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[2017] ZALCJHB 234
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Nowalaza and Others v Office of the Chief Justice and Another (J1177/2017) [2017] ZALCJHB 234 (15 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Of
interest to other judges
Case
no: J 1177/2017
In
the matter between:
LUVUYO
NOWALAZA
First
Applicant
INDIVIDUALS
LISTED IN ANNEXURE "A"
Second
to Eighteenth Applicants
TO
THE NOTICE OF MOTION
and
OFFICE
OF THE CHIEF
JUSTICE
First
Respondent
MEMME
SEJOSENGWE
N.O.
Second
respondent
Heard:
9 June 2017
Delivered:
15 June 2017
Summary:
Urgent
application - applicants on fixed term contracts rely upon a
reasonable expectation of permanent employment in terms of
section
186(1)
(b) (ii) of the
Labour Relations Act, 66 of 1995
.
The
Public Service Act, 1994 requires a process of recruitment,
advertising and selection before temporary status can be converted
into indefinite period employment –whether expectation can be
reasonable if subject to a prescribed statutory process.
Section
186 trumps the Public Service Act – applicants not required to
follow the recruitment process of the Public Service
Act if
reasonable expectation of permanent employment established.
Reasonable expectation established
JUDGMENT
COETZEE
AJ
Introduction
[1]
This matter comes before Court as an urgent application.
[2]
The applicants apply for the following relief:
[2.1] 'Declaring the applicants be
permanent employees, alternatively fixed term contract employees for
the period 1 July 2017 to
30 June 2020, alternatively 1 July 2017 to
30 June 2018 with effect from 1 July 2017 on the same terms and
conditions of employment
as were agreed between the applicants and
the first respondent in the three month fixed term contracts of
employment between these
parties for the period 1 April 2017 to 30
June 2017;
[2.2] Interdicting and restraining the
first respondent from interviewing and placing candidates, including
the applicants, in the
applicants' current positions as Judges'
Secretaries at the Labour Courts throughout South Africa and the
Labour Appeal Court.'
[3]
When the applicants launched the application, there were 18
applicants. The third applicant has since left the employ of the
Office of the Chief Justice (the OCJ). There remain 17 applicants.
They are the applicants in this matter.
The
background facts
[4]
The OCJ was established on 23 August 2010 and is responsible for all
aspects relating to the functioning of the superior Courts,
including
the Labour and Labour Appeal Court.
[5]
The OCJ employs all the applicants as Judges' Secretaries.
[6]
The OCJ in the past employed them on 12-month fixed term contracts.
Some have had their contracts renewed only once, some more
times and
at least one has had it renewed eight times.
[7]
The fixed term contracts, in accordance with the longstanding
practice, every year all expired on 31 March of that year. Each
year
the OCJ (and its predecessor) entered into new fixed term contracts
for another year.
[8]
It is common cause that over time the OCJ adjusted the remuneration
of the Judges' Secretaries in accordance with their seniority
and
service.
[9]
According to the OCJ, it commenced an investigation of appointing all
employees appointed on fixed term contracts for longer
than three
months on a permanent basis.
[10]
This investigation commenced "… at some stage after the
transfer of the functions of the Superior Courts"
to the OCJ.
That must have been after the establishment of the OCJ in 2010. The
respondents did not disclose the precise date.
[11]
Ms Mokoena, the Director Court Operations on an undisclosed date met
with the Judges' Secretaries and advised them of the investigation.
This must have occurred between 2010 and prior to September 2016.
[12]
Mr JS Mabena, the Labour and Labour Appeal Court, Court Manager
acting on behalf of the OCJ on 6 June 2016 issued a questionnaire
to,
amongst others, all the applicants. They were requested to indicate:
"Are you willing to be absorbed? Yes/No."
[13]
The applicants rely upon the long-standing practice and the repeated
number of fixed term contracts for a reasonable expectation
of
permanent employment.
[14]
The OCJ intended to appoint Judges' Secretaries on a permanent basis
by absorbing them into permanent positions.
