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[2018] ZALCJHB 45
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Smith and Another v Office of the Chief Justice and Others (J1499/17) [2018] ZALCJHB 45; [2018] 5 BLLR 523 (LC); (2018) 39 ILJ 1357 (LC) (2 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J 1499/17
LATOYA
SAMANTHA
SMITH
First Applicant
CHRISTINAH
MOKGADI MAHLANE
Second Applicant
and
OFFICE
OF THE CHIEF
JUSTICE
First Respondent
MEMME
SEJOSENGWE
Second Respondent
ANTOINETTE
THERON
Third Respondent
JEANETTE
NGOBENI
Fourth Respondent
Heard:
13 December
2017
Delivered:
2 February 2018
JUDGMENT
PRINSLOO.
J
Factual
background
[1]
The
Applicants were employed as ‘pool secretaries’ and
assisted acting judges in the Gauteng Division, Pretoria High
Court.
[2]
The First
Applicant (Smith) was appointed as a judge’s secretary in
January 2007 when she signed a fixed term contract of
employment with
the First Respondent’s (OCJ) predecessor, the Department of
Justice and Constitutional Development (the Department),
which
contract terminated on 29 March 2007. The Second Applicant (Mahlane)
was appointed as a judge’s secretary in April
2013 on a fixed
term contract with termination date of 7 June 2013. The Applicants
subsequently and respectively concluded further
fixed term contracts
with the OCJ and their last 12 month’s fixed term contracts
ended on 31 March 2017.
[3]
On 28
March 2017 the Third Respondent (Theron) indicated in an electronic
mail to the Applicants and other judge’s secretaries
that their
extension letters were ready for collection. The said extension
letter indicated that the contracts for the judges’
secretaries
in the Gauteng Division Pretoria had been extended until 30 June 2017
and that they had to sign a contract of employment
for the period 1
April – 30 June 2017.
[4]
On 30 March 2017 the Fourth
Respondent (Ngobeni) explained the three month contract extension of
the judge’s secretaries and
explained that the Department had
previously extended the judge’s secretaries’ fixed term
contracts automatically and
without following any recruitment
process. That practice had resulted in negative audit findings.
Auditors from the office of the
Auditor General (AG) had recommended
that proper recruitment processes in line with the applicable
policies and regulations be
followed, and the OCJ was required to
implement the recommendations urgently.
[5]
The
filling of positions without following a due recruitment process was
in contravention of the relevant prescripts and more specifically
the
Public Service Regulations (PSR).
The
judge’s secretaries’ contracts were to be extended for
three months to allow for the completion of recruitment processes
and
to avoid automatic future extensions.
[6]
The Applicants were appointed
on this basis and in these circumstances for a further period, from 1
April – 30 June 2017.
[7]
On 3 May
2017, the Applicants and other judge’s secretaries received an
electronic mail to which was attached the advertisement
of 35
positions of judge’s secretaries. The positions were advertised
on a 3 year fixed term contract basis, extending to
31 March 2020.
The advertisement also listed the post requirements, duties and
responsibilities of the incumbent and the closing
date for
applications, being 12 May 2017.
[8]
Each of
the Applicants responded to the advertisement and applied for the
advertised positions.
[9]
The
Respondents followed a shortlisting process and informed the judge’s
secretaries on 31 May 2017 that the interviews for
the advertised
positions would be held on 2 and 5 June 2017, and that the candidates
to be interviewed would be invited and informed
of the exact date and
time of their interviews.
[10]
Ms Smith
was not shortlisted nor invited to an interview as she did not meet
the basic requirements of the post, in that she was
unable to provide
a matric certificate. Ms Mahlane on the other hand was interviewed
but she was unsuccessful.
[11]
On 29
June 2017, the Applicants launched an urgent application in this
Court. On 30 June 2017, by agreement between the parties,
the matter
was postponed to 3 July 2017 to afford the Respondents an opportunity
to file an answering affidavit.
[12]
On 3 July
2017 the matter was struck from the roll for lack of urgency. The
Applicants’ attorney subsequently requested a
preferential
hearing of the matter and the matter was enrolled for hearing on 13
December 2017.
The
relief sought
[13]
The
Applicants’ case is that the decision to extend their fixed
term contracts for a further three months and to follow a
recruitment
and selection process was informed by the audit findings of the AG
that the extension of the Respondents’ contracts
without
following a recruitment and selection process would amount to a
contravention of the PSR.
[14]
PSR 65
and 67 deal with the advertisement of posts and the selection of
candidates. The Applicants’ case is that the PSR are
not
applicable to their positions, as they regulate the procedure to be
followed in the filling of vacant positions. The Applicants
contend
that they are the incumbents of their positions, and that those
positions are thus not vacant.
[15]
The
Applicants submit that they had a reasonable expectation to either
become permanent employees of the OCJ, or to be offered three
year
fixed term contracts of employment. There is no justifiable reason
for them not to remain in their positions as there remains
a need for
pool secretaries.
