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[2018] ZALCJHB 311
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Magoshi v Gauteng Department of Education (JR864/15) [2018] ZALCJHB 311; (2019) 40 ILJ 168 (LC) (2 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of
interest to other Judges
Case
No: JR 864/15
In
the matter between:
MAHLASE
ISAIAH
MAGOSHI
Applicant
and
GAUTENG
DEPARTMENT OF
EDUCATION
First
Respondent
COMMISSIONER
THANDO NDLEBE
N.O
Second
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Third
Respondent
T
E
NJOLI
Fourth
Respondent
Heard:
14 March 2018
Delivered:
2 October 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
[1]
The applicant (Mahlase) is a former Principal at Etwatwa High School.
In January 2014, he had responded to an advertisement
issued by
the first respondent (Department) for the position of Principal at
Tsakane Ext 8 Secondary School. Mahlase and other
candidates were
shortlisted and interviewed. The fourth respondent (Njoli), was
eventually the successful candidate.
[2]
It was common cause that Mahlase resigned from his position within
the Department on 30 April 2014. The interviews
for the
position took place on 20 August 2014, and the decision to
recommend Njoli was taken in the same month. Aggrieved
at his
non-appointment, Mahlase referred a dispute to the third respondent
(ELRC) on 10 December 2014, classifying it
as
‘Appointment/Promotion’. A certificate of non-resolution
was issued on 5 February 2015, characterising
the dispute
as ‘unfair labour practice’ and ‘appointments and
promotion’. The dispute came before the second
respondent
(Commissioner) for arbitration on 18 March 2015, who had
issued his arbitration award on 5 April 2015
dismissing the
referral.
[3]
Mahlase seeks to have that arbitration award reviewed and set aside
on a variety of grounds. It was common cause that the record
of
arbitration proceedings was filed out of time. I had granted
condonation in that regard.
[4]
Prior to dealing with the merits of the review application however,
and to the extent that I may reach that point, it is significant
to
note that the Commissioner had in the award, and after having
disposed of the merits commented that;
“
[32] In the matter
of
Department of Justice v CCMA (2004)
25 ILJ 248 (LAC)
it was held that
“external candidates who apply for a higher position apply for
appointment, whereas internal candidates
who apply for a higher
position apply for promotion. An applicant for a post with his own
employer is entitled to a promotional
dispute, whereas a failure to
appoint an external candidate does not constitute a dispute
concerning promotion, but a dispute concerning
appointment”.
The Applicant in his evidence in chief testified that he was not an
employee of the Respondent at the time
he applied for the position in
dispute. Furthermore, in the matter of
Phera
v ELRC & Others (JR568/2009) [2009] ZALC
it was held that “an educator who does not have an existing
employment relationship with the particular HOD of Department
where
is applying for a higher position has two remedies;
- He may approach the
High Court in a review application in terms of the Promotion of
Administration of Justice Act; or
- Provided he is already
an Educator in public education who is protected by the ELRC
Constitution, he may refer a dispute concerning
the interpretation
and application of ELRC Collective Agreement 5 of 1998 for
arbitration, if he can show that there was material
non-compliance
with this resolution during the selection process””
[1]
(Sic)
[5]
The Commissioner’s award
is clearly not a model of clarity. Despite raising the issue as
indicated above, which by all accounts
was important for the purposes
of determining whether the ELRC had jurisdiction to determine the
dispute or not, it is not clear
from the award whether the
Commissioner dismissed the referral on that ground or whether as
appears from the analysis, it was dismissed
on the merits. Be that as
it may, it is trite that the ELRC, like the CCMA, cannot decide its
own jurisdiction. In considering
whether the ELRC had jurisdiction,
this Court must decide the matter afresh on review and it is now
settled that the
Sidumo
test
does not apply
[2]
.
[6]
If it is accepted for now that
the issue before the Commissioner pertained to an alleged unfair
labour practice arising out of the
non-appointment of Mahlase,
obviously there are hurdles. In his opening address at the
arbitration proceedings, Mr Mathibe, representing
Mahlase, had
submitted that what was being challenged was the non-appointment of
the latter on the grounds of it being procedurally
and substantively
unfair
[3]
.
The issue is therefore whether objectively speaking, the facts which
would give the ELRC jurisdiction to entertain the dispute
existed. If
such facts did not exist, the ELRC had no jurisdiction
[4]
.
In a nutshell, the ELRC does not have a general unfairness
jurisdiction, and a party referring any dispute in terms of the
provisions
of the Labour Relations Act (LRA)
[5]
must demonstrate that the dispute is capable of being determined.
[7]
In its answering affidavit in
respect of the review proceedings, the Department contended that
because the dispute was referred
to the ELRC subsequent to Mahlase’s
resignation, it ought to have been dismissed for want of
jurisdiction
[6]
.
