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[2018] ZALCJHB 101
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Netshitombeni v National Consumer Commission and Another (J585/2018) [2018] ZALCJHB 101; [2018] 7 BLLR 703 (LC) (5 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J 585/2018
In
the matter between:
NTSIELENI
EMMANUEL
NETSHITOMBENI
Applicant
and
NATIONAL
CONSUMER
COMMISSION
First Respondent
EBRAHIM
MOHAMED
N.O.
Second Respondent
Application
heard: 2 March 2018
Judgment
delivered: 5 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks final
orders to the effect that the summary termination of his employment
be declared unlawful
ab initio
and set aside, and that he be
reinstated into his post. The applicant further seeks an order
interdicting the first respondent
from dismissing him without
following its disciplinary code and procedure, and costs on a
punitive scale.
[2]
The material facts are not in dispute and can be briefly stated as
follows. The applicant was employed by the first respondent
in 2011.
At the time that his employment was terminated (14 February 2018), he
was engaged as a senior manager: information technology.
The first
respondent is a statutory commission established in terms of
s 85
of
the
Consumer Protection Act, 68 of 2008
, and the second respondent is
the commissioner.
[3]
The applicant’s termination of employment had its origins in a
meeting of the first respondent’s management committee
held on
13 February 2018. The applicant was called on to address the
committee in relation to matters of performance within his
department. The applicant avers that during the course of the
presentation, while he was in the process of answering questions
and
clarifying queries, various arguments ensued, with the result that he
was unable to continue with his presentation in a competent
and
coherent manner. In particular, the applicant avers that his line
manager and the second respondent interrupted his presentation,
and
that it became clear to him that he was not being given a fair
opportunity to make his presentation. The applicant indicated
his
intention to leave the meeting. It is not disputed that the second
respondent advised the applicant that if he left the venue
of the
presentation, he would be acting contrary to his instructions and
commiting an act of insubordination. The applicant nonetheless
left
the venue and returned to his office, where he composed a letter of
grievance and then went home, despite an express instruction
to the
contrary from his line manager. The next day, 14 February 2018, the
applicant delivered the grievance letter to the second
respondent.
[4]
Shortly afterward, the applicant was called to the office of the
second respondent where he was handed a letter advising him
of his
dismissal with immediate effect. The letter of dismissal records that
the applicant’s employment is terminated, effective
from time
of receipt of the letter, on account of gross insubordination
displayed by the applicant to the second respondent during
the course
of the meeting on 13 February 2017. Further, the letter indicated
that according to records at the disposal of the second
respondent,
the applicant had on various occasions either left work early,
arrived late without permission or had been absent from
work without
leave.
[5]
In his founding affidavit, the applicant avers that this court has
jurisdiction ‘
to hear matters concerning unlawful summary
dismissal, dismissal in violation of company policy and dismissal in
violation of the
right to disciplinary procedures. Secondly, the
court has jurisdiction because both bodies carry on business within
its area of
jurisdiction’
. Of course, the second of these
averments does not confer jurisdiction on this court. The applicant’s
precise cause of action
(and thus the basis on which he contends that
the court has jurisdiction to entertain his claim) is not entirely
apparent from
the founding affidavit. The applicant refers to s 23 of
the Constitution, and specifically to the right to fair labour
practices.
He submits that dismissal from employment with immediate
effect does not constitute a fair labour practice. Further, the
applicant
avers that s 185 of the LRA provides that an employee may
not be unfairly dismissed or subjected to an unfair labour practice.
He submits that his dismissal amounts to an unfair dismissal, as well
as an unfair labour practice. The applicant also relies on
s 85(1)
of
the
Consumer Protection Act and
in particular, an obligation on the
first respondent to exercise its powers fairly and with due regard to
due process and the precepts
of the Constitution. The applicant also
relies on the first respondent’s own disciplinary code and
procedure, which establishes
processes that must be followed prior to
the dismissal of an employee. He contends that to the extent that his
employment was terminated
by reason of gross insubordination, there
is no reference to this form of misconduct in the first respondent’s
disciplinary
code and procedure. To the extent that his employment
was terminated on account of an act of misconduct, the applicant
submits
that the first respondent failed to comply with its own
policies and procedures. Finally, in the high water mark of the
founding
affidavit, the applicant submits the following:
22.6 I am also
advised that this honourable court recently dealt with the case of an
unlawful summary dismissal
in the matter of solidarity and others v
South African Broadcasting Corporation (J 1343/16 [2016] ZALCJ 273;
2016 (6) SA 73
(LC); (2016) 37 ILJ 2888 (LC);
[2017] 1 BLLR 60
(LC).