[16]
Alternatively,
and insofar as the PSR 65 and 67 may apply, the Applicants submit
that the PSR are in conflict with section 186(1)(b)
of the Labour
Relations Act
[1]
(LRA), and the
provisions of the LRA prevail over the PSR. The Respondents’
failure to employ the Applicants either as permanent
or fixed term
employees constitutes a dismissal as contemplated in section
186(1)(b) of the LRA.
[17]
In the
notice of motion, the Applicants’ seek an order declaring them
to be permanent employees, alternatively fixed term
contract
employees, for the period 1 July 2017 – 30 June 2020,
alternatively for the period 1 July 2017 – 30 June 2018
on the
same terms and conditions of employment as were agreed to for the
period 1 April 2917 – 30 June 2017.
[18]
The
Applicants also seek an order to interdict and restrain the OCJ from
terminating their employment with effect from 30 June 2017.
The
arguments
[19]
In
argument, Mr Snyman, who appeared on behalf of the Applicants,
abandoned the relief sought in respect of permanent employment
or
employment on a three year fixed term contract and conceded that the
only reasonable expectation the Applicants could have had
was for
appointment on a one-year fixed term contract.
[20]
Mr Snyman
submitted further that the Applicants were entitled to an order
declaring them to be fixed term contract employees for
the period 1
July 2017 – 30 June 2018. The Applicants rely in this regard on
the ‘protection’ of section 186(1)(b)
of the LRA and
contend that there is a conflict between the provisions of section
186(1)(b)(ii) of the LRA and the PSR, in which
event the LRA should
apply.
[21]
In my
view, this argument is obviously flawed, for a number of reasons.
Firstly, the Applicants locate their right to the declaratory
relief
they seek in section 186(1) of the LRA, but the said section does no
more than to set out the meaning of ‘dismissal’.
It does
not bestow any rights or ‘protection’ upon employees.
Secondly, save for stating that they rely on section
186(1)(b) of the
LRA (which simply extends the definition of dismissal to include the
non-renewal of a fixed term contract or the
non-retention of an
employee when there was a reasonable expectation that the employer
would do so), the Applicants fail to set
out in their papers before
Court on what basis they are entitled to the declaratory order that
they seek. I will fully deal with
this issue
infra.
Thirdly,
the PSR and specifically PSR 65 and 67 deal with the advertising of
positions and the selection process to be followed
in the public
service and there is no conflict in that with the provisions of
section 186(1)(b)(ii) of the LRA specifically.
[22]
Mr
Soni, on behalf of the Respondents, argued that the Applicants are
not entitled to declaratory relief they seek. The gist of
his
argument was that the Applicants are not entitled to the said relief
where the dismissal has already taken place and that the
Applicants’
remedy lies at the bargaining council and not this Court. Mr Soni
further relied on the judgment by the Constitutional
Court in
Steenkamp
and Others v Edcon Limited
[2]
(Steenkamp),
to
submit that this Court was not empowered to make any findings in
relation to the alleged unlawfulness of the Applicants’
dismissal. Mr Snyman conceded that should
Steenkamp
be
applicable
in
casu,
the
Applicants are in the wrong forum.
Analysis
[23]
The
declaratory relief that the Applicants seek is predicated on a
finding that the Applicants’ dismissal was either unlawful
or
unfair, or both. Assuming in favour of the Applicants that they had a
reasonable expectation of indefinite appointment and that
they were
thus dismissed for the purposes of section 186(1), the crisp issue
for decision is whether it can be said that the Applicants’
dismissal was unlawful and unfair.
[24]
I deal
first with the Applicants’ submissions regarding the alleged
unlawfulness of the OCJ’s failure to appoint them.
In
Steenkamp
,
the Constitutional Court held that
there
is no provision in the LRA for a right not to be dismissed unlawfully
and no provision is made for any dispute procedures
or processes for
the enforcement of such a right. If the LRA contemplated such a right
in regard to dismissals, it would have made
provision for it and for
a dispute procedure to be followed in disputes concerning its
infringement. Nowhere in the entire LRA
is there mention of the words
'dismissal' and 'unlawful' or 'invalid' in the same sentence. Yet
there are many sentences in the
LRA in which the words 'dismissal'
and 'unfair' appear. The LRA does not contemplate a right not to be
unlawfully dismissed nor
does it contemplate invalid dismissals or
orders declaring dismissals invalid and of no force and effect.
[3]
[25]
Specifically, the majority of
the Court held that:
‘
The
LRA created special rights and obligations that did not exist at
common law. One right is every employee's right not to be unfairly
dismissed which is provided for in s 185. The LRA also created
principles applicable to such rights, special processes and fora
for
the enforcement of those rights. The requirement for the referral of
dismissal disputes to conciliation is one of the processes
created by
the LRA. The CCMA, bargaining councils and the Labour Court are some
of the fora. The principles, processes, procedures
and fora were
specially created for the enforcement of the special rights and
obligations created in the LRA. Indeed, the LRA even
provides for
special remedies for the enforcement of those rights and obligations.
