an employer does not necessarily mean that
the court can dictate how the employer conducts
itself in concluding
employment contracts with other third parties, unless such
appointments may be challenged on other grounds
such as being
unlawful in terms of a statute.
[4]
The Labour Court, certainly has the power to enforce the terms of
employment contracts,
[5]
but I know of no provision in any of the statutes which empowers the
court to
prevent
the conclusion of private employment contracts. Likewise, the fact
that Mr Mashaba may acquire a right to reinstatement once he
is able
to establish that his dismissal was substantively unfair, does not
translate into a right to keep his position vacant merely
on the
assumption that he might be able to do so.
[14]
This brings to the fore a further
complicating factor which is implicit in this application. Since his
right to reinstatement will
only arise as a possibility if Mr Mashaba
succeeds in establishing the substantive unfairness of his dismissal,
and assuming that
the right of reinstatement in some way could be a
platform for a right to interfere beforehand in the employment of
replacement
staff, the court would necessarily have to take a
provisional view that his dismissal will most probably be found to be
substantively
unfair. This is because his prospect of reinstatement
will only arise if that is established. This would require the court
to effectively
second-guess the outcome of the arbitration
proceedings, which the LRA has designated as the appropriate
proceedings in which the
substantive fairness of a dismissal for
misconduct and any award of consequential relief must be determined.
[15]
Consequently, the right Mr Mashaba argues
for, apart from the difficulties highlighted above, is also
fundamentally premised on
his expected success in the CCMA
proceedings, which is not for the court to evaluate in the context of
urgent motion proceedings.
[16]
In all the circumstances, I am not
satisfied that Mr Mashaba has demonstrated the existence of a right
to prevent the employment
of a replacement coach pending the outcome
of his arbitration proceedings, even if he would be entitled to
reinstatement at the
conclusion of those proceedings. In these
circumstances, it is also not necessary for me to consider the
balance of convenience.
[17]
In passing, I should mention that all the
considerations about the importance Mr Mashaba regaining his position
as head coach and
the importance of him fulfilling his dream of
taking Bafana Bafana to the FIFA World Cup in 2018, which
Mr
Bollo
strongly urged the court to
consider in deciding the application, are matters best left for the
arbitrator to deliberate on and
have no direct bearing on the merits
of this application.
Order
[18]
The application is dealt with as one of
urgency and the rules of the Labour Court relating to service and
time periods are dispensed
with.
[19]
The application is dismissed.
[20]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant :
C Bollo of Biccari Bollo
Mariano Inc
For
the Respondent:
A Myburgh SC instructed by
JMT Attorneys
[1]
Setlogelo v
Setlogelo
1914 AD 221
at 227
[2]
(JA 4/15)
[2016] ZALAC 25
; (2016) 37 ILJ 2313 (LAC) (14 June 2016) at para
[11].
[3]
See
Volkswagen SA
(Pty) Ltd v Brand NO & Others
[2001] 5 BLLR 558
(LC) at para [102] and also
Draken
Industries CC v Maande and Others
(JA 69/2013)
[2014] ZALAC 42
(19 August 2014) at para 23..
[4]
See e.g
Khumalo
& another v MEC for Education, KwaZulu-Natal
(2013)
34
ILJ
296 (LAC)
[5]
Rand
Water v Stoop & another
(2013) 34
ILJ
576
(LAC) 585-8, paras [19] to [35]