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[2018] ZALCJHB 362
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Police and Prisons Civil Rights Union (POPCRU) obo Members v Minister of Justice and Correctional Services and Others (J3745/18) [2018] ZALCJHB 362 (2 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: J 3745/18
POLICE
AND PRISONS CIVIL RIGHTS UNION
(POPCRU)
ON BEHALF OF MEMBERS (LISTED
IN
ANNEXURE A TO THE NOTICE OF MOTION)
Applicant
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
NATIONAL
COMMISSIONER OF
CORRECTIONAL
SERVICES
DEPARTMENT
OF CORRECTIONAL SERVICES
THE
CITY OF TSHWANE MUNICIPALITY
PUBLIC
SERVANTS ASSOCIATION OF
SOUTH
AFRICA
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Fifth
Respondent
Heard:
25 October 2018
Delivered:
2 November 2018
Summary: Application to declare
termination of contracts of employment null and void and to restore
the contracts.
JUDGMENT
Introduction:
[1]
The
Applicant acting on behalf of 16 of its members (the employees) filed
an urgent application wherein relief was sought to the
effect that
the termination of the employees’ contracts of employment be
declared null and void and their contracts of employment
be restored.
[2]
The
application is opposed by the First, Second and Third Respondents
(collectively referred to as the employer).
Background
facts:
[3]
The
employees are stationed at the Poyntons building, the Third
Respondent’s head office. Some of the employees have entered
into fixed term contracts in terms of which they were appointed in
terms of section 9 of the Public Service Act
[1]
(PSA) and others were employed in terms of the Correctional Services
Act
[2]
(CSA). In the papers before this Court the parties did not indicate
which of the employees were appointed in terms of the PSA and
which
in terms of the CSA. It is however common cause that the employees
are appointed in terms of either the PSA or the CSA.
[4]
A
dispute arose between the employees and the employer, emanating from
various complaints regarding the alleged unsafe features
of the
Poyntons building. This led to an urgent application that was filed
in terms of the provisions of the Occupational Health
and Safety
Act
[3]
on 4 October 2018. The said application was filed under case number J
3473/18 and sought to declare the Poyntons building unsafe
for human
occupation. The application was dismissed as the Applicant had to
approach the Magistrate’s Court instead of the
Labour Court.
[5]
The
Applicant’s case is that the employer is well aware that there
are some risks involved in the occupation of the Poyntons
building,
but is of the view that the occupancy of the said building is
relatively safe as the risks are insignificant and well
mitigated by
the actions taken by the owner of the building. Since 18 September
2018, the employees present themselves at the workplace
between 08:00
and 16:00, however they remain outside the Poyntons building as they
refuse to enter into the building they regard
as unsafe.
[6]
On 19
October 2018, the employees received ultimatum letters dated 18
October 2018. The letters were titled ‘
Participation
in unlawful strike action and refusal to return to work’
and
in the letters it was recorded that pursuant to ultimata issued by
the employer on 19 September 2018 for the employees to return
to
their posts at the Poyntons building, they failed to respond to a
lawful instruction to return to their respective posts and
on 21
September 2018 the employees were invited to provide written reasons
as to why they should not be summarily dismissed for
taking part in
an unlawful strike action and for failing to adhere to a lawful
instruction to return to their posts. Despite not
making submissions
as per the employer’s invitation, the employee’s services
were not terminated as the employer indicated
as far back as 21
September 2018. No action was taken in respect of the ultimata issued
on 19 September 2018.
[7]
On 5
October 2018, the employer indicated that it would not take any
disciplinary action flowing from the urgent application launched
on 4
October 2018, but that it reserved its rights with specific reference
to section 96(2)(b) of the CSA.
[8]
On 19
October 2018, the employees were afforded one hour from the time the
ultimatum letter was communicated to them to return to
their posts
and should they fail to adhere to the instruction, they should regard
themselves as having been summarily dismissed
and they have five
working days to appeal such summary dismissal.