I am advised that my matter falls within that judgment, both on
urgency and facts.
[6]
The first issue to be determined is whether the court has
jurisdiction to entertain the applicant’s claim. As reflected
above, he appears to rely on six discrete grounds. The first is s 23
of the Constitution. While it is correct that s 23, guarantees
the
right to fair labour practices, the principle of subsidiarity
precludes a litigant from the direct invocation of a constitutional
remedy and requires that the claim be brought in terms of the
legislation that gives expression to the constitutional right. In
South African Defence Union v Minister
of Defence & others
2007 (5) SA 400
(CC), the court stated:
[A] litigant who seeks to assert [a
constitutional right] should in the first place base his
or her case on any legislation
enacted to regulate the right, not on
[the section of the Final Constitution]. If the legislation is
wanting in its protection
of the … right in the litigant’s
view, then that legislation should be challenged constitutionally. To
permit the
litigant to ignore the legislation and rely directly on
the constitutional provision would be to fail to recognise the
important
task conferred on the legislature by the constitution to
respect, protect, promote and fulfil the rights in the Bill of
Rights.
[7]
Similarly, in
Mazibuko v City of Johannesburg
2010 (4) SA 1
(CC) at paragraph [73], O’Regan J reiterated:
This court has repeatedly held that
where legislation has been enacted to give effect to a right, a
litigant should rely on that
legislation in order to give effect to
the right or alternatively challenge the legislation as being
inconsistent with the constitution.
[8]
Secondly, to the extent that the applicant relies on the LRA and in
particular, s 185, this court has no general jurisdiction
over unfair
dismissals or unfair labour practice disputes. Where a dismissal has
as its basis an act of alleged misconduct, the
LRA makes clear that
the CCMA or a bargaining council within whose registered scope of the
parties fall has jurisdiction to arbitrate
the dispute. Section 157
(5) provides that this court does not have jurisdiction to adjudicate
an unresolved dispute if the Act
requires the dispute to be resolved
through arbitration.
[9]
Thirdly, and to the extent that the applicant relies on
s 85(1)
of
the
Consumer Protection Act and
the assertion that the commission is
designated as an organ of state and that the first respondent is
accordingly required to exercise
its powers fairly and with due
regard to due process and the precepts of the Constitution, this
court has jurisdiction if and only
if the pleaded case is one that
falls within the ambit of s 157 (2) of the LRA. That section confers
concurrent jurisdiction with
the High Court in respect of any alleged
or threatened violation of any fundamental right entrenched in
chapter 2 of the Constitution
arising from employment and labour
relations, any dispute over the constitutionality of any executive or
administrative act or
conduct by the state in its capacity as
employer and the application of any law for the administration of
which the Minister of
Labour is responsible. Again, none of these
circumstances are referred to in the pleadings.
[10]
To the extent that the applicant contends that the first respondent’s
disciplinary code and procedure makes no reference
to gross
insubordination and that the first respondent did not comply with the
procedures established by code, again, to the extent
that this
amounts to no more than an assertion of procedural fairness in the
context of a reason for dismissal that is clearly
misconduct-related,
the dispute is one that falls within the jurisdiction of either the
CCMA or a bargaining council.
[11]
During argument, counsel for the applicant relied primarily on the
sixth ground referred to above, and on the judgment of this
court in
Solidarity & others v South African Broadcasting Corporation
(
supra
), to contend that the reference to that authority
amounted to an assertion of the fact of a breach of the applicant’s
contract
of employment by the first respondent (in the form of a
failure to comply with its own disciplinary code) and of an election
by
the applicant to claim specific performance of the contract. The
court was referred to the replying affidavit to which the applicant
annexed a pro-forma contract of employment which he avers is utilised
by the first respondent. Clause 12.2 of that contract provides,
amongst other things, that the employer shall be entitled to
terminate an employee’s contract after due disciplinary process
in accordance with the disciplinary code for any reason recognised by
law.
