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[2018] ZALCJHB 70
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Tshivhandekano v Minister of Mineral Resources and Others (J580/18) [2018] ZALCJHB 70; [2018] 6 BLLR 628 (LC); (2018) 39 ILJ 1847 (LC) (2 March 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 580/18
In
the matter between:
AUBREY
NDINANNYI
TSHIVHANDEKANO
Applicant
and
MINISTER
OF MINERAL RESOURCES
First Respondent
THE
DIRECTOR GENERAL OF THE
DEPARTMENT
OF MINERAL
RESOURCES
Second Respondent
THE
DEPARTMENT OF MINERAL
RESOURCES
Third Respondent
Heard
:
01 March 2018
Delivered
:
02 March 2018
Summary:
(Urgent – declaratory relief – dismissal unlawful and
void ab initio)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent application seeking a declaration that the
applicant’s dismissal on 15 February 2018 as unlawful and
void
ab initio.
[2]
The application was launched on 21 February for a hearing on 23
February but was postponed by agreement until 27 February. On
28
February the matter was postponed again by agreement through no fault
of the parties on account of the Labour Court being without
electricity because of a power cut and a failure of the backup
generator, which in any event, for inexplicable reasons, provides
powerful four lifts but no power to operate the courtrooms.
[3]
Following a disciplinary enquiry the chairman decided on 30 January
2018 found the applicant guilty of various charges but recommended
the imposition of a final written warning valid for six months. The
awning warning was duly issued to him on 2 February 2018 in
accordance with the outcome of the enquiry. However, on 15 February
2018 he was issued with a notice of dismissal by the director-general
in terms of which the final written warning was altered to a
dismissal.
[4]
The applicant argues in effect, that having already been sanctioned
following a disciplinary enquiry, the employer could not
dismiss him
without at least convening another disciplinary enquiry since the
previous disciplinary proceedings had run their course
and the
employer was now for
functus officio
in respect of the
proceedings which led to the imposition of the final written warning.
Evaluation
[5]
Although the actual hearing of the matter was delayed more than once,
neither counsel for the parties’ prepared written
heads of
argument, an omission which was not helpful to the urgent court.
[6]
In an application for final
relief, an applicant must establish (a) a clear right; (b) an injury
actually committed or reasonably
apprehended; and (c) the absence of
any other satisfactory remedy.
[1]
In addition, the applicant must demonstrate urgency.
[7]
In essence, the crisp issue is whether the employer could lawfully
alter the chairperson’s finding. If not, then the dismissal
was
unlawful and the applicant has demonstrated a clear right to relief.
[8]
The application is opposed principally on grounds that this court
does not have jurisdiction to hear the application and it
is not
urgent. The respondents do not deal with the substantive merits of
the alleged unlawfulness of the applicant’s dismissal.
Urgency
[9]
The applicant advances a number of grounds why his application
deserves immediate attention,
inter-alia
, that the dismissal
was affected without giving him a disciplinary enquiry which he was
contractually entitled to; that his dismissal
was reported in a
prominent daily newspaper and he would be able to maintain monthly
obligations including payment of his children’s
education.
[10]
In part, the question of urgency is tied up with the alternative
remedy available. There is no question that in due course,
if he
brought an application based on the same grounds it might obtain
substantial redress. However, given the pressur on the Labour
Court
motion roll at present it is unlikely such an application could be
enrolled before October. The newspaper article cites reasons
why the
applicant’s dismissal might have been based on improper motives
relating to him issuing a non-compliance notice to
a Tegeta Resources
mine, which has been implicated in the ‘state capture’
imbroglio. To the extent that the applicant
might be vindicated the
end of the year, when memories of the event are likely to have faded
from the public imagination, the reputational
damage is unlikely to
be restored at that point, and given the very clear unlawfulness of
his dismissal which is discussed below,
there is no reason why he
should not be entitled to relief on an urgent basis.
