About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 443
|
|
Majola v Member of the Executive Council for Roads and Transport Gauteng Provincial Government (J2797/2017) [2017] ZALCJHB 443 (3 November 2017)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J 2797/2017
In
the matter between:
BONGA
BALDWIN MAJOLA
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
ROADS AND TRANSPORT
GAUTENG
PROVINCIAL GOVERNMENT
Respondent
Application
argued: 31 October 2017
Judgment
delivered: 3 November 2017
JUDGMENT
VAN
NIEKERK J
[1]
Until 18 October 2017, the applicant was employed by the respondent
as a chief director: registration and operating licensing.
In a
letter addressed to the applicant on that date, the respondent said,
amongst other things, the following:
In
light of the foregoing, I have come to the conclusion that on the
grounds of your incapacity to perform your tasks your services
with
the department should be terminated. You are dismissed.
[2]
I do not intend to canvass all of the facts that preceded this
letter; it is sufficient for present purposes to say that the
applicant had been charged with various acts of misconduct, that the
respondent had invited him to respond to certain propositions
concerning the employment relationship, and that this court had
dismissed an urgent application in which the applicant sought to
interdict disciplinary proceedings against him. The respondent
recorded that he had been concerned that the applicant and whose
head
of department appeared to have been in ‘a state of almost
perpetual dispute about one thing or the other’. The
applicant
expressed the view that it was unlikely that the time, expense and
effort expended in the forthcoming disciplinary hearing
would be well
spent and that irrespective of the outcome, it appeared likely that
the state of affairs referred to would continue.
On this basis, the
respondent sought unequivocal undertakings that they would be no
repeat of the applicant’s insubordinate
conduct, that he would
respect the head of department as the most senior officer in the
department and the applicant’s superior
officer and that he
would carry out his lawful instructions and directives. In addition,
the respondent sought an unequivocal and
solemn undertaking that the
applicant would not disrupt the smooth and efficient operation of the
department. The response to the
letter fell far short of what the
respondent had requested. In short, the applicant denied that he had
conducted himself in the
manner engaged by the respondent or that any
of the concerns raised by the respondent were valid. On 17 October
2017, the respondent
addressed a six-page letter to the applicant
recording that the applicant’s letter of response appeared to
be dedicated to
denying the validity of any suggestions of wrongdoing
or misconduct and that he had refused or failed to provide the
unequivocal
undertakings that had been sought. Further, there was no
assurance that the applicant would put in the requisite effort to
repair
the relationship between him and the head of department and
what the applicants had sought to do was simply to vindicate and
justify
the manner in which he had conducted himself without making
any commitment to change. The respondent recorded that he had come to
the conclusion that the applicant did not have the capacity nor was
he prepared to commit to develop the capacity to have a cordial
and
harmonious relationship with the head of department and other
employees in the chief directorate for which he was responsible.
Further, this was exacerbated by the applicant’s inability to
appreciate that adopting an approach of reasonable accommodation
was
necessary for the applicant properly to fulfil his functions. All of
this led to the applicant being incompatible with others
in the
Department and of rendering his services properly. In the light of
these considerations, the respondent came to the view
that the
applicant’s employment should be terminated on the grounds of
his incapacity. He was advised that he was dismissed
and that he
would be paid until 30 November 2017, in effect, giving him six
weeks’ notice.
[3]
In this application, brought on an urgent basis, the applicant seeks
an order to the effect that the termination of his contract
of
employment is unlawful and invalid, and that he be reinstated until
there has been compliance with the contract. The claim is
one brought
under s 77 (3) of the Basic Conditions of Employment Act, which
confers concurrent jurisdiction on this court to adjudicate
disputes
about contracts of employment. The applicant specifically disavows
any reliance on any of the remedies that might be available
to him in
terms of the LRA. In other words, the applicant does not challenge
the fairness of his dismissal – he claims a
breach of a term of
his contract by the respondent and seeks to enforce that term. In
particular, the applicant relies on the provisions
of s 17 of the
Public Service Act, the Public Service regulations and the senior
management service handbook which he avers have
been expressly
incorporated into his contract. The applicant submits that on
the facts, the respondent has concluded either
that he is guilty of
misconduct or that he is unable to perform his work, but that in
either case, the termination of his employment
was not preceded by a
duly-constituted hearing. In effect, the applicant seeks an order of
specific performance, a remedy that
this court is expressly entitled
to grant in terms of s 77A (e) of the Basic Conditions of Employment
Act.