[9]
The
employees did not return to work and instead the Applicant’s
attorneys despatched two letters to the employer requesting
that the
ultimatum issued to the employees be retracted. It was made clear
that should there be no withdrawal of the ultimatum,
the Applicant
would approach this Court for urgent relief. It is evident from the
said letters that the Applicant recorded that
the instruction to
occupy an unsafe building is unlawful and that the intended
subsequent dismissal would also be unlawful. The
employer has not
responded to those letters.
[10]
The
Applicant consulted with counsel on 20 October 2018 and this
application was served on 22 October 2018.
Points
in limine
[11]
The
employer raised three points
in
limine.
The
first is that this Court does not have jurisdiction.
Jurisdiction
[12]
In
support of the jurisdictional challenge, the Respondents made
reference to the previous urgent application brought in terms of
the
provisions of the Occupational Health and Safety Act. The employer
further raised the fact that the Applicant’s attempts
to
utilise the Basic Conditions of Employment Act
[4]
(BCEA) when its relief should have been couched in terms of the LRA
and that this is an attempt to circumvent the jurisdictional
prerequisite that a dismissal dispute should be referred to the
bargaining council. The Department supplies essential services
and
the employees are not entitled to strike or withhold their labour
under any circumstances. The employees were issued with an
ultimatum
which they ignored and in terms of the provisions of section 96(2)(b)
of the CSA, an official who participates in industrial
action, is
subject to immediate dismissal.
[13]
Section
96(2) (a) and (b) of the CSA provide as follows:
‘
(2)
(a) Subject to the provisions of subsection (1), the relationship
between the Department as employer and every correctional
official in
the service of the Department is regulated by the provisions of the
Labour Relations Act and the Public Service Act.
(b)
Notwithstanding item 6 (2) of Schedule 8 to the Labour Relations Act,
where a service of the Department is designated as an
essential
service in terms of section 71 of that Act, and an official who
provides such service participates in a strike that does
not comply
with the provisions of chapter IV of that Act and the strike
constitutes a threat to the safety of inmates, officials
or the
public, the official in question may be summarily dismissed, if such
dismissal is substantively fair, as contemplated in
item 6 (1) of
that Schedule.’
[14]
The
Applicant disputed that section 96(2) of the CSA applies as it
provides for summary dismissal in the event that an official
who
provides an essential service participates in a strike action that
does not comply with the provisions of chapter IV of the
Labour
Relations Act
[5]
(LRA). The Applicant’s case is that the employees do not render
an essential service. It is furthermore disputed that the
employees
are participating in any strike action as they present themselves at
the workplace between 08:00 and 16:00, but remain
outside the
Poyntons building as they refuse to enter into the building.
[15]
In my
view these averments and issues are not material to the questions
this Court has to decide, for reasons fully dealt with
infra.
[16]
There
is no merit in the jurisdictional challenge. Firstly, this
application is clearly not similar to the previous application
brought in terms of the Occupational Health and Safety Act and any
reference to that application is
in
casu,
irrelevant
and has no bearing on the question whether the Court has jurisdiction
to adjudicate this dispute.
[17]
Secondly,
in considering whether this Court has jurisdiction, the pleadings
placed before Court have to be evaluated. This is based
on
Gcaba
v Minister for Safety and Security and Others
[6]
where
it was held that:
‘
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. If Mr Gcaba’s case
were heard by the High Court, he would have failed for not
being able
to make out a case for the relief he sought, namely review of an
administrative decision. In the event of the court’s
jurisdiction being challenged at the outset (in limine), the
applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant has chosen to
invoke the court’s competence. While the pleadings –
including in motion proceedings, not only the formal terminology of
the notice of motion, but also the content of the supporting
affidavits - must be interpreted to establish what the legal
basis of the applicant’s claim is, it is not for the court
to
say that the facts asserted by the applicant would also sustain
another claim, cognizable only in another court. If however
the
pleadings, properly interpreted, establish that the applicant is
asserting a claim under the LRA, one that is to be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction.’
[18]
Having
regard to the Applicant’s case before this Court and the
affidavits filed in support thereof, it is evident that the
Applicant
is not challenging the fairness of the employees’ dismissal,
but what it is challenging is the validity and lawfulness
of the
termination, relying on the contractual terms and the provisions of
section 77 of the BCEA.
