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[2017] ZALCJHB 106
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Maile v Department of Correctional Services (JS33/13) [2017] ZALCJHB 106 (24 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 33/13
In
the matter between:
KATISHI JOB MAILE
Applicant
and
DEPARTMENT OF
CORRECTIONAL
SERVICES
Respondent
Heard:
22 March 2017
Delivered:
24 March 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction and
background:
[1]
The
applicant, a Correctional Services Officer, was dismissed on account
of allegations of misconduct pertaining to theft. He had
lodged an
internal appeal, and prior to the appeal process commencing, he was
sent to jail in July 2004 to serve a six-year imprisonment
sentence.
He had served about two years of his jail sentence and was released
on parole.
[2]
About
more than six years after his release, he then approached this Court
in terms of the provisions of section 77(3) of the Basic
Conditions
of Employment Act
[1]
(the BCEA),
to seek payment of his salary with effect from July 2004 until 17
January 2013 when he lodged this claim. The claim
is opposed by the
respondent.
[3]
The
following background material is common cause;
3.1
The
applicant earned a monthly salary equivalent to R10 000.00;
3.2
On
26 November 2003, the applicant was arrested for theft of scrap metal
and was released on bail the following day on condition
that he did
not enter the premises of the respondent. The suspension followed
upon allegations that the applicant had
inter
alia
,
committed theft by stealing 42134 kg of stainless steel to the value
of R176 964.00 from the respondent. Two other charges pertained
to
similar transgressions allegedly committed between 2001 and 2003 at
the respondent’s Zonderwater premises;
3.3
On
23 December 2003, the applicant was issued with a letter of
suspension (with pay). A disciplinary enquiry was held in the absence
of the applicant on 18 March 2004, and on 02 July 2004, he was
advised of the decision to terminate his services;
3.4
The
applicant lodged an internal appeal on 5 July 2004. On 9 July 2004,
the applicant following his criminal conviction, was handed
a six
year jail sentence. He was released on parole on 13 September 2006
after serving two years and two months of his original
sentence.
3.5
The
statement of claim was filed on 17 January 2013, some six years after
the applicant was released from jail
[4]
No
oral evidence was led in these trial proceedings in view of the
common cause facts and the narrow issues for determination which
are;
a)
Whether
the applicant was still an employee of the respondent by virtue of
his appeal against the dismissal; and
b)
Whether
the applicant was entitled to remuneration as a result of having
appealed against his dismissal.
The
Arguments and Evaluation:
[5]
Central
to the determination of the issues for consideration are the
provisions of ‘Resolution of the Departmental Bargaining
Council: Department of Correctional Services’, which entails
the Disciplinary Code, the Disciplinary Procedure, the Disciplinary
Procedure Manual, and the Suspension Policy. (Resolution 1 of 2001).
[6]
Appeals
are dealt with in terms of clause 7.16 of the Disciplinary Code and
Procedure. The applicant relied upon clause 7.16.2.1
for his
contentions that he was still an employee. This clause provides that;
‘
If an
employee lodges an appeal following his dismissal, he remains in
service until the outcome of the appeal hearing’
[7]
The
above clause should be read together with clause 7.16.2 of the
Disciplinary Procedure manual, which provide that;
“
7.16.2.2
The appellant must
file a written intention to appeal within five (5)
working days after
the disciplinary hearing;
7.16.2.3
The employer must provide verbatim (word for word) minutes of the
disciplinary hearing to the appellant/representative within ten (10)
working days from the receipt of intention to appeal
7.16.2.4
After having received the verbatim minutes within five (5) working
days, the employee must file his formal application for appeal at the
Head Personnel in the office of the Area Manager on the prescribed
form (Annexure E), containing the grounds of appeal. Late lodging of
an appeal could be condoned if good reasons are given;
7.16.2.5
Within five (5) working days from having received the application
for
appeal, the employer shall furnish the appellant with a notice
informing him of the appeal stating the date, time and venue
of the
appeal hearing (Annexure F)
”
[8]
An
important consideration with the appeal procedures is that a formal
appeal hearing is then convened, where the appellant or his/her
representative is required to
inter
alia
,
confirm the grounds of appeal, and are afforded an opportunity to
motivate the grounds of appeal. In dismissal cases, the chairperson
of the appeal is required to re-convene the appeal to present his or
her findings.