Mahlase did not file a replying affidavit and chose to stand by his
founding affidavit, and thus failed to address this important
issue.
[8]
The starting point is that
section 185 of the LRA provides that
every
employee
has the right
not to be unfairly dismissed or be subjected to unfair labour
practice. Similarly, and flowing from the provisions
of section
186(2) of the LRA
[7]
,
an unfair labour practice means any unfair conduct or omission that
arises between an
employer
and an employee
(My
emphasis). These provisions obviously derive from the constitutional
right to fair labour practices guaranteed to everyone
under section
23 of the Constitution of the Republic. Significant with the
provisions of section 186(2) of the LRA however is that
no reference
is made to ‘a failure to appoint’.
[9]
Over the years, there have been
divergent views as to whether it is permissible, once the employment
relationship is terminated,
for an ex-employee to refer a dispute to
any forum in order to remedy a wrong or unfairness perpetrated by the
ex-employer during
the period of employment. In
Sithole
v Nogwaza NO & others
[8]
,
it was held that the remedies provided in the LRA in respect of
unfair labour practice disputes are available only for disputes
which
arise between employers and employees, in the sense that there
existed an employment relationship at the time that the dispute
is
referred. This approach, as further supported by the authorities
referred to by the Commissioner in the award, effectively closed
the
door on ex-employees who sought to claim relief in respect of any
unfairness or wrong committed during the tenure of the employment
relationship.
[10]
Other approaches took a
different view, being that
the
termination of an employment relationship was not a bar to an
aggrieved party seeking to refer a dispute to the appropriate
forum
to remedy a wrong or unfairness perpetrated during the period of
employment
[9]
.
In
Malope v Crest
Chemicals (Pty) Ltd
[10]
,
Van Niekerk J dealing with
a similar conundrum held that;
“
[5]
The definition of employee contained in the EEA is similar to that
contained in the Labour Relations Act. The definition expressly
excludes independent contractors, and refers to persons who work for
another person or for the state and who receives, or who is
entitled
to receive, any remuneration or any other person who in any manner
assists in the carrying on conducting the business
of an employer. It
may well be that in a literal sense, a person whose employment is
terminated on account of retirement is not
a person who continues to
work and who receives or remains entitled to receive remuneration.
[6]
A literal interpretation of the definition, is contended for by the
respondent, is at variance with an interpretation that promotes
constitutional values and in particular, the right to equality in
employment and the right to fair labour practices (see, for example
Wyeth SA (Pty) Ltd v Mangele
[2003] 7 BLLR 734
(LAC)). It is
not in dispute that the applicant was an employee during the period
to which his equal pay claim relates. The fact
that he was no longer
an employee at the time the claim was referred, in my view, is not
fatal. What matters is that he was employed
by the respondent for the
period during which he contends that other employees, similarly
situated, were paid a premium solely
on account of their race. The
provisions of s 10 of the EEA sustain this view. What that section
provides is that a party to dispute
concerning chapter 6 may refer
the dispute within six months after the act or omission that
allegedly constitutes unfair discrimination.
As I understand the
applicant’s claim, it is one that contemplates an act of
ongoing discrimination that terminated only
on the date of his
retirement. I fail to appreciate on what basis the definition of
‘employee’ in the EEA precludes
him from referring a
claim in which he exercises the right under s 6, provided of course
that the claim is made within the applicable
time limit or any late
referral is condoned.”
[11]
The Constitutional Court dealt
with a similar issue in
Pretorius
and Another v Transport Pension Fund and Another
[11]
,
and held that;
“
[46]
The third cause of action pleaded as flowing from the 1989 promise
was that the failure to pay constituted an unfair labour
practice in
breach of section 23(1) of the Constitution. The High Court upheld
the exception to this leg of the respondents application
on the
ground that it must be pleaded that there was and is an employer
employee relationship between the applicants and the respondents
and
that they failed to do so.
[47]
That appears to be unnecessarily restrictive. The section
refers to “everyone” having the right and its purpose
is
to protect persons from unfair labour practices that originated in an
employer-employee relationship. Labour law jurisprudence
under
the Labour Relations Act (LRA) recognises that unfair labour
practices under the Act may extend beyond the termination of
employment.
[48]
Contemporary labour trends highlight the need to take a broad view of
fair labour practice rights in section 23(1). Fewer and
fewer people
are in formal employment; fewer of those in formal employment have
union backing and protection. More and more
people find
themselves in the
[12]
“twilight
zone” of employment as supposed “independent contractors”
in time-based employment subject to
faceless multinational companies
who may operate from a web presence. In short, the LRA tabulated the
fair labour practice rights
of only those enjoying the benefit of
formal employment – but not otherwise. Though the facts of this
case do not involve
these considerations, they provide a compelling
basis not to restrict the protection of section 23 to only those who
have contracts
of employment.”
