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[2018] ZALCJHB 159
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Huma v Council for Scientific and Industrial Research and Another (J1812/2016) [2018] ZALCJHB 159; [2018] 8 BLLR 797 (LC) ; (2018) 39 ILJ 1753 (LC) (24 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
C
ase
no: J1812/2016
In the
matter between:
GOITSEMANG
HUMA
Applicant
and
COUNCIL
FOR SCIENTIFIC AND INDUSTRIAL
RESEARCH First
Respondent
MINISTER
OF SCIENCE AND TECHNOLOGY
Second
Respondent
Heard: 8 February 2018
Delivered:
24 April 2018
Summary:
Application for specific performance of clause in disciplinary code;
disciplinary code incorporated by reference into employment
contract;
whether delay in responding to proposal regarding independent
chairperson amounted to waiver of rights by the
applicant.
JUDGMENT
RABKIN-NAICKER. J
[1]
This application has been brought in terms of section 77(3) of the
Basic Conditions of Employment Act
[1]
(BCEA) and is framed as an application for specific performance after
the first respondent (the Council) denied the applicant the
opportunity to appeal against her dismissal consistent with its
Disciplinary Code. The second respondent abides by the decision
of
this Court.
[2]
The applicant seeks that this Court make an order in the following
terms:
“
1.
To declare the decision taken by the Chairperson of the Board of the
First Respondent
not to afford the Applicant the right to appeal her
dismissal by the First Respondent as arbitrary, irrational and
unlawful and
set it aside;
2.
To order the First Respondent to initiate the appeal proceedings to
hear the
Applicant’s appeal application to be presided over by
an external chairperson who is to be duly appointed by the
Chairperson
of the Pretoria Chairperson of Advocates.
3.
To order the First Respondent to allow the Applicant to exhaust all
the internal
remedies before approaching any competent tribunal or
the Labour Court to challenge her dismissal.
4.
To order the First Respondent to reinstate the Applicant albeit
suspended in
her position as the Group Executive: Human Resources
with full employment benefits back-dating the said benefits from the
date
of dismissal pending the finalisation of the appeal;
5.
To order the First Respondent to reinstate and reinvest as from the
date of dismissal,
all the full pension benefits of the Applicant in
the CSIR pension scheme pending the finalisation of the appeal;
6.
To order the reversal of R492 399.52 paid on the 12
th
April 2016 to the Applicant by the First respondent following the
conclusion of the disciplinary process.”
[3]
The applicant started her employment as Group Executive: Human
Resources on a fixed term appointment from 1 May 2915 to 30 April
2020. She was given notification of a disciplinary hearing for
misconduct on 23 January 2016. She was found guilty of the charges
by
the disciplinary committee on 3 March 2016 and it recommended the
sanction of dismissal to the Council’s Board. Board
Chairman,
Professor Majozi accepted the recommendation and a sanction of
dismissal was confirmed. The applicant was paid 3 months’
salary in
lieu
of notice.
[4]
The founding affidavits makes a number of averments relating to
procedural defects in the disciplinary process. This Court will
make
no findings in relation to these. The applicant filed an appeal
against her dismissal on 18 April 2016. She received a letter
from
Professor Majozi on 28 April 2016 which read as follows:
“
I
acknowledge receipt of your notice of appeal and thank you for the
same.
As
you are aware, in terms of the disciplinary code, I as chairman of
the board have to deal with your appeal. However, due to the
fact
that I appointed the disciplinary committee which presided over your
enquiry, in the interest of fairness it may not be deemed
appropriate
for the Board or any member thereof to deal with the appeal.
The
only reasonable option left is, therefore, to appoint an external
third party to preside over your appeal subject to your agreement.
Kindly
indicate if you are agreeable to the external third party appointed
by me to preside over your appeal, failing which, you
are advised to
exercise your right to refer a dispute about the fairness or
otherwise, of your dismissal.”
[5]
The applicant responded to this letter on 24 June 2016. She apprises
the Court of the various reasons for her delay including
that she was
out of the country in the United States during two weeks in May and
problems she had communicating with her erstwhile
attorney who left
his firm also in May 2016.
[6]
A letter from Professor Majozi dated 29 June 2016 addressed to the
applicant’s attorneys reads in material part as follows:
“……
my letter to
your client was dated 21 April 2016, a period of two months and a few
days ago.
At this stage, the option that was
offered to client to appoint an independent third party to preside
over the appeal has lapsed
give the lapse of time between our letter
and your purported response.
As you are aware, in the interests of
fairness to both parties, matters of this (sic) must be resolved
speedily and expeditiously
or at least within a reasonable time.
Accordingly your client’s
failure to exercise the option that was given to her in my letter of
21 April 2016 within reasonable
time was accepted as her rejection of
the offer and the matter was closed as such.
As indicated in my letter dated 21
April 2016, your client had to (sic) option to either accept the
offer extended to her failing
which, refer the dispute to the CCMA.