[1]
[3]
The first hurdle that the applicant must overcome is that of urgency.
In this regard, he avers that his contract affords
him the
right to human dignity and the freedom to engage in productive work.
He submits that the respondent’s conduct impairs
that dignity,
denies him his lawful entitlements in law and places him in a
position his right to defend himself against the respondent’s
allegations have unilaterally been discarded and undermined. Should
the court not intervene, the applicant avers that he will suffer
and
continue to suffer prejudice, financial hardship and injustice.
[4]
Even if the applicant’s termination of employment was unlawful
and unfair, that does not make the matter urgent. An averment
of a
breach of procedure, however egregious that breach might alleged to
be, is not in itself a basis on which an applicant is
entitled to
have an application heard as a matter of urgency. Ultimately,
considerations of financial hardship and prejudice aside,
it is
incumbent on an applicant to establish that he or she will not be
able to secure adequate relief in due course. It may well
be the case
further that the termination of the applicant’s employment has
had or will have all of the consequences to which
he refers. His
difficulty is that these are consequences that inevitably flow from
any termination of employment. Were the impairment
of dignity and
financial hardship to be the applicable criteria, any employee
contending to have been unlawfully (or even unfairly)
dismissed would
inevitably be entitled to urgent relief. That is manifestly not the
case; urgent relief is available to dismissed
employees only in
exceptional circumstances.
[5]
To the extent that the applicant relies on financial hardship, his
counsel correctly points out that this court has on previous
occasions granted urgent interim relief on this basis. In
Harley v
Bacarac Trading 39 (Pty) Lt
d (2009) 30
ILJ
2085 (LC), this
court reaffirmed the general rule that financial hardship in itself,
is not a basis for urgency (see the authorities
referred to in
paragraph of the judgment). This is not to say that it can never be,
at least in circumstances where as the court
said the applicant:
…
is
able to demonstrate that he or she will suffer undue hardship if the
court were to refuse to come to his or her assistance on
an urgent
basis…. Each case must be assessed on its merits.
[2]
[6]
The applicant’s averments in relation to financial hardship are
no more than generalised, sweeping statements. He has
made no
specific, factual averments in relation to the nature and extent of
any immediate or short-term financial loss or hardship
that he says
he will suffer, nor has he provided any particularity in this regard.
In these circumstances, the applicant has failed
to establish that
his case is exceptional.
[7]
Similarly, there is no reason why considerations of dignity and
self-esteem ought, in themselves, to establish a basis for urgency.
As I have indicated, it is difficult to conceive of any termination
of employment where from the employee’s perspective at
least,
there is a loss of dignity and self-esteem, to some degree at least.
Work confers status, and provides many people with
meaning in life.
But again, it does not necessarily follow that any impairment of
dignity or self-esteem cannot be restored in
the ordinary course.
[8]
As I have indicated, this court ordinarily does not come to the
assistance of dismissed employees who seek intervention
pendente
lite
by way of urgent proceedings when their claim is one of
unfair dismissal, even when the test is posited at the level of a
prima facie
right. The position should be no different when
employees seek the same result (i.e. reinstatement) by way of the
different route
of contract and a claim for specific performance.
[9]
In these circumstances, it is not necessary for me to consider the
merits of the applicant’s claim regarding the procedure
that he
contends ought properly have been followed. Those are matters that
can be dealt with in the ordinary course.
I
make the following order:
1.
The application is struck from the roll for
lack of urgency.
André
van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. B Ford, instructed by Ndumiso Voyi Inc.
For
the respondent: Adv. V Soni SC, instructed by the state attorney.
[1]
The court
has affirmed that the remedy of specific performance is available,
subject to the court’s discretion to grant
or refuse the order
(see
Ramabulana
v Pilansberg Platinum Mines
,
Ngobeni
v National Youth Development Agency
(2014)
35
ILJ
1356
(LC) and
Somi
v Old Mutual Africa Holdings (Pty) Ltd
(2015) 36
ILJ
2370 (LC).
[2]
At
paragraph 8