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[2018] ZALCCT 10
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Archer v Public School - Pinelands and Others (C362/17) [2018] ZALCCT 10; [2018] 8 BLLR 785 (LC); (2018) 39 ILJ 1998 (LC) (20 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
case
no: C362/17
In the
matter between
KERRY
EDWARD ARCHER
Applicant
and
THE
PUBLIC SCHOOL - PINELANDS
First Respondent
THE
SCHOOL GOVERNING BODY OF
PINELANDS
HIGH SCHOOL
Second Respondent
THE
WESTERN CAPE EDUCATION DEPARTMENT
Third Respondent
Heard: 15 March 2018
Delivered: 20 April 2018
Summary:
Whether the Applicant having been unsuccessful at the CCMA can
approach the Labour Court on the basis of the unlawful breach
of his
employment contract.
JUDGMENT
RABKIN-NAICKER J
[1]
Applicant and the first and second respondents agreed in a pre-trial
conference that certain points in limine should be heard
by way of a
separate hearing, supported to the extent necessary by oral evidence.
[2]
It was agreed during the proceedings before me that the first point
in limine relating to whether due notice was given of the
institution
of proceedings to the third respondent, be dealt with at a later
stage of the litigation.
[3]
The further points in limine in effect challenge this court’s
jurisdiction to hear the applicant’s claim. It is
common cause
that an arbitration award exists finding that the applicant’s
dismissal from his position of Business Manager
at Pinelands High
School was procedurally and substantively fair. The parties before
the CCMA were the applicant, and as respondents
the Pinelands High
School and secondly, the Governing Body of Pinelands High School. In
line with an in
limine
ruling by the CCMA, the Pinelands High School was regarded as the
employer party. Neither the
ruling, nor the Award were taken
on review and are thus binding on the parties.
[4]
In this Court the legal issues are framed by the applicant as
follows:
“
The
removal of the Applicant by the Second Respondent from the
Applicant’s place of employment was unlawful in that the Second
Respondent was not the Employer of the Applicant.
The
failure on the part of the First Respondent to re-instate the
Applicant and/or to remedy the unlawful actions of the Second
Respondent constitutes an unlawful breach of contract of employment.”
[5]
The applicant seeks reinstatement of the contract of employment,
alternatively damages, to be paid by the first and second respondent
jointly and severely.
[6]
Simply put, the applicant approached the CCMA on the basis that he
had been unfairly and unlawfully dismissed from his employment.
The
CCMA had jurisdiction to hear his dispute only in as far as
unfairness of the dismissal was concerned
[1]
.
Applicant was unsuccessful in that forum. In this Court, the
applicant pleads that his contract of employment was terminated
unlawfully as set out in his claim above.
[7]
In
James
& another v Eskom Holdings SOC Ltd & others
[2]
the LAC dealt with a matter in which the two appellants,
employees of Eskom, referred an unfair dismissal dispute to the
CCMA,
where the commissioner found that their dismissal was substantively
fair. On review, the employees relied solely on breach
of the
applicable collective agreement. They argued that, in terms of the
collective agreement, the decision of the appeal tribunal
was final
and binding and that the general manager’s decision to overturn
the appeal tribunal’s decision was invalid
and unlawful. They
therefore contended that there had been no valid dismissal and that
the commissioner consequently lacked jurisdiction
to arbitrate the
dispute. The Labour Court rejected this argument and upheld the
arbitration award. The employees appealed to the
Labour Appeal Court.
The LAC stated as follows:
“
[20]
Section 186 of the LRA defines dismissal to mean, inter alia, that an
employer has terminated a contract of employment with
or without
notice. The ordinary meaning of ‘termination’ is to bring
to an end. In this case, the respondent has through
the action of the
general manager brought the contracts of employment of the appellants
to an end. It does not matter that the
general manager did so
contrary to the collective agreement. The appellants were in the
circumstances entitled to approach the
CCMA to challenge the fairness
of the conduct of the respondent as they did.
Having
done so, it is not open to them to abandon their arbitrated referred
dispute, and claim that they had not been dismissed.
Nothing barred the appellants from approaching the CCMA for relief.
It all depended on how they pleaded their case to the CCMA.
Termination of the contracts of employment of the appellants was a
factual phenomenon which they themselves found to constitute
a
dismissal that was unfair. In Gcaba the Constitutional Court warned
that: ‘Once a litigant has chosen a particular cause
of action
and system of remedies (for example, the structures provided for by
the LRA) she or he should not be allowed to abandon
that cause as
soon as a negative decision or event is encountered.’
[7]
The applicant in this case cannot, after unsuccessfully pursuing a
case in the CCMA based on the existence of an alleged unfair
dismissal, now approach this court on the basis that the termination
of his employment contract did not constitute a dismissal
in law.
Counsel for the respondents sought to argue the jurisdictional point
as a species of res judicata. The Court
mero
moto
finds
that it does not have jurisdiction to hear this matter on the
authority above. If an employee were to be able to pursue a
new cause
of action as the applicant has sought to do, the architecture of our
employment law would be breached. In addition our
guiding principle
of speedy resolution of disputes would be undermined. I make no order
as to costs against the individual applicant.
In the result, I make the
following order:
Order
1. Applicant’s
claim is dismissed for want of jurisdiction.
________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
For
the Applicant: Applicant in person
For
Respondents: S. Kirk-Cohen SC; P. Kantor instructed by Dorrington
Jessop Attorneys
[1]
Steenkamp & others v Edcon Ltd (National
Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC)
paras 106,107,108
[2]
(2017)
38 ILJ 2269 (LAC)