[19]
This
Court’s jurisdiction is to be determined by the pleadings and
in
casu,
the
Applicant made it clear that the application is brought in terms of
the provisions of section 77 of the BCEA.
[20]
This
Court has jurisdiction to adjudicate a dispute in terms of section 77
of the BCEA and the first point
in
limine
has
no merit
Urgency
[21]
The
Respondents submitted that the matter is not urgent. I do not intend
to set out in detail the attack on urgency as I am of the
view that
the application should be heard on an urgent basis.
Premature application
[22]
The
employer’s case is that the notices of termination of service
were served on the employees on 19 October 2018 and in the
said
notices, they were afforded a period of five days to lodge an appeal
against their dismissal. The administrative processes
of the employer
provide that an employee who has been dismissed is effectively not
removed from employment until the five-day period
allowed for the
appeal has expired.
[23]
This
application was served before the expiry of the five-day period,
wherefore the application is premature. This point
in
limine
is
misplaced and disconnected from the relief sought by the Applicant.
The Applicant seeks an order declaring the termination of
the
employees’ contracts of employment null and void and for the
said contracts to be restored.
[24]
It is
evident that the employees’ contracts of employment were
terminated with effect from 19 October 2018 and allowing a
five-day
period within which an appeal may be filed, does not detract from the
fact that they were dismissed. Even where the employees
would file an
appeal within five days, the filing of an appeal in itself does not
change the fact that the employees have been
dismissed.
[25]
There
is no merit in this point
in
limine.
The
relief sought
[26]
I had
great difficulty with the papers filed by the parties in this matter.
In respect of the Applicant, this Court had to undertake
a search and
find exercise to find the gist of the employees’ case as the
Applicant’s papers made reference to all
possibly relevant
issues, even those that were not material for the adjudication of
this application and the relief sought. The
opposing affidavit on the
other hand was bereft of any meaningful factual detail and the
Respondents provided no or very little
assistance to this Court in
the task of determining the merits of the employees’ case.
[27]
Be
that as it may, the Applicant places reliance on clause 3.1.2 of the
contract of employment which provides for termination of
employment
in accordance with section 17 of the PSA, read with the CSA and
relevant collective agreements on misconduct and incapacity.
[28]
Section
17(1) of the PSA provides for the termination of employment in
accordance with the LRA.
[29]
The
Applicant’s reliance on clause 3.3 of the contract of
employment to the extent that the employer breached the terms of
the
contract by terminating the contract without notice as provided for
in section 37 of the BCEA is misplaced as the said clause
provides
for termination after consultation and upon agreement, which is not
the case where a contract is terminated for reasons
related to
misconduct.
[30]
In
essence the Applicant’s case is premised on the provisions of
section 77 of the BCEA. The employees claim that the summary
termination of their contracts of employment is unlawful as no
procedure was followed as contemplated in their contracts of
employment
and they seek specific performance.
[31]
The
Applicant’s case is that the disciplinary code and procedure
(the Code) as contained in Resolution 1 of 2006 has been
incorporated
as a term of the employees’ contract of employment. Clause
4.1.4 of the contract stipulates that the employee
shall comply with
the prescribed Code.
[32]
The
Code prescribes proper procedures for the termination of employment,
which the employer flagrantly disregarded prior to the
employees’
dismissal. Instead of following a due process, the employees were
afforded the right to appeal, as provided for
in clause 8 of the
Code.
[33]
The
Applicant’s case is that clause 8.2 of the Code specifically
provides for an employee to, within five working days of
receipt of
the notice of the final outcome of a hearing or other disciplinary
procedure, submit the appeal form. It is evident
that the appeal has
to be preceded by a hearing or other disciplinary procedures, which
are provided for in clauses 5, 6 and 7
of the Code.
[34]
The
employer’s answer to this is that the employees are not
entitled to a contractual remedy in circumstances where they refuse
to perform their contractual duties and unless they immediately
return to work, they cannot approach the court on the basis of
contract.
[35]
This
answer is without merit and would have bizarre results if it were to
be accepted
in
casu
.