[9]
Central
to the applicant’s case was that the appeal was lodged on time,
and that the respondent had not made any effort to
comply with the
appeal procedures. The respondent’s contention on the other
hand was that the time-line of events was such
that it could not have
complied. In this regard, it was argued that the dismissal took place
on the Friday of 2 July 2004. The
appeal was then lodged on the
Monday of 5 July 2004, and on the Friday of 9 July 2004, the
applicant started his jail sentence.
[10]
In
view of the time line of events, it is apparent that even if the
respondent wished to comply with the provisions of clause 7.16.2.3,
as at the date that the applicant started his jail sentence, the 10
working days within which it was required to provide a verbatim
record had not expired. The parties were in agreement that
intervening circumstances overtook the appeal proceedings, and
as a
result, that process could not have taken place.
[11]
The
contention however made on behalf of the applicant that since he
served time in the respondent’s facilities, nothing prevented
it from convening those appeal proceedings where the applicant was
incarcerated. This contention in my view is misplaced. The fact
that
the applicant was a correctional service official and happened to
have served time in the respondent’s correctional
facilities
does not in my view give him special privileges. There was no
requirement that the respondent had to convene the appeal
proceedings
at its correctional facilities where the applicant was incarcerated.
This is so in that any employment relationship
between an employer
and an employee invariably becomes suspended upon that employee’s
incarceration.
[12]
The
applicant’s reliance on clause 7.16.2.1 for the contention that
he was still an employee and is therefore entitled to
his
remuneration is equally misplaced. In
Trident
Steel (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[2]
,
it was correctly held that that imprisonment suspends the obligation
of an employer to pay the employee a salary and for the period
of
imprisonment, an employee is not entitled to remuneration. This is so
in that an employee, by virtue of his or her imprisonment
is unable
to perform in terms of his contractual obligations. Equally, an
employer cannot in law or logic be expected to pay an
employee who is
serving time in jail, especially where the theft, as evinced from the
conviction in this case, was against the
employer.
[13]
The
question whether the applicant was still an employee on the basis
that he had lodged an appeal prior to his incarceration further
needs
to be answered within the context of what constitutes an ‘employee’
as defined in the BCEA
[3]
; the
Labour Relations Act
[4]
, or the
Employment Equity Act
[5]
. Based
on the definitions therein, the applicant by virtue of his
imprisonment could not for all intents and purposes, have been
classified as an employee. This is so in that he could neither render
his services nor receive any form of remuneration from the
employer.
[14]
It
therefore follows from the above that an employee for the purposes of
clause
7.16.2.1
cannot be defined beyond the ability of the respondent to complete
the appeal process as contended on behalf of the applicant.
Once
there are intervening circumstances after a dismissal, that prevent
an appeal process being completed for the purposes of
clause
7.16.2.1, the employee remains dismissed for all intents and
purposes.
[15]
A
further hurdle faced by the applicant in this case is that upon his
release in 2006, his immediate action was to approach the
respondent
with a view of securing his pension benefits. Not once, until the
lodging of this claim, did he confront the respondent
to claim that
he was an employee, and that it should convene an appeal hearing,
albeit
at that belated stage. It was only some six years after his release
that it occurred to him that he might be owed some money on
an
incorrect or contrived interpretation of clause 7.16.2.1. This claim
is ultimately misconceived and appears to be an afterthought.
The
applicant could not have been an employee as defined by virtue of his
appeal against the dismissal prior to his imprisonment,
and he is
therefore not entitled to any remuneration as a result of having
appealed against his dismissal prior to his imprisonment.
The
applicant’s claim has no merit and thus ought to be dismissed.
[16]
I
have further had regard to the issue of costs which neither of the
parties had pursued, and I am satisfied that considerations
of law
and fairness militates against any cost order being granted.
[17]
In
the premises, the following order is made:
Order:
1.
The
Applicant’s claim as brought in terms of the provisions of
section 77 (3) of the Basic Conditions of employment is dismissed.
2.
There
is no order as to costs.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate RG Masipa
Instructed
by:
HD Rammutla Attorneys
For
the Respondent:
Adv. MB Matlejoane
Instructed
by:
The State Attorney, Pretoria
[1]
Act 75 of 1997.
[2]
(2005) 26 ILJ 1519
(LC). See also
Laminate
Profile CC v Mampai and Others
(2007) 28 ILJ 1092 LC
[3]
Act No. 75 of
1997
Section
1 provides that;
“
employee”
means
-
(a)
any
person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled
to receive,
any remuneration; and
(b)
any
other person who in any manner assists in carrying on or conducting
the business of an employer.’
[4]
Act No 66 of
1995. The same definition is to be found in section 213
[5]
Act
No. 55 of 1998. Section 1