[15]
The process to absorb the
applicants had been in progress when the Attorney-General (the AG)
submitted a report to the OCJ that
"… extending of
contracts without following recruitment and selection process is in
contravention of the Public Service
Act and its regulations.
[1]
"
(the PSA).
[16]
It is common cause that the PSA demands that the employer in the
public service must follow a recruitment, selection and appointment
process for the appointment of temporary and permanent staff.
[17]
The same procedure applies when temporary employment is converted
into permanent employment – a change in status as was
contemplated by the AG in respect of the applicants when he reported
to the OCJ. The procedure requires an advertisement, interviews,
consideration of all candidates and the appointment of the successful
candidates.
[18]
The AG required the OCJ to follow the prescribed process of the PSA
with the filling of the positions of the applicants.
[19]
It is common cause that the finding of the AG triggered the events
that eventually led to this application.
[20]
As a result of the AG's report the OCJ and the AG:
'…
subsequently agreed that when the contracts ended on 31 March 2017,
the first respondent would not renew them and thereafter
the
recruitment process stipulated in the statutory prescripts and Policy
would be followed.'
[21]
The respondents did not disclose to the applicants the date of this
decision.
[22]
The OCJ at the expiry of the fixed term contracts at the end of March
2017 then faced the following dilemma:
[22.1] The fixed term contracts of all
the applicants expire on 31 March 2017,
[22.2] The OCJ has not yet followed
the process required by the AG, and
[22.3] If the OCJ did nothing the
applicants according to the OCJ were not employees anymore and
without them, the functioning of
the Labour Court and the Labour
Appeal Court would suffer if not come to a complete standstill.
[23]
The OCJ quickly resolved the dilemma (in the short term) by
requesting the applicants to enter into fixed term contracts for
three months to enable the OCJ to get its house in order. The OCJ
required three months for this exercise.
[24]
The applicants had little choice in the matter.
[25]
Only on 4 April 2017, four days after expiry of his fixed term
contract, did the first applicant conclude a contract for a
3-month
period effective from 1 April 2017 to 30 June 2017. The other
applicants concluded similar contracts.
[26]
The OCJ without formally warning the applicants, on 6 April 2017
advertised the posts of 17 Judges' Secretaries in the Labour
Court
and Labour Appeal Court. The closing date was 13 April 2017. The
advertisement made it clear that an application may be unsuccessful
and that the Department "reserves the right not to fill these
positions".
[27]
The OCJ drew the attention of the applicants to the advertisements.
[28]
The applicants now faced a dilemma. If they do not apply for the
positions they occupy, they, or some of them, might well be
unemployed from 1 July 2017. If they applied and were unsuccessful,
the same result may still follow. They all applied for the
posts in
accordance with the advertisement, on their version, "in order
to safeguard our employment".
[29]
They were 18 candidates for 17 posts when the advertisement appeared
and had to compete with an unknown number of candidates
who might
apply for the posts.
[30]
The OCJ subsequently shortlisted 41 candidates for the 17 positions.
The applicants in this application do not know whether
they have been
shortlisted for interviews.
[31]
After submitting their applications and subsequent to the closing
date of 13 April 2017 the applicants submitted numerous emails
to the
OCJ as the applicants were concerned and wished to know whether they
would be automatically absorbed into the posts as they
expected all
along.
[32]
Ms Tsiane, the Chief Director: HR only on 21 April 2017 addressed an
email to a host of recipients. In the email, she confirmed
that it
had been recommended to the various Divisions of the High Court to
consider either permanent appointment where such posts
exist on the
establishment and, subject to certain approvals, three-year contracts
for the others. She pointed out that the PSA
applied.
[33]
She further confirmed that
approval
was given for three-year
contracts in relation to some Courts and permanent contracts in
relation to others. Approval was given
for the permanent employment
of the applicants. She did not address the email to the applicants.
The email came to their attention.
[34]
In reaction to the emails from the applicants and some judges, the
OCJ had a 3-hour meeting with the applicants on 9 May 2017.
The
applicants at this meeting referred to the decision taken by the OCJ
to make the appointments permanent by absorbing them into
permanent
positions.