(Citations
omitted)
[12]
To the extent that the decisions in
Velinov
,
Malope
and
Pretorius
confirm that on the less restrictive interpretation
of the definition of ‘employees’, and the extension of
the protections
under section 23 of the Constitution, ex-employees
are not barred from referring disputes, it is my view that this
cannot be read
to be open
sesame
for ex-employees to
willy-nilly refer disputes. Implicit in these decisions and as can
also be gleaned from the facts of those
cases is that there is a
qualification. Thus, the common trend in those cases was that the
alleged wrong or unfairness complained
of, took place
during
the course of employment and
before
termination of that
employment.
[13]
By way of illustration, in
Velinov
,
the refusal to appoint him to the vacant position of chair in
computer science, had followed upon a process of recruitment and
selection, prior to his resignation. He had resigned as a consequence
of a refusal to promote him. As the Court held, while it
was true
that the it found that the Commission lacked jurisdiction to
entertain disputes concerning alleged unfair conduct by an
employer
committed after termination of the employment relationship, in that
case the employment relationship did not terminate
until the end of
the notice period on 30 June 2004, and Velinov remained an
employee until that date, and was accordingly
entitled to the
protection against unfair labour practices contained in Chapter VIII
of the LRA
[13]
.
[14]
In
Malope
,
the
claim was brought under s 6 of the Employment
Equity Act (EEA) at the time he had retired from the respondent’s
employ.
The
claim was quantified on the basis of an income differential that
Malope contended had existed between him and his comparators
as at
the date of his retirement, extrapolated over the 42 years of his
employment. Part of the Court’s rationale when coming
to its
conclusion was that it was not in dispute that Malope was an employee
during the period to which his equal pay claim related,
and he was
employed by the respondent for the period during which he contends
that other employees, similarly situated, were paid
a premium solely
on account of their race.
[15]
In
Pretorius
, the Constitutional Court in specifically dealing
with a claim related to an unfair labour practice, was confronted
with a promise
made to the employees in 1989 that the new Transnet
Pension Fund would pay them the same pension benefits under the new
management
of those funds as they did under the then statutory state
institution that employed them until then, namely the South African
Transport
Services (SATS) and its two pension funds (old pension
funds). The Court appreciated that Labour law jurisprudence under the
LRA
recognised that unfair labour practices under the Act may extend
beyond the termination of employment. It nonetheless held that
the
constitutional right to fair labour practices under section 23
referred to “everyone” having the right and its
purpose
was to protect persons from
unfair labour practices that
originated in an employer-employee relationship.
On the facts of
that case however, the Court held that these provided a compelling
basis not to restrict the protection of section
23 to only those
employees who had contracts of employment.
[16]
In this case, the circumstances are quite distinguishable from those
of the three above mentioned authorities. These facts
do not indicate
that the alleged wrong or unfairness took place during the tenure or
before termination of the employment relationship
.
The post in
contention was advertised in January 2014. When Mahlase
submitted his application, he was still employed by the
Department.
In April 2014, he had resigned from his position. The process of
interviews and the appointment of the successful candidate
took place
in August 2014, long after the applicant had resigned. Thus,
even if Mahlase was entitled to pursue any claim of
unfairness,
subsequent to his resignation, the impugned process of interviews and
the decision to select and appoint Njoli, took
place at the time when
Mahlase was no longer an employee.
[17]
Even if it might be argued that that Mahlase had applied for the
position when he was still an employee, this in my view is
of no
consequence. The submission of an application by an employee in
response to an advertisement can hardly be construed as a
right
emanating from the employment relationship. Any rights to fair
treatment in a selection process only arise once that process
commences. Thus, central to any enquiry in this regard is the timing
or origin of the impugned process or decision. At the time
of
Mahlase’s employment or resignation, there was no process
embarked upon or decision taken by the Department pertaining
to his
application for the post, which process can conceivably be deemed to
have triggered any allegation of unfairness.
[18]
Other than the above, there is
a further problem in that Mahlase, for the purposes of these
proceedings, appreciated that he could
only challenge his
non-appointment. As can be extrapolated from
Department
of Justice vs CCMA & Others
[14]
,
where an existing employee
responds to an advertisement by his or her own employer, and is
successful, this would constitutes a
promotion of that employee. If
however unsuccessful, that employee is at liberty to refer an unfair
labour practice dispute related
to failure to promote, in accordance
with the provisions of section 191(5)(a)(iv) of the LRA. Where
however external candidates
responded to the advertisement and were
unsuccessful, their remedies lie in the provisions of section 6 of
the Employment Equity
Act and those of section 5 of the LRA (where
applicable)
[15]
.