This is not a case where there is a reciprocal obligation such as
when employees claim for the payment of remuneration where they
have
not rendered their services. The entitlement to a contractual remedy
such as payment of remuneration goes hand in hand with
an employee’s
obligation to perform his or her duties and the reciprocal nature of
the obligation is obvious.
Entitlement to remuneration would only arise in circumstances where
the employees tendered and provided their services in accordance
with
their contracts of employment. It is common cause that the employer
is applying the ‘no work no pay’ principle
and there is
nothing before this Court to challenge the said dispensation.
[36]
This
is a case where the employer terminated the employees’ services
and there is nothing reciprocal in that.
The
nature of the relief sought by the employees is not dependent on them
rendering their services and to deprive them of contractual
remedies
unless they immediately return to work, would, in a case like this,
be absurd.
Analysis
[37]
It
is evident from the papers placed before this Court that the
following facts are undisputed:
37.1. The employees have valid and
existing contracts of employment with the employer;
37.2. Some employees concluded
contracts in terms of the PSA and others in terms of the CSA;
37.3. A fixed term contract entered
into by some of the employees contains a clause 3.1.2 which provides
for the termination of
employment by way of discharge in terms of
section 17 of the PSA read with the CSA and in accordance with the
relevant collective
agreements on misconduct and incapacity;
37.4. The Code forms part of the
employees’ contracts of employment and it prescribes procedures
to be followed in the event
of disciplining and dismissing an
employee and there ought to have been a fair process in terminating
the contracts;
37.5. The employer disregarded the
prescribed procedures when terminating the employees’ contracts
of employment;
37.6. The employer afforded the
employees an opportunity to file an appeal within five days, as
contemplated in clause 8 of the
Code, thus the employer is selective
in observation of and compliance with the Code. The right to appeal
is afforded after the
dismissal of the employees has taken place;
[38]
The
Applicant’s case is that the employer’s purported
termination of the employees’ contracts of employment is
in
breach of their employment contracts and it is unlawful. The terms of
the contracts of employment incorporated the disciplinary
code and
procedure and the employer embarked on a process to terminate their
services not provided for in the Code.
[39]
Clauses
5 – 7 of the Code provide specifically for disciplinary action
procedures and hearings and the manner in which such
hearings should
be conducted. The gist of the Applicant’s case is that the
manner in which the employees’ services
were terminated, is not
provided for in the Code and what is provided for in the Code, was
ignored by the employer when it terminated
their contracts. The
employees were deprived of their rights, as per the terms of the
employment contracts and effectively the
terms of their contracts of
employment were breached. The employees’ contracts provide for
a disciplinary process or hearing
prior to dismissal and the employer
has the obligation to follow the fair and proper procedure set out in
the Code.
[40]
The
employer does not deny that the Code has been incorporated into the
contract of employment and that the employees are subject
to the
Code, nor is it denied that they have the right to a disciplinary
process as envisaged by the Code. The employer’s
case however,
as set out in the opposing affidavit, is that the termination of the
employees’ contracts of employment took
place in accordance
with legislation, with specific reference to section 17(3) of the PSA
and section 37 of the CSA, which provide
for the termination of
service of an employee who was absent without permission for a period
of 30 days.
[41]
The
employer’s reference to and reliance upon section 17(3) of the
PSA is irrelevant and misdirected for three reasons. Firstly,
section
17(3)(a)(i) specifically excludes ‘a member of the services’,
which is defined as a member of the Department
of Correctional
Services appointed in terms of the CSA. Thus insofar as the employees
(or some of them) have been appointed in
terms of the CSA, section
17(3)(a)(i) would not be applicable to them.
[42]
Secondly,
the employer did not advance section 17(3)(a)(i) of the PSA as the
reason for the employees’ dismissal.
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and others
[7]
the
Labour Appeal Court (LAC) held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal...’
[43]
Thirdly,
a discharge in terms of the provisions of section 17(3)(a)(i) of the
PSA constitutes a termination of employment by operation
of law and
therefore no dismissal exists that could be challenged. The ultimatum
letter made it clear that the employees are dismissed
for reasons
relating to partaking in an unlawful strike and failure to adhere to
a lawful instruction. Therefore, on the employer’s
own version,
the employees were dismissed for reasons related to misconduct.