[35]
The meeting of 9 May 2017 was the first direct contact between the
OCJ and the applicants relevant to this application.
[36]
The OCJ informed the applicants that the OCJ and the AG had taken a
decision to follow the PSA and its relevant regulations.
No mention
was made as to when the decision had been taken.
[37]
The applicants during the meeting of 9 May 2017 mentioned that during
2016, a representative from the Service Centre of the
OCJ addressed
them and informed them that those who wanted to be absorbed would be
absorbed and there would be follow-up meetings.
[38]
The applicants further mentioned that during 2016, they had a meeting
with the Court Manager after having completed yet a further
questionnaire on whether they wished to be absorbed and they were
informed that they would be absorbed and those who wanted to
be
permanent would be absorbed automatically.
[39]
The meeting concluded on the basis that the OCJ informed the
applicants that they had to compete through a recruitment process
with the other candidates for the positions they held.
[40]
The applicants then acquired the
pro bono
services of their
attorneys of record and counsel and a letter of demand was sent to
the OCJ on 18 May 2017. They requested the
OCJ not to proceed with
the interviews of the shortlisted candidates during that week.
[41]
They launched the application on 23 May 2017 where after the parties
agreed on dates to file their papers and the respondents
agreed to
stay the process pending the outcome of this application.
[42]
The respondents elected to challenge urgency, the jurisdiction of the
Court to hear the matter and the merits of the case of
its employees.
The
arguments and an analysis of the arguments
Jurisdiction
[43]
The respondents' first submission is that the horse has bolted and
that the Court cannot grant the relief that the applicants
seek.
[44]
They submit that the OCJ
dismissed the applicants on 4 April 2017 when they entered into new 3
month contracts. The respondents
rely upon an interpretation of
section 190(2)
of the
Labour Relations Act
[2
]
,
(the LRA) for the submission
.
It is not necessary to
repeat the contents of the section.
[45]
The argument would have had merit except for the fact that the OCJ in
its papers admitted an anticipated dismissal on 30 June
2017. There
is no factual basis for the submission that the horse has bolted and
no need to have reference to
section 190
of the LRA, as the date is
not in dispute.
[46]
The alternative submission is that the Court lacks jurisdiction
because it cannot deal with a dismissal that has not yet taken
place.
The submission is that the dismissal, on the version of the
applicants, will only occur on 30 June 2017 and the Court cannot
now
declare an anticipated dismissal unfair or grant any relief in
respect thereof. The applicants in any event have an alternative
remedy, that of an alleged unfair dismissal available and if
successful may later be re-instated.
[47]
The short answer is that the applicants want a declaration of rights
in respect of their reasonable expectation of further
employment to
avoid a dismissal.
[48]
There are appropriate cases in which this Court intervened to
interdict processes because of the fact that a continuation thereof
would result in an unfair (automatically unfair) dismissal.
[49]
The first example is where it can be established that a disciplinary
enquiry is an occupational detriment arising from a protected
disclosure.
[50]
The second and more general
example is where the employee can establish that it will suffer a
grave injustice if the disciplinary
enquiry proceeds in the manner
contemplated by the employer or where it is an exceptional case.
[3]
[51]
A third example is in the
section 197
litigation. Here, again, the
Court does not adopt a position that in the absence of an
(automatically) unfair dismissal having
occurred, it will not
intervene. Instead, it intervenes by way of a declaratory order to
avoid one occurring. The position is analogous
to the present case.
[52]
The Court in any event has jurisdiction to deal with the lawfulness
argument and whether the PSA applies as argued by the respondents.
[53]
I find that the Court has jurisdiction to entertain the application
for a declaratory order and ancillary relief.
Urgency
[54]
The respondents placed in dispute urgency.
[55]
In the case of
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
-
[4]
the Labour Appeal Court referred to the threshold for intervention in
a comparable situation as being, that “…
extraordinary
or compelling urgent circumstances
”
that must be established by the applicant.
[56]
The OCJ submits that there are no such circumstances and any urgency
is self-created.
