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[2017] ZALCCT 50
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Barendse v Mossel Bay Municipality and Another (C465/2016) [2017] ZALCCT 50 (18 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
reportable
Case
no: c465/2016
In
the matter between:
ANDRE
BARENDSE
Applicant
and
MOSSEL
BAY MUNICIPALITY
First Respondent
HARRY
HILL N.O. (MUNICIPAL MANAGER)
Second Respondent
Heard
:
17 May 2017
Delivered
:
18 October 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an application for condonation for the late filing of a
statement of claim. The statement of claim was filed 6 days
late. The
first respondent opposes the application for condonation on the
ground that there are no prospects of the applicant succeeding
with
his cause of action based on the Protected Disclosures Act (PDA). The
matter was referred to the court from the bargaining
council because
it is founded on an allegation of an automatically unfair dismissal
as envisaged in section 187(1)(h) of the LRA.
[2]
The first respondent submits that the reason for the dismissal was
because the applicant failed to obey a lawful and reasonable
instruction from a person who had the authority to give it. Further
because of gross insubordination and a failure to refrain from
rude,
abusive, insolent, provocative, intimidatory or aggressive behaviour
to a fellow employee and gross insubordination arising
from an email
he wrote dated 26 June 2015.
[3]
Essentially I am asked to consider whether the email which was
translated from Afrikaans for the benefit of the Court, could
amount
to a Protected Disclosure. It was written by applicant to the Labour
Relations Officer of the First Respondent concerning
charges which
were laid against a colleague of applicant’s in the I.T.
Department. It reads as follows:
“
Sure, Gordi. I help where I
can. (Ek help graag waar ek kan.)
My view of the complaints against
Mr Fraser is that the charges were not measured against his character
or against the work which
he did.
A short while ago a statement was
also made that IT was evaluated 2 out or 5. We then did a survey to
establish where the dissatisfied
parties were and to our own
surprise, were rated between 4 and 5 out of 5 with the single person
who rates us a 1.
We then sent out another e-mail in
which we invited the dissatisfied person to come forward but that
person didn’t pitch.
Therefore (DWS) from
directorate/municipal office unfounded accusations came that IT isn’t
working correctly, although the
investigation shows that IT keeps
people vary happy.
It therefore creates an
interesting, unfounded BIAS based on which the following complaints
do not reveal any relationship with
reality.
The following trend was when the
charges against Mr Fraser in that he was castigated as being
negligent and that he did not comply
with a Facebook instruction and
that he lied about it.
I myself then made an interesting
‘honeypot’ statement on Facebook, upon which our director
then reacted in debate,
which proves that you do not show any
interest in the facts and do not wish to judge Mr Fraser on the
merits of the matter, but
that you act strategically in order to
undermine him. Therefore (DWS) the attack is dynamic, not based on
any facts or damage.
If we then look at the recording in
which the MM (municipal manager) admitted that she was not capable of
understanding Facebook
(bevoeg) (9 March 2015), and that the Facebook
charge was lodged against Mr Fraser after he showed her that then the
charge sheet
reads as a lie. I quote: ‘CHARGE 1, The
contravention of rule 1.2.4 of the disciplinary procedure and code
collective agreement
being the failure to lawfully comply with a
lawful and reasonable instruction which was given to you by a person
with the necessary
authority (bevoegdheid) and to comply with
that..’.
My commentary:
1. Mr Fraser
showed her beforehand, and Facebooks independent date stamp proves
that his story, rather than her
(that of the MM) is true.
2. Facebook
marketing is not an IT function. I understand Harry Hill, with a
similar Facebook background, since
2007 should have received the
instruction. He is the strategic public interface.
3. The
instruction is not reasonably executable (uitvoerbaar) with or
without a budget, and there is not a payment
structure in place with
which we could pay Facebook. Therefore (dws) the project would never
have worked.
4. Dr Gratz
herself in the 9 march 2015 (communication) admitted that she was not
capable of making Facebook calls
(judgments). In that meeting she
questioned the editing principles of the page and made no mention
(statement) that she had not
visited the webpage or Yulande.
Therefore she had at that stage not known the page was done and does
not doubt his evidence on
9 March. How can she be seen as capable
(bevoegt) during the disciplinary hearing? You are busy lying.
Then there is naturally the obvious
white elephant in the room …. The Facebook page was made
(gedoen) on time and dates stamped
by Facebook itself!
Mr Fraser is attacked without any
grounds and a false charge sheet, including false evidence, has been
created against him and that
from the disciplinary office of the
Municipality!!! This shows (reveals –dui op) serious abuse of
the law (misbruik van die
reg), to bring malicious and unfounded
charges against Mr Fraser.
Lastly, you charge him with the
fact that he did not work during his leave and that the budget
dropped on the ground during his
absence. This in my opinion reveals
that Mr Fraser is a victim of the municipality’s incapacity.
Therefore his shoes cannot
be filled in his absence.
The fact that the directors ignored
the risk and the disciplinary office created false charges against
him, reveal irrational and
irresponsible management.
To come with smoke and mirror
tactics, to abuse the legal system, to hide other people’s
incompetence and misconceptions,
as well as attacking a reasonably
good worker’s career (loopbaan) indicates an unhealthy
application of the law.
Regards, Andre Barendse”
[4]
The above letter accuses the HR department and the Municipal Manager
of lying; alleges the charge sheet against Mr Fraser is
false; the
evidence against him is false; and the disciplinary charges are
malicious and unfounded. The applicant characterises
this as serious
abuse of the law and the legal system. In his claim he relies on the
said letter being a Protected Disclosure that
he made with reason to
believe that the information it concerned shows or tends to show that
a miscarriage of justice has occurred,
is occurring or is likely to
occur.
[1]
[5]
Mr Stelzner for the respondents referred the Court to various case
law inter alia dealing with whether the subject matter of
a
disclosure in terms of the PDA related to ‘improprieties’
or irregular conduct, whether a disclosure was no more
than a
subjectively held opinion or an accusation; whether a disclosure was
made in good faith i.e. without ulterior motive, revenge
or malice.
[6]
The Court is expected to decide on whether there is any merit to the
claim under the PDA, and thus if it can grant condonation
for the
late filing of the statement of claim, without hearing any evidence.
This in a situation where the statement of claim was
only 6 days
late. In this Court’s view, while such a course may be less
costly and time consuming, it risks depriving the
applicant of his
access to justice and a due hearing by the Court. The trial Court is
the proper forum to make findings in this
matter rather than this
Court coming to conclusions based on the content of the email without
more ado. I therefore make the following
order:
Order
The
application for condonation is granted with costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant
:
M. Garcia instructed by DP Bezuidenhout Attorneys
First
Respondent
: R. Stelzner SC instructed by Cilliers Odendaal SC
[1]
Section 3 (1) (c) of the PDA