For the purposes of referring the dispute to the CCMA, your client
had to option to do so
within 30 days of the decision to terminate
her employment….”
[7]
The disciplinary code is annexed to the founding papers and clause 2
of the document reads as follows: “
this document forms part
of these Conditions of Service dated 1 April 2002, which applies to
all employees and to each case where
discipline must be applied.”
The applicant’s contract of employment in clause 6 thereof
reads as follows:
“
6.1 The Parties specifically
agree that save as amended hereby, the CSIR Conditions of Service
shall apply to the Group Executive.
A copy of the said Conditions of
Services is attached hereto and marked Annexure “A”.
6.2
In the event of any conflict between the provisions of this agreement
and the provisions
as contained in the CSIR Conditions of Service,
the provisions as contained in this agreement shall prevail.”
[8]
It is accepted, in view of the above, that the disciplinary code is
incorporated by reference into applicant’s contract
of
employment and this Court has jurisdiction in terms of section 77(3)
of the Labour Relations Act
[2]
(LRA) to hear the application.. The disciplinary code which binds the
applicant and the Council deals with an employee’s
right to
appeal for a review of a disciplinary sanction. Clause 13.4 of the
disciplinary code reads as follows:
“
An employee who wishes to refer
any dispute arising from a decision of a Disciplinary Committee to
the Council for Conciliation,
Mediation and Arbitration (CCMA) or to
either a competent Labour Court or High Court by invoking the
provisions of the
Labour Relations Act, 1995
), as amended, shall only
be able to do so after all the CSIR’s internal remedies and /or
procedures have been exhausted.”
[9]
It is averred by the applicant that the sole intention in bringing
this application is to seek specific performance of the terms
of
contract relating to internal remedies. It is submitted on her behalf
that the terms of the provisions of the Council’s
disciplinary
code, Clause 13.4 have not been complied with and that the Council
took a unilateral decision to close the door to
an internal appeal.
[10]
For the Council it was submitted that the applicant is only entitled
to an order for specific performance in the event of a
breach of
contract by the Council. However, it submits that it is clear that it
was impossible for the Council to comply with the
provisions of
Clause 13 because Professor Majozi and any other persons who
potentially could have entertained the appeal were involved
in some
or other way, in the decision resulting in the applicant’s
dismissal. The Council is therefore not in a position
to give effect
to the provisions of Clause 13 of the disciplinary code and procedure
for reasons of impossibility.
[11]
In order to consider whether this argument has any merit, it is
necessary to consider the provisions of Clause 13 as a whole:
“
13. Review of Hearing
13.1 An
employee who has been disciplined in terms of the CSIR Conditions of
Service has the right to Appeal
for Review to the President and/or
any Member of the Executive Board as approved by the President or in
the case of a Member of
the Management Board to the Chairperson of
the Board against the conviction and the penalty, within 10 (ten)
working days of receipt
of notice of such penalty.
13.2 The
Appeal referred to in Sub-paragraph 13.1 above shall be noted in
writing with the Industrial Relations
Manager of the CSIR and will
clearly and concisely set forth the grounds of Appeal and whether the
verdict and the penalty, or
only the penalty, is appealed against.
13.3 The
President and/or any Member of the Executive Management Board as
approved by the President shall
request the Chairperson of the
Disciplinary Committee to furnish written reasons for the Committee’s
decision, which reasons
shall be furnished within 10 (ten) working
days from such request.
13.4 An
employee who wishes to refer any dispute arising from a decision of a
Disciplinary Committee to
the Council for Conciliation, Mediation and
Arbitration (CCMA) or to either a competent Labour Court or High
Court by invoking
the provisions of the Labour Relations Act, 1995
(Act No 66 of 1995), as amended, shall only be able to do so after
all the CSIR’s
internal remedies and/or procedures have been
exhausted.”
[12] Clause 13(1) clearly
provides for an appeal to be made to the Chairperson of the Board
where a Management Board Member is the
employee seeking to appeal a
sanction. It does not however set out how the Chairperson of the
Board shall process an appeal. The
Chairperson is not mentioned in
Clause 13.3 which sets out the
dies
for written reasons to be
sent by the Disciplinary Committee to the President and/ or any
member of the Management Board.
[13]
It is the Court’s view that it cannot be said that it was
impossible for the Council to act in terms of Clause 13. In
fact that
is precisely what the Chairperson, Professor Majozi did. He
received the appeal and wrote to the applicant regarding
the
appointment of an external chairperson to hear it. Clause 13 does not
proscribe how the Chairperson is to organise the process
of an appeal
by a Management Board Member.
[14]
The applicant received a proposal regarding an external chairperson
and was asked to: “
Kindly indicate if you are agreeable to
the external third party appointed by me to preside over your appeal,
failing which, you
are advised to exercise your right to refer a
dispute about the fairness or otherwise, of your dismissal.”