Clear
right
[11]
The respondents objected to the
court hearing this application on the basis that it essentially
asserts the applicant’s right
to fair labour practices in the
form of a substantively and procedurally fair dismissal. I agreed
that since the Constitutional
Court decision in
Steenkamp
& others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[2]
,
it is clear that the Labour Court should not entertain claims based
on the invalidity of a dismissal. However, the Constitutional
Court
was concerned there with declarations of invalidity of dismissals
based on non-compliance with the provisions of the Labour
Relations
Act 66 of 1995 (‘the LRA’). It was not concerned with the
court’s exercise of its powers to determine
contractual
disputes under s 77(3) of the Basic Conditions of Employment Act, 75
of 1997 (‘the BCEA’) nor was it concerned
with the
exercise of the court’s powers to “review any decision
taken or any act performed by the State in its capacity
as employer,
on such grounds as are permissible in law” as provided for in
section 158 (1) (h)”
[12]
The applicant points out that clause 1.1 of his employment contract
specifically incorporates the provisions of the Senior
Management
Service (‘SMS’) Handbook. The SMS Handbook effectively
requires an employer to convene a disciplinary enquiry
in cases of
alleged misconduct which may result in dismissal. It also requires
the employee to be given an opportunity to make
submissions in
mitigation before ascension is imposed. Further, section 16 B of the
Public Service Act, Proclamation Number 103
of 1994 (‘ the
PSA’) states:
“
Discipline
-(1) subject
to subsection (2), when a chairperson of a disciplinary hearing
pronounces sanction respect of an employee found guilty
of
misconduct, the following persons shall give effect to the sanction:
(h) In the case of a head of
department, the relevant executive authority;
(b) In the case of any other employee,
the relevant head of department.”
[13]
The respondent had already
acted upon the chairperson’s recommendation and issued a final
written warning, but then purported
to revise its own decision. It is
well established that in such cases the State as employer has the
right to review its own decision
in certain circumstances.
[3]
That does not equate to a right to simply take the matter into its
own hands and reverse a decision already taken.
[14]
Consequently, I am satisfied that since the employer had already
imposed the sanction of a final written warning, the respondent
simply did not have the power to amend that and any subsequent
dismissal would , at the very least have been a fundamental breach
of
the applicant’s clear contractual right to a disciplinary
hearing in terms of his contract of employment. Consequently,
the
decision to dismiss the applicant was both ultra vires and in breach
of his contract of employment.
Alternative
remedies
[15]
The applicant’s claim is quite independent of his claim to
challenge his dismissal as unfair in terms of the
Labour Relations
Act. It
is not substantially equivalent relief for the rights
discussed above. Moreover, the issues are particularly crisp in this
case
and the employer acted without the necessary power anymore when
it dismissed him. There is no reason why in the circumstances he
cannot insist on specific performance of a contract invalidly
terminated.
Costs
[16]
There was a strenuous argument made by the applicant for a punitive
cost award made against the second respondent, the director-general.
The claim was foreshadowed in the founding papers, though I tend to
agree that probably he ought also to have been sighted in his
personal capacity. Although there are indications that
mala fides
might have played a role in the attempted reversal of the
original sanction of a final written warning, there is insufficient
evidence
in the affidavits to support such a claim. Nonetheless, the
respondents ought not to have defended the matter in circumstances
where they did not even advance a substantial defence on the merits
and where the merits are so clear. Accordingly, a cost order
on the
higher scale is appropriate.
Order
[1]
The application is heard as one of urgency and the applicant’s
non-compliance with
the Rules of the Labour Court relating to service
and time periods in terms of
Rule 8
is condoned.
[2]
The applicant’s dismissal in terms of the letter dated 12
February 2018, annexed to
the founding affidavit, is unlawful and
void ab initio
and is set aside. ‘
[3]
The first and second respondents are directed to forthwith reinstate
the applicant to the
position he held prior to his dismissal and to
allow him to continue with his duties and responsibilities in that
capacity.
[4]
The respondents are ordered to pay the costs of this application on
the attorney own client
scale, save for the costs of appearing on 27
February 2018.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D
Mtsweni instructed by
Shandu
Attorneys
RESPONDENT:
W
R Mokhari SC instructed by
the
State Attorney.
[1]
[Setlogelo v Setlogelo
1914 AD 221
at 227; V & A Waterfront
Properties (Pty) Ltd & another v Helicopter & Marine
Services (Pty) Ltd & others
2006 (1) SA 252
(SCA) at para 20.]
[2]
(2016) 37
ILJ
564 (CC)
[3]
See
Ntshangase
v MEC: Finance, KwaZulu Natal & another
[2009] 12 BLLR 1170
(SCA)