[12]
To the extent that the applicant asserts that this court has
jurisdiction by virtue of a prior authority that concerned similar
principles of law and facts, this cryptic cross-reference is
manifestly inadequate. A cursory glance at the
Solidarity v SABC
judgment makes clear that the applicants had pleaded their case as
one of a breach of a specific term of their employment contract
by
the employer (the disciplinary code was expressly incorporated into
the contract), and invoked s 77(3) of the BCEA (which affords
this
court jurisdiction in respect of dispute about contracts of
employment) as the basis on which they asserted that the court
was
empowered to entertain their claim.
[13]
In the present instance, to establish jurisdiction by virtue of s 77
(3), it was incumbent on the applicant in his founding
affidavit at
least to assert the existence of a contractual term entitling him to
the right to a hearing prior to any termination
of employment, a
breach of that term by his employer and the circumstances in which he
avers that he is entitled to the remedy
of specific performance. For
example, in the
Solidarity v SABC
case, as I have mentioned,
the applicants specifically pleaded and introduced evidence to the
effect that the right to a hearing
prior to dismissal had been
expressly incorporated into their contracts. In the present instance,
the applicant is not even gone
so far as to make that assertion in
unambiguous terms. However, for present purposes, I will accept in
the applicant’s favour
that the nature of the applicant’s
claim is one in which he asserts that the first respondent has acted
in breach of his
employment contract by failing to afford a hearing
prior to terminating his employment, and that the remedy he seeks is
that of
specific performance.
[14]
For the above reasons, by virtue of s 77 (3) of the BCEA, this court
has jurisdiction to entertain the applicant’s claim.
That being
so, the first hurdle that the applicant must overcome is that of
urgency. In this regard, the applicant avers
that his continued
absence from work legitimises an unlawful decision, that the
respondent’s suggestion that he was entitled
to approach the
CCMA was intended to frustrate his immediate resumption of duties,
that his attempts to reason with the respondents’
attorneys
have failed, that he cannot wait for the matter to be resolved in the
normal course on account of the unlawfulness which
he contends is
been perpetrated, that his continued absence from his office will
prejudice his ability to defend himself should
he be called to face a
disciplinary enquiry, that he has no other remedy available to him
under the circumstances and that is only
lawful option is to approach
this court in the manner in which he did. In reply, the applicant
makes a case for financial hardship
and makes sweeping terms,
unaccompanied by any documentation to provide evidence of the nature
and extent of the financial hardship
that he alleges, or the demands
by creditors to which he refers.
[15]
Even if the applicant’s termination of employment was unlawful
and unfair, that does not make the matter urgent. In
Solidarity v
SABC
at paragraph 67 of the judgment, the court observed that the
mere fact that the applicants had been dismissed in breach of the
contract of employment ‘
might not in and of itself warrant
urgent relief’
‘. The court went on to consider a
number of factors independent of the allegation of unlawfulness (all
of which had been
properly pleaded by the applicants) and concluded
that in the light of those factors (which included the nature of the
applicants’
occupation and the public role of the SABC, the
employer) that the case was not one where damages for wrongful
dismissal would
be an appropriate alternative remedy in due course.
[16]
In short, 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 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 truly exceptional circumstances.
[17]
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.
All of these averments are raised in reply and
strictly, ought
properly to be disregarded. But even if I were to have regard to
them, in my view, the applicant has failed to
adduce sufficient
evidence to establish that the degree of financial hardship is so
exceptional that his case falls into the category
of the exceptional.
[18]
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, in the appropriate
forum.
[19]
Finally, in relation to costs, the applicant sought a punitive order
for costs against the respondents, and has gone so far
as to seek an
order against the second respondent that he be held personally liable
for the costs of the application. The respondents
seek an order for
costs on the ordinary scale against the applicant. Section 162 of the
LRA confirms a broad discretion on this
court to make also costs in
accordance with the requirements of the law and fairness. This court
traditionally does not make orders
for costs where genuinely
aggrieved but misguided employees seek recourse, in good faith,
against their employers. I see no reason
to depart from that
convention and in my view, the requirements of the law and fairness
are best satisfied by each party paying
its own costs.
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. O Mooki, instructed by Selebogo Attorneys
For
the respondent: Adv. R Beaton SC, instructed by Erasmus Scheepers