The special remedies include interdicts, reinstatement
and the award
of compensation in appropriate cases. These special rights,
obligations, principles, processes, procedures, fora
and remedies
constitute a special LRA dispensation.’
[26]
There is no
remedy this Court can afford the Applicants to the extent that they
claim that their dismissal was unlawful.
[27]
To the
extent that the Applicants contend that their dismissals were unfair,
this Court is empowered to adjudicate unfair dismissal
claims only in
those circumstances contemplated by section 191(5)(b) of the LRA, and
only after the dispute has been referred to
the relevant statutory
body for conciliation.
[28]
Applicants’
case is that the appointment of another candidate into one of ‘their
posts’ constitutes a dismissal
as contemplated in section
186(1)(b) of the LRA as they reasonably expected to either become
permanent employees or to be offered
three year fixed term contracts
and that this Court has jurisdiction to decide this matter.
They
rely on
Luvuyo
Nowalaza and Others v Office of the Chief Justice and Another
[4]
in
support of their submission that the application was not brought
prematurely and that this Court has jurisdiction to decide
this
matter.
The
Applicants’ reliance on
Nowalaza
is misplaced and their argument failed to consider the
dicta
of
the Constitutional Court in
Steenkamp,
which
this Court is bound by.
[29]
The
application of section 186 (1) (b) (ii) of the LRA means no more than
that an employee whose contract has not been renewed may
assert the
existence of a dismissal where he or she reasonably harbours an
expectation of indefinite employment. Whether or not
the dismissal so
established is fair is a separate enquiry.
[30]
In
short, in the present instance, the papers do not disclose a reason
for dismissal that brings the present dispute within the
ambit of
this Court’s jurisdiction, nor is there any evidence that the
dispute has been referred for conciliation. Indeed,
it was common
cause that the dispute had not been referred to conciliation. That in
itself is fatal to any claim of unfair dismissal
– see
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
[5]
where
it was held that absent conciliation, this Court has no jurisdiction.
The Applicants should enforce their right not to be
unfairly
dismissed through the processes and procedures provided for in
section 191 of the LRA and they are confined to the remedies
provided
for in section 193 of the LRA.
[31]
In these
circumstances, it is not necessary for me to deal with Mr Soni’s
submissions regarding the date of dismissal and
specifically that the
Court is precluded from making an order in terms of the notice of
motion where a dismissal had already been
effected. The fact remains
that the Applicants have not established the existence of any
substantive right which this Court may
directly enforce. It remains
for me to add that nothing in this judgment should be construed as a
finding to the effect that the
PSR override any of the rights to
security of employment established by the LRA. Section 210 makes
clear that but for the Constitution
and any law amending the LRA, the
LRA prevails. My finding amounts to no more than that the Applicants
are not entitled, at this
point and in this forum, to the relief that
they seek.
Costs
[32]
The last
issue to be decided is the issue of costs.
[33]
The Labour
Appeal Court confirmed that
[6]
:
‘
The rule of
practice that costs follow the result does not govern the making of
costs orders in the Labour Court, and such orders
are made in
accordance with the requirements of law and fairness. See in this
regard
Member
of the Executive Council for Finance: Kwazulu-Natal and Another v
Dorkin NO and Another
[7]
where Zondo JP explained the rationale for that approach:
[T]he
norm ought to be that costs orders are not made unless those
requirements [of law and fairness] are met. In making decisions
on
cost[s] orders this Court should seek to strive to strike a fair
balance between, on the one hand, not unduly discouraging workers,
employers, unions and employers’ organisations from approaching
the Labour Court and this Court to have their disputes dealt
with, on
the other, allowing those parties to bring to the Labour Court and
this Court frivolous cases that should not be brought
to Court. This
is a balance that is not always easy to strike but, if the Court is
to err, it should err on the side of not discouraging
parties to
approach these Courts with their disputes…’
[8]
[34]
The
Applicants are fighting to retain their employment and in doing so
opted to approach this Court, albeit incorrectly so. This
Court has a
wide discretion in awarding costs and
Mr
Soni did not press for a cost order.
In
view of the position the Applicants find themselves in, the interest
of justice would be best served by making no cost order.
[35]
In the premises I make the
following order:
Order:
1.
The
application is dismissed;
2.
There is
no order as to costs.
___________
C. Prinsloo
Judge
of the Labour Court
Appearances:
Applicants:
Advocate M Snyman
Instructed
by:
Mthembu Sibiya Attorneys
Respondents:
Advocate V Soni SC
Advocate
T Motloenya
Instructed
by:
State Attorney, Johannesburg
[1]
Act
66 of 1995 as amended.
[2]
[2016]
4 BLLR 335
(CC), (2016) 37 ILJ 564 (CC).
[3]
Steenkamp
at
para 132 and 133.
[4]
(J
1177/2017).
[5]
(2015)
36 ILJ 363 (CC).
[6]
Lawrence v
Mutual and Federal (Pty) Ltd
,
Unreported case number JA 77/2014, handed down on 15 September 2016.
[7]
[2008]
6 BLLR 540 (LAC).
[8]
At para 17.