This invitation clearly indicates that a failure to agree will result
in the internal appeal process being exhausted.
[15]
The answering affidavit in this application states that given the
lengthy period that it took the applicant to reply to the
offer, and
in view of the need for speedy resolution of disputes “
Applicant
no longer has any right to enforce finalisation of the internal
appeal, that she waived her rights in this regard, and
that due to
her undue delay the Honourable Court should not come to her
assistance.”
[16] The requirements for
waiver were summarised per Kroon J in
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
[3]
as follows:
“
[81] The conclusion reached in
para [79] above is in accordance with common-law principles regarding
waiver of rights. Waiver is
first and foremost a matter of intention;
the test to determine intention to waive is objective, the alleged
intention being judged
by its outward manifestations adjudicated from
the perspective of the other party, as a reasonable person. Our
courts take cognisance
of the fact that persons do not as a rule
lightly abandon their rights. Waiver is not presumed; it must be
alleged and proved;
not only must the acts allegedly constituting the
waiver be shown to have occurred, but it must also appear clearly and
unequivocally
from those facts or otherwise that there was an
intention to waive. The onus is strictly on the party asserting
waiver; it must
be shown that the other party with full knowledge of
the right decided to abandon it, whether expressly or by conduct
plainly inconsistent
with the intention to enforce it. Waiver is a
question of fact and is difficult to establish.”
[Footnotes
omitted.]
[17]
On the common cause facts in this case, the applicant noted an appeal
against the sanction of dismissal and she did not refer
her dispute
to the Commission for Conciliation, Mediation and Arbitration (CCMA)
within 30 days of her dismissal. A referral to
the CCMA would have
been conduct indicating her waiver of the right to pursue the appeal
she had noted and conduct plainly inconsistent
with her right to
enforce it. What she did, was to unduly delay in accepting the
proposal to appoint an external chairperson to
hear the appeal. The
question is therefore whether this amounted to a tacit waiver of her
right to an internal appeal.
[18]
In
Paradyskloof
Golf Estate (Pty) Ltd v Stellenbosch Municipality
[4]
the Supreme Court of Appeal
(SCA) held that whether a contracting party's delay in exercising its
right to cancel (or resile from)
a contract amounts to a waiver of
that right depends on the reasonableness of the delay in the
circumstances. If, however, the
contract in question contains a
non-waiver clause, the issue of the reasonableness of the delay is
rendered irrelevant
[5]
.
[19]
The applicant’s contract of employment is annexed to the
answering affidavit. It specifically incorporates the Council’s
Conditions of Service. It also includes a non-waiver clause:
“
13.2 No relaxation or
indulgence which either the CSIR or the Group Executive may show to
the other, as the case may be, shall I
any way prejudice or be deemed
to be a waiver of her rights hereunder, nor shall such relaxation or
indulgence preclude or stop
the CSIR or the Group Executive, as the
case may be, from exercising its rights in terms of this agreement in
respect of any further
breach.”
[20] The waiver defence
must fail for this reason and I note that it was not pursued in the
heads of argument for the Council. An
effort was submit that the
applicant had acquiesced in not having an internal appeal. The
conduct of the applicant in the Courts
view cannot be considered as
falling within the doctrine of peremption:
”
The rule with regard to
peremption is well settled, and has been enunciated on several
occasions by this court. If the conduct of
an unsuccessful litigant
is such as to point indubitably and necessarily to the conclusion
that he does not intend to attack the
judgment, then he is held to
have acquiesced in it. But the conduct relied upon must be
unequivocal and must be inconsistent with
any intention to appeal.
And the onus of establishing that position is upon the party alleging
it.”
[6]
[21] I agree with the
submissions on behalf of the Council that there is no basis on the
papers before me to order most of the prayers
sought in the notice of
motion. However I do find that the applicant has made out a case for
an order of specific performance.
Both parties asked for costs to be
awarded and I consider that in this particular matter it is in
accordance with law and equity
to award costs to the successful
party. I therefore make the following order:
Order
1.
The First Respondent is ordered to continue internal appeal
proceedings in terms
of Clause 13 of the Disciplinary Code and
Procedure.
2.
The First Respondent is to pay the costs
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
S Sethene
Instructed by:
Mashala Komane Mesaekela Attorneys
For Respondent:
GL van der Westhuizen
Instructed by:
Macrobert Inc
[1]
Act 75 of
1997.
[2]
Act 66 of
1995 as amended.
[3]
2009
(4) SA 529 (CC).
[4]
2011 (2) SA 525
(SCA).
[5]
At oparas [24] –
[26] at 534F – 535F..
[6]
As referred
to in
South
African Revenue Service v Commission for Conciliation,
Mediation and Arbitration
(
2017
)
38 ILJ 97 (
CC
)
;
2017 (1) SA 549
(CC)
(2017 (2) BCLR 241
at para 26.