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[2017] ZALCJHB 394
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Gxolo v Harmony Gold Mine (Pty) Ltd and Another (J1124/2017) [2017] ZALCJHB 394 (27 October 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 1124/2017
In
the matter between:
JONES
BONAKELE GXOLO
Applicant
and
HARMONY GOLD MINE (PTY) LTD
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND ARBITRATION
Respondent
Heard
:
24 October 2017
Delivered
:
27 October 2017
Summary:
(Application – declaratory order – unlawful termination
of contract – no contractual
term established – no basis
for declaratory order)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an unopposed application to declare disciplinary processes
and all subsequent proceedings under the CCMA unlawful and
void ab
initio
. The consequential relief sought is retrospective
employment to the date of dismissal. The CCMA has no legal interest
in the matter
and ought not to have been cited as a respondent.
The
claim
[2]
The applicant was dismissed in 2010 and unsuccessfully tried to
review an arbitration award which presumably upheld the fairness
of
his dismissal. The applicant did not furnish the details of that
award to the court. Approximately 7 years after his dismissal,
he has
applied for a declaratory order in the form mentioned. In essence,
the basis for alleging that his dismissal was unlawful
is that, he
was dismissed following a disciplinary process which was invalid and
unlawful from its inception. He bases this claim
on a submission that
the charge sheet does not disclose an act of misconduct and that he
was found guilty on a charge different
to the one he was called upon
to plead to. He was charged with fraudulently claiming overtime pay
he was not entitled to because
in October and November 2010, because
it was neither authorised nor worked by him.
[3]
The applicant contends that it was only at the disciplinary enquiry
itself that the documents purportedly authorising his overtime
were
produced and he claims that, what appears to be his signature on the
forms is not in fact his own. The applicant submits claim
that
essential allegations that he had falsified the overtime forms was
not made. He further claims that the amount of overtime
he allegedly
illegitimately claimed was not specified in charge sheet. While I
agree that the charge sheet might have been better
set out, it is
sufficiently clear that he was accused of fraudulently claiming for
overtime not due to him and that it related
to overtime claimed in
the months of October and November. The charge sheet indicated those
overtime payments which the employer
considered legitimate and by
implication any other payments received were not.
[4]
In essence, what the applicant is seeking is the setting aside of his
dismissal as unlawful because of the poor formulation
of the charge
sheet. As the employer is a private company, the basis for a
declaratory order setting aside the dismissal must be
found in
contract. In so far as his claim is based on a defect in the
disciplinary procedure, the applicant has failed to identify
why
non-compliance with the disciplinary procedure would amount to a
material breach of his employment contract. Instead, he simply
asserts that the supposedly defective charges rendered his dismissal
and all the antecedent disciplinary processes unlawful, which
must
not be confused with a claim that his dismissal is unfair.
[5]
Applicant’s attorney,
Mr
Mogotsi
, who came on
record belatedly argued strenuously that the applicants entitlement
to a declarator fell squarely within the principles
enunciated in the
case of
Makhanya v
University of Zululand
[1]
,
save that in that case the legal validity of charges against Prof
Makhanya were not in issue. In that matter, the plaintiff had
claimed
that the respondent university had unlawfully terminated his contract
of employment and the issue which arose for the SCA
was whether he
was barred from pursuing that claim by virtue of having referred an
unfair dismissal claim to arbitration which
had been unsuccessful.
The SCA reaffirmed the principle that a claim for breach of contract
is a distinct claim which is not extinguished
by a concurrent unfair
dismissal claim.
[2]
the applicant also cited the case of
Mokopanele
en Andere V Administrateur, Oranje Vrystaat,en Andere
.
[3]
That case concerned whether employees could be dismissed summarily
without the right to a hearing in terms of clause 5(2) of Public
Service Staff Code instituted in terms of s 36 of Public Service Act
111 of 1984. As such, the case was not concerned with the
validity of
a dismissal in the context of a private employment relationship but
was concerned with the obligations of the state
as an employer.
[6]
In the context of a claim of an
employee who cannot assert administrative law rights against the
employer but is limited to exercising
their statutory or other common
law rights, the SCA case of
SA
Maritime Safety Authority v McKenzie
[4]
is more apposite. In that matter, the plaintiff had also prosecuted a
claim for unfair dismissal which had been settled with a
payment of
compensation by the employer. He then instituted a claim for
contractual damages on the basis that there was 'an explicit,
alternatively implied, further alternatively tacit term ... that the
employment contract would not be terminated ... without just
cause'.
He alleged that this clause had been breached and that he was
entitled to claim damages calculated on the basis that he
would
otherwise have continued working for his employer until his
retirement. The court in
McKenzie
held that,
inter
alia,
that “an
employee is entitled to a pre-dismissal hearing where that right is
conferred by a statute or by an employment contract.
The right arises
contractually where the
contract provides for it either expressly or tacitly
”.
[5]
The SCA also dismissed the suggestion that the common law employment
contract ought to be developed by importing rights flowing
from the
constitutional right to fair labour practices into employment
contracts.
[6]
In this application, the applicant did not attempt to explain where
the right not to be dismissed on incorrect charges arose. To
establish such a right in the context of an employment relationship
where the employer is not an organ of state, he ought at the
very
least to have alleged and provided a basis for substantiating that
his employment was subject to an express or tacit term
to that
effect, the breach of which entitled him to a declaration that is
employment had been unlawfully terminated.
[7]
There is one other issue that must be addressed. Even if the
applicant had been able to establish the existence of such a term
in
his contract and that the term had been breached and that such a term
was a material won entitling him to invoke the contractual
remedies
for a fundamental breach, it is highly unlikely the court would grant
him the particular relief he seeks. It is trite
that the alternative
remedies for a fundamental breach of contract are that, the plaintiff
may accept the repudiatory breach and
sue for damages, or may call
upon the party in breach to remedy the breach upon tender of
counter-performance by the plaintiff.
[8]
In this instance, the applicant does not seek damages. He has applied
for a declaratory order and, consequential upon such an
order, full
retrospective re-employment to the date of his dismissal. Such a
remedy would not be available to him even if he had
established the
employer had committed a material breach of contract for allegedly
dismissing him on an ill-conceived or unproven
charge of misconduct.
The reason for this is twofold. Firstly, there is no evidence that
the applicant ever tendered his services
(the counter performance)
and put the employer on terms to reinstate him, even after his failed
attempt to secure reinstatement
through his unfair dismissal claim.
Furthermore, in effect the applicant is effectively claiming specific
performance of his employment
contract a number of years after his
termination. An order of specific performance is within the
discretion of the court to grant
and it is highly improbable under
these circumstances that the court would consider such relief
appropriate after such an elapse
of time, even if he had belatedly
tendered his services.
[9]
In conclusion, I am satisfied that the applicant has failed to
establish a legal basis for his claim. Fortunately for the applicant,
the application was unopposed so he will not be burdened by a cost
order as well.
Order
The
application is dismissed with no order as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
B Mogotsi of M B Mogotsi
Attorneys
RESPONDENT:
No
appearance
[1]
2010 (1) SA 62 (SCA)
[2]
At paras [35] to [47].
[3]
1989 (1) SA 434 (O)
[4]
2010 (3) SA 601
(SCA); (2010) 31 ILJ 529 (SCA)
[5]
At 550, para [43]
[6]
At 553-4, paras [55] to [57].