[57]
The OCJ submits that the applicants on 4 April 2017 knew that on
their version their rights would be affected. If they did
not, they
should have known on 6 April 2017 when the advertisements appeared
that they must take steps to protect their rights.
They nevertheless
neglected to do so.
[58]
The fact that their rights were affected negatively should have
become even more abundantly clear during the meeting of 9 May
2017
when the OCJ informed them that the OCJ must follow the prescribed
process of the PSA.
[59]
They delayed the matter and only issued a letter of demand on 18 May
2017 and this, amongst others, demonstrated that the urgency
is
self-created.
[60]
The applicants explained that after the meeting of 9 May 2017 they
needed legal representation and advice and sought and found
their
attorneys of record who agreed to assist them on a
pro bono
basis. The next step was to find suitable counsel to assist them on a
pro bono
basis. This took time. They were criticised for not
giving more details of dates and attempts made to demonstrate that
they acted
as quickly as possible.
[61]
The urgency of the matter must, however, also be judged against the
pace set by the OCJ before and after the date when the
AG submitted
its report to the OCJ in September 2016.
[62]
According to the OCJ, it commenced an investigation of appointing all
employees appointed on fixed term contracts for longer
than three
months to be appointed on a permanent basis. This investigation
commenced "… at some stage after the transfer
of the
functions of the Superior Courts" to the OCJ. Ms Mokoena on an
undisclosed date met with the Judges' Secretaries and
advised them
accordingly. This must have been prior to September 2016.
[63]
The process to absorb the applicants had been in progress when the AG
during September 2016 submitted its report that "…
extending of contracts without following recruitment and selection
process is in contravention of the [PSR]".
[64]
Mr Mabena, on 6 June 2016, issued a questionnaire to, amongst others,
all the applicants. They were requested to indicate:
"Are you
willing to be absorbed? Yes/No."
[65]
The electronic communication from Ms Tsiane of 21 April 2017 (not
directed at the applicants) makes it clear that the response
from the
applicants had been a preference for the third option i.e. that of
permanent appointment. This recommendation had been
made and approval
had been obtained for permanent appointment. The rider on 21 April
2017 was that they had to compete through
the process demanded by the
AG.
[66]
The respondents do not disclose when the OCJ and the AG '…
subsequently agreed that when the contracts ended on 31 March
2017,
the first respondent would not renew them and thereafter the
recruitment process stipulated in the statutory prescripts and
Policy
would be followed.'
[67]
They never formally met with the applicants until 9 May 2017.
[68]
What is clear is that between September 2016 when the AG intervened
and 4 April 2017 the process driven by the OCJ developed
at a slow
pace and only escalated when the OCJ was faced with a dilemma at the
end of March 2017.
[69]
The new fixed term contracts were concluded on 4 April 2017 followed
by the advertisement on 6 April 2017. The applicants were
still in
the dark as to their future.
[70]
It was only on 21 April 2017 that the OCJ addressed the email to a
host of recipients excluding the applicants. They nevertheless
came
to know of the contents of the email.
[71]
The first actual contact between the parties was a meeting between
the parties on 9 May 2017 at the Labour Court. This was
the first
real opportunity for the applicants to raise their concerns and get
formal feedback.
[72]
The lack of pace on the part of the OCJ in finalising the
appointments is relevant to the urgency of this matter. It is
important
that the first meeting between the OCJ and the applicants
took place only on 9 May 2017.
[73]
The applicants acted diligently in pursuing their case from 9 May
2017.
[74]
The respondents deny that there is anything exceptional about this
case to make it urgent. What is different is that the OCJ
acceded to
the view of the AG that the LRA does not apply to the applicants
under circumstances where the parties, at least until
the AG arrived
on the scene, agreed that their employment status would be recognised
as permanent without any formalities.
[75]
It is exceptional that the parties were
at idem
that they were
to be absorbed onto the permanent staff but instead because of a
wrong interpretation and application of the law,
their service to the
employer has been disregarded and they were left in the dark.
[76]
The Court's interference is further justified by the fact that the
OCJ has embarked upon a process to interview 41 candidates
and
appoint 17 of them under circumstances where the dispute can be
resolved without any factual dispute. Unless the Court interferes,
much time and human resources will be wasted and the hopes of 41
candidates prolonged in vain.
