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[2017] ZALCJHB 407
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Kolobe v Member of the Executive Council, Department of Health: North West Province and Another (J2747/17) [2017] ZALCJHB 407 (9 November 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
case No: j 2747/17
In
the matter between:
LESLEY
KOLOBE
Applicant
and
MEMBER
OF THE EXECUTIVE
COUNCIL,
DEPARTMENT HEALTH:
NORTH
WEST PROVINCE
First Respondent
DEPARTMENT
OF HEALTH: NORTH
WEST PROVINCE
Second Respondent
Heard
:
07 November 2017
Delivered
:
09 November 2017
Summary:
(Clear and material breach of right to an inquiry in which the
chairperson determines the sanction –
dismissal ultra vires the
PSA – exceptional circumstances warranting urgent relief)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent application to declare the applicant’s
dismissal unlawful and
void ab initio
.
[2]
The applicant claims his dismissal by the first respondent, the MEC
for Health in the Northwest Province contravened his employment
contract and is unlawful and contrary to the principles of fairness.
In effect, the applicant is claiming specific performance
of his
employment contract. It is not appropriate for the court to consider
his claim of unfairness as a separate ground in these
proceedings as
he has alternative remedies to pursue that claim.
[3]
In early December 2016, the applicant was accused of fraud or,
alternatively, attempted fraud.
[4]
The applicant made representations why he believed the allegations
were unfair, but was suspended on 8 February 2017. He also
complains
about the extension of his suspension beyond the 60 day period which
he claims was contrary to the Public Service Disciplinary
Code. That
was apparently also the subject matter of a separate referral as an
unfair labour practice, but was withdrawn at the
date of the hearing
to allow the respondent to finalise its investigation that it claimed
was nearly complete.
[5]
However, the enquiry did not resume and on 22 September 2017, he
simply received a letter asking him to make written representations
why he should not be dismissed for misconduct in terms of section 17
(2) (d) of the Public Service Act 103 of 1994. The applicant
made
representations on 2 October and subsequently followed up on what was
happening including trying to find out what happened
regarding the
previous intimations he had received that the investigation of his
case was nearly concluded. However, on 13 October,
he received a
peremptory letter notifying him that he was dismissed. He was also
advised that if he was unhappy with the decision
he should go
directly to the relevant bargaining Council and not lodge an internal
appeal.
[6]
He launched these proceedings 11 days later. I am satisfied he acted
with reasonable expedition in instituting proceedings.
[7]
The respondent contends that it complied with the requirements of
audi alterem partem
by giving him a chance to make
written representations in answer to the accusations against him and
that this satisfied the
requirements of a procedurally fair enquiry
under the Labour Relations Act, 66 of 1995 (’the LRA’).
It is clear that
the respondents simply decided to short circuit the
disciplinary enquiry procedure they had instituted in order to arrive
at a
quick resolution. This occurred in circumstances where the
enquiry was delayed by the respondent’s own purported need to
finalise its investigation.
[8]
In terms of clause 3.16 of his contract of employment, the Public
Service Disciplinary Code and Procedures are applicable. In
addition,
clause 3.18.2 of the contract stated that,
inter alia:
“…
the remainder of the
service conditions are contained in the Public Service Act, 1994;
Public service regulations, 1999 and Provincial
Policies.”
The
respondents do not dispute the applicability of these provisions but
simply argue that anything relating to procedural improprieties
is a
matter for arbitration. That is generally true as a broad principle,
but if a contractually obligatory and statutory procedure
is
completely disregarded the court may intervene. Moreover, where a
statutory body has clearly acted
ultra vires
that is an
important consideration.
[9]
The applicant claims that:
9.1 The
PSA procedures require that a disciplinary hearing must be conducted
and it is in the enquiry
that a sanction is determined, if any.
Section 77 (3) of the Basic Conditions of Employment Act ,75 of
s1997 (‘the
BCEA’) empowers the Labour Court to deal with
disputes arising out of contracts of employment, which would include
what is
in effect an application for specific performance of a
contract.
9.2
Secondly, only the chairperson of a disciplinary hearing can
pronounce on sanction of dismissal
in terms of section 16 B (1) of
the PSA.
[10]
Accordingly, he disputed the power of the MEC to dismiss him.
Although the power to dismiss an employee vests in the relevant
executive authority, it must be exercised in accordance with the
Labour Relations Act, 66 of 1995
. More specifically,
section 17(1)(b)
of the PSA states that “the power to dismiss an employee on
account of misconduct in terms of subsection (2) (d) shall be
exercised as provided for in
section 16
B(1). The last mentioned
provides that the head of Department or relevant executive authority
gives effect to the sanction of the
chairperson of a disciplinary
enquiry which is imposed on an employee found guilty of misconduct.
[11]
I am satisfied that this is a very clear case where the executive
authority dismissed an employee without acting in terms of
the above
provisions, and accordingly acted
ultra vires
quite apart from
whether he breached the employer’s contractual obligation to
conduct an enquiry in compliance with the PSA.
This is one of those
exceptional circumstances where urgent final relief is appropriate.
The fact that the applicant may have other
remedies does not deprive
him of the remedy to challenge action which is a clear breach of the
principle of legality and an equally
clear breach of his contractual
entitlements. Under the circumstances, the applicant’s
dismissal was unlawful and void
ab initio
.
Order
[1]
This application is dealt with as one of urgency in terms of
rule 8
of the rules of the Labour Court and the applicant’s failure to
comply with the ordinary rules of service and time periods
is
condoned.
[2]
The first respondent’s dismissal of the applicant is unlawful
and
void ab initio.
[3]
The respondents must reinstate the applicant with retrospective
effect to the date of his dismissal.
[4]
The respondents must pay the applicant’s costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Sikhakhane instructed by
Mokgara
Attorneys
RESPONDENT:
H
J Scholtz instructed by the
State
Attorney (Mafikeng)