[44]
Reference
to section 37 of the CSA is equally misdirected. Section 37 of the
CSA provides that a correctional official who absents
himself or
herself for 30 consecutive calendar days without permission or
without notifying the National Commissioner shall be
summarily
dismissed but before dismissing such an employee, the National
Commissioner must endeavour to establish the whereabouts
of the
official.
In
casu,
the
employer is well aware of the employees’ whereabouts and it is
for that reason that the employer did not invoke the provisions
of
section 37 of the CSA, but instead issued an ultimatum for reasons
related to participation in an unlawful strike and failure
to adhere
to a lawful instruction.
[45]
To
the extent that the employer persists with the view that it is
entitled to terminate the employees’ contracts of employment
because of their refusal to return to work, it is evident that the
employer failed to grasp the Applicant’s case and the
relief
sought. The employer may be entitled to terminate the services of an
employee who participates in unlawful strike action
or who refuses to
obey a lawful instruction, the employer is however not entitled to do
so without following a process that the
parties contractually agreed
to.
[46]
I
cannot but find that the termination of the employees’
contracts of employment is in breach of the terms of their contracts
and
in the result the termination of the employees’ contracts is
void
ab
initio.
[47]
The
Applicant seeks specific performance of the employees’
contracts and seeks to enforce their contractual right to a
disciplinary
process in accordance with the Code before there could
be any decision taken on the termination of their services.
[48]
In
essence the Applicant seeks an order restoring their contracts of
employment in order for a disciplinary process to be followed
in
respect of the allegations of misconduct levelled against them.
[49]
The
employer submitted that the Applicant has various options if it wants
to dispute the lawfulness of the termination of the employees’
contracts and that approaching this Court is not one of the available
options. The employer has not indicated what the various
options are.
The question of relief has been considered in
Ngubeni
v The National Youth Development Agency and Another
[8]
where
the Court
has
held that:
‘
Insofar
as the remaining requirements relevant to the relief sought are
concerned, there is no alternative remedy that is adequate
in the
circumstances. Ngubeni has no right to pursue a contractual claim in
the CCMA, and the law does not oblige him to have recourse
only to
any remedies that he might have under the LRA. Equally, he is fully
entitled to seek specific performance of his contract,
and is not
obliged to cancel the agreement and claim damages. The balance of
convenience dictates that the order sought should
be granted - there
is little inconvenience to the NYDA should it continue with and
complete the disciplinary hearing; the result
may well be the same.
For Ngubeni, the effect of the NYDA's decision to terminate his
employment at this stage is to deprive him
of his employment and
livelihood. Similarly, I am satisfied that Ngubeni will suffer
irreparable harm should the application not
be granted.’
[50]
Whether
the employees have a valid reason not to enter the building to report
for duty
,
is not an issue for this Court to decide. It can only be decided
after oral evidence has been adduced and would be best decided
by the
chairperson of the disciplinary enquiry.
Costs
[51]
This
Court has a broad discretion to make orders for costs according to
the requirements of the law and fairness. Considering that
the
parties are in a collective bargaining relationship, the interest of
justice and fairness will, at this point of the litigation,
be best
served by making no order as to costs.
[52]
In
the premises I make the following order:
Order
1.
The
termination of the employees’ contracts of employment is
declared null and void;
2.
The
termination of the employees’ contracts of employment is set
aside and the employees contracts of employment are restored;
3.
There
is no order as to costs.
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate E Mokutu with Advocate
D M Madiba
Instructed
by: Majang
Inc Attorneys
For the First, Second and
Third Respondents: Advocate
T P Kruger with advocate T Carstens
Instructed
by: State
Attorney
[1]
Act 105 of 1994 as
amended.
[2]
Act 111 of 1998.
[3]
Act 85 of 1993.
[4]
Act 75 of 1997.
[5]
Act 66 of 1995 as
amended.
[6]
(2009) 30 ILJ 2623
(CC) at para 75.
[7]
(2008) 29 ILJ
964 (LAC) at para 32.
[8]
(2014) 35 ILJ 1356
(LC) at para 21.