[77]
The nature of the legal dispute makes this case also exceptional.
[78]
The applicants persuaded me that they are entitled to approach the
Court on an urgent basis to avoid a grave injustice to a
large number
of people and to determine the novel argument raised by the
respondents.
[79]
I also have regard to the fact that the dispute must be resolved in
the public interest to enable the two Courts to remain
functioning in
the short term.
The
main argument
[80]
The applicants allege that the conduct of the OCJ would amount to a
dismissal when their contracts expire on 30 June 2017 unless
the OCJ
recognise their reasonable expectation of renewal of their contracts.
[81]
The OCJ in its answering affidavit admitted that such a dismissal
would occur if the version of the applicants were correct.
[82]
They rely upon the protection
of
section 186(1)
(b) (ii)
[5]
of the LRA for their employment status.
[83]
The applicants submit that by virtue of their reasonable expectation
they are (in fact and law) permanent employees and not
temporary
employees whose positions have to be converted into permanent
positions.
[84]
There can be no doubt that prior to the report of the AG the OCJ
recognised the reasonable expectation of a renewal of the
contracts.
The practice that the employer has followed for many years is proof
thereof. The applicants also say so. The OCJ was
in the process of
converting the fixed term contracts into permanent employment for the
applicants without a recruitment process
when the AG expressed its
opinion.
[85]
They submitted that their dismissal would also be unlawful as the OCJ
wrongfully applies the provisions of the PSA and its
regulations.
[86]
The applicants denied that the PSA and its regulations apply to them.
While in form they may be on fixed term contracts, in
substance they
are permanent employees by virtue of the operation of
section 186(1)
(b) (ii) of the LRA.
[87]
They also submit that in any event the positions that the OCJ
advertised are not vacant positions. The position
is that the
provisions of the PSA can only apply to a vacant position. Because
they are in substance permanent employees, there
are no vacancies to
advertise.
[88]
They occupy those positions and have a reasonable expectation to keep
on occupying those positions for another year or on a
permanent
basis.
[89]
The OCJ in these proceedings disputed that they harboured a
reasonable expectation. The OCJ argues that the applicants after
4
April 2017 and certainly after 6 April 2017 could never have
harboured a reasonable expectation of any form of appointment because
of the information provided to them and because on 4 April 2017 they
concluded the new contracts for three months.
[90]
The fact that they entered into short term contracts on 4 April 2017
cannot serve to show that they had no expectation of further
employment. They entered into the contracts to solve the short-term
dilemma of the OCJ. They did not enter into the contracts because
they harboured no expectation of further employment. They applied for
the positions not because they had no expectation of permanent
employment, but in order to protect their employment.
[91]
The applicants expressed their expectation. They expressed their
understanding that the new contracts constituted a holding
position
for the OCJ. They at all times wished to pursue their rights to
employment. They harboured such an expectation.
[92]
The further argument is that even if there was such an expectation,
it can never be a reasonable expectation if it is in conflict
with a
statutory provision. The PSA has such a statutory provision fortified
by the relevant regulations.
[93]
The argument is that because the PSA requires a prescribed process
for appointments or any conversion of temporary status to
a permanent
status, the expectation at best can be to be included as candidates
for the positions when the OCJ (in this case) follows
the prescribed
process. Therefore, they cannot harbour an expectation of permanent
appointment without going through a recruitment
process.
[94]
The argument that the expectation can never be reasonable if it is in
conflict with a statutory requirement has a serious consequence.
The
consequence is that in the public service no temporary employee can
ever rely upon the protection of
section 186(1)
(b) (ii) of the LRA.
[95]
There is a clear conflict
between
section 186(1)
(b) (ii) and the PSA and its regulations. The
LRA resolves such a conflict in
section 210
[6]
in favour of the LRA. The LRA also specifically states that it binds
the State.
[7]
[96]
Section 186
must therefore trump the provisions of the PSA where
employees rely upon a reasonable expectation of permanent employment
(or a
further fixed term contract).