[19]
In this case, it follows that even on a less restrictive definition
of an ‘
employee’
or on the extension of a
protection under section 23 of the Constitution, the provisions of
section 186(2)(a) of the LRA, or those
of the Collective Agreement
(ELRC Resolution 2 of 2005: Recruitment and Placement of Educators
(upon which the claim of unfairness
was premised)), could not
have been available to Mahlase. In the end, no objective facts
existed to give the ELRC jurisdiction
to entertain the dispute. I
have further had regard to the requirements of law and fairness in
regards to the issue of costs, and
hold the view that a cost order is
not warranted in this case.
[20]
Accordingly, the following order is made;
Order:
1. The arbitration award of the Second
Respondent is substituted with an order that the third respondent
(ELRC) lacked the requisite
jurisdiction to determine the dispute
between the applicant and the first respondent.
2. There is no order as to costs
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant: S Freese
Instructed
by: Mathibe Thabang Attorneys
For
the 3
rd
Respondent: A Mofokeng
Instructed
by: State Attorney
[1]
At page 46
of the Pleadings
[2]
S
A
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) paragraphs [39] – [41]
[3]
Line 8 –
13 of the transcribed record at page 112
[4]
SA Rugby
Players Association
ibid
[5]
Act 66 of 1995 (as amended)
[6]
Paragraph
30 of the Answering Affidavit at page 291 of the Pleadings
[7]
Section
186(2)(a) of the LRA provides that:
(2) Unfair labour practice‘
means any unfair act or omission that arises between an employer and
an employee involving—
(a) unfair conduct by the employer
relating to the promotion, demotion, probation (excluding disputes
about dismissals for a reason
relating to probation) or training of
an employee or relating to the provision of benefits to an employee
[8]
(1999) 20 ILJ 2710 (LC) at paras [44] to [45], where it was held
that;
“
The applicant attempted to
argue that it qualified as a residual unfair labour practice in
terms of schedule 7 item 2 (1) (b)
because it related to a benefit.
I do not accept this argument for two reasons.
Firstly, the remedies available in
schedule 7 item 3 relative to the residual unfair labour practice
listed in item 2(1), with
the exception of item 2(1)(d), are
available only for disputes which arise between employers and
employees, that is where there
is an existing employment
relationship at the time the dispute is referred to the Commission…”
[9]
See
MEC
for Tourism, Environmental & Economic Affairs, Free State v
Nondumo & Others
[2005]
10 BLLR 974
(LC);
NS
v South African Mutual Life Assurance Society Ltd t/a Old Mutual &
Others
[2001] 8 BLLR 935
(LC); See also
Velinov v
University of KwaZulu-Natal and Others
[2006] 6 BLLR 607
(LC) where it was held that;
“
[15]
I now turn to consider the second point
in limine
which
is to the effect that because Professor Velinov resigned, he could
not avail himself of the unfair labour practice
provisions contained
in section 185. In this regard it must be borne in mind that after
Professor Velinov’s resignation
was accepted, he referred a
dispute in terms of section 191 to the Commission which he
characterised as an unfair labour practice.
This dispute concerned
his non-appointment to the vacant positions, the very reason he
resigned from his employment. It was submitted
on behalf of the
University that although Professor Velinov’s resignation only
became effective at the end of June 2004,
he could nonetheless not
avail himself of the provisions prohibiting unfair labour practices.
It was submitted that these provisions
are only intended for the
benefit of employees who are engaged in on-going relationships with
employers. In support of this contention
I was referred to
Sithole
v Nogwaza N.O. & Others
[1999] 12 BLLR 1348
(LC),
specifically at paragraphs 44 and 45.
[16]
I do not accept that an employee whose employment has been
terminated either by resignation or otherwise, but who continues
to
work out his or her notice period, does not enjoy the protection of
the provisions of the LRA and particularly the unfair
labour
practice provisions contained in Chapter VIII. This would not only
be contrary to section 186(2) which, in defining an “
unfair
labour practice”
, does not distinguish between different
categories of employees but it is also contrary to the definition
of “
employee”
in section 213. It is
also contrary to the principle that despite termination of
employment, employees have rights in the
wider “ongoing
employment relationship” (see
National Automobile &
Allied Workers’ Union v Borg-Warner SA (Pty) Ltd
1994(3)
SA 15 (A) at 25 E – I)”
[10]
(JS286/15) [2017] ZALCJHB 181 (20 February 2017)
[11]
[2008] ZALC 24
;
[2018] 7 BLLR 633
(CC);
2018 (7) BCLR 838
(CC); (2018) 39 ILJ 1937
(CC)
[12]
Supra
fn
10
[13]
At para 17
[14]
(2004) 25 ILJ 248 (LAC)
[15]
At para 58