[97]
The dispute between the parties as to whether the PSA and its
regulations apply is resolved in favour of the applicants. There
is
nothing in law that prevents them from harbouring a reasonable
expectation of further employment without having to comply with
the
provisions of the PSA and its regulations.
[98]
The OCJ submitted that by entering into the new contracts, the
applicants not only could not harbour an expectation of employment
but also
waived
any claim thereto.
[99]
The argument that the applicants waived their right to further
employment by entering into the contracts is also without substance.
The presumption against waiver requires of the OCJ to persuade the
Court of waiver. The circumstances pertaining to the entering
into
the new contracts and the conduct of the applicants do not
demonstrate any waiver.
[100]
It is clear that the parties (before the advent of the AG report)
contemplated permanent employment for the applicants on
the terms and
conditions similar to those in the current fixed term contracts. They
are entitled thereto.
The
interdict
[101]
The respondents deny that the requirements for final relief in
respect of an interdict have been established.
[102]
I have found that the applicants have made out their case of a clear
right in terms of the LRA.
[103]
They entertain a reasonable apprehension of harm in that they will
not be successful during the interview competing with 41
other
applicants and that they might be left without a job.
[104]
The respondent submit that the applicants have an adequate
alternative remedy in that they may pursue an unfair dismissal
dispute if they are dismissed on 30 June 2017.
[105]
There is authority for the proposition that it must be an
adequate
alternative remedy. In this case the respondents act unlawfully in
advertising the positions and in filling the positions in accordance
with the PSA and its regulations. The alternative remedy is
inadequate in that there is no reason why they should be prejudiced
because of the wrong application of the law.
[106]
The Court has a discretion to grant an interdict. This is an
appropriate case to grant interdictory relief.
[107]
Both parties left the matter of costs with the Court. The parties are
in an ongoing relationship. The matter involved a somewhat
novel
point of law unsuccessfully raised by the respondents.
Order
[108]
I make the following order:
1. The forms and service provided for
in the Labour Court Rules are dispensed with and the matter is
treated as one of urgency in
terms of Rule 8.
2. The applicants are declared
permanent employees on the same terms and conditions of employment as
were agreed between the applicants
and the first respondent in the
three month fixed term contracts of employment between the parties
for the period 1 April 2017
to 30 June 2017.
3. The first respondent is interdicted
and restrained from interviewing and placing candidates, including
the applicants, in the
applicants' current positions as Judges'
Secretaries at the Labour Courts throughout South Africa and the
Labour Appeal Court.
4. Each party to pay their own costs.
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: Adv AT Myburgh SC, with Adv MJ van As
Instructed
by: Edward Nathan Sonnenbergs
For
the First Respondent: Adv G Hulley SC with Adv T Motloenya
Instructed
by: State Attorney Johannesburg
[1]
The Public Service Act, 1994
[2]
Act 66 of 1995
[3]
Booysen v The Minister of
Safety and Security and others
[2011] 1 BLLR 83
(LAC) at paragraph 54: "… the Labour
Court has jurisdiction to interdict any unfair conduct including
disciplinary
action. However, such an intervention should be
exercised in exceptional cases. It is not appropriate to set out the
test. It
should be left to the discretion of the Labour Court to
exercise such powers having regard to the facts of each case. Among
the
factors to be considered within my view be whether failure to
intervene would lead to grave injustice or whether justice might
be
attained by other means. The list is not exhaustive."
[4]
[2012] 8 BLLR 747
(LAC) at para 46. (
Gradwell
)
[5]
(1) '
Dismissal
'
mean-
(b)
an employee employed in terms of a fixed-term contract of employment
reasonably expected the employer-
(ii)
to retain the employee in employment on an indefinite basis but
otherwise on the same or similar terms as the fixed-term
contract,
but the employer offered to retain the employee on less favourable
terms, or did not offer to retain the employee.'
[6]
"Section 210
Application
of Act were in conflict with other laws
(1)
if any conflict, relating to the matters dealt with in this Act,
arises between this Act and the provisions of any other law
says the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail."
[7]
Section 209.