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[2019] ZALCJHB 95
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Ndwandwe v South African Transport and Allied Workers Union (SATAWU) (JS226-18) [2019] ZALCJHB 95 (10 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS 226-18
Not Reportable
In
the matter between:
GIFT
SANDILE NDWANDWE
Applicant
And
SOUTH
AFRICAN TRANSPORT AND ALLIED
WORKERS
UNION (SATAWU)
Respondent
Heard:
30 October 2018
Delivered:
10 May 2019
JUDGMENT
WHITCHER
J
[1]
This is an application for default judgment against the respondent.
The applicant
contends that the respondent unlawfully terminated his
contract of employment, and, consequently, he is entitled to
contractual
damages.
[2]
The salient facts as presented in his statement of claim and
application for a default
judgment, are as follows.
[3]
The applicant commenced his employment with the respondent in 2011 as
a messenger.
[4]
In 2015, at the respondent’s Gauteng Provincial Congress, he
was elected as
the Provincial Secretary for the province of Gauteng.
[5]
He was accordingly both an employee and an elected office bearer of
the respondent
at the time of his dismissal.
[6]
Clause 42 of the respondent’s constitution provides that any
member, shopsteward,
office-bearer or elected official may be
disciplined by the union for acting contrary to the interests of the
union and its members
or for any other act of misconduct.
[7]
The clause provides for the establishment of disciplinary committees
which are enjoined
to follow the disciplinary procedure set out in
the clause. Where the person concerned is found guilty of misconduct,
the disciplinary
committee has the power to remove that person from
office, expel the person from the union, dismiss the person from his
employment
in the union or impose any other appropriate penalty.
[8]
Notably, the clause provides a right of appeal to the CEC or any
other body that the
CEC appoints to hear the appeal against any
adverse disciplinary decision/action.
[9]
In October 2017, the applicant was briefly detained by the Department
of Home Affairs, following
which the Department informed the
respondent that it had determined that the applicant was a Zimbabwean
and had fraudulently obtained
his South African identity document.
[10]
In December 2017, the applicant’s attorney informed the
respondent that they had in terms
of section 8 of the Immigration Act
lodged an appeal with the Minister against the decision of the
Director-General of the Department
of Home Affairs. The applicant’s
attorney advised the respondent that the lodgement of an appeal
automatically suspends the
decision appealed against.
[11]
On 9 January 2018, the applicant was summonsed to a meeting by a Task
Team established by the
CEC. They asked him to explain “what
was happening” in relation to his issue with the Department of
Home Affairs. He
told them that he was awaiting the outcome of the
appeal his attorney had lodged with the Minister.
[12]
The Task Team asked the applicant for proof that he had lodged such
an appeal and for a copy
of the representations he had made to the
Minister. He gave them a covering letter bearing a stamp as evidence
that he had lodged
an appeal. He refused to give them a copy of the
representations made to the Minster, because, in his view, they were
private and
he feared they would end up on social media. In response,
the Task Team took the view that he was uncooperative and withholding
important information from them.
[13]
The applicant referred the Task Team to the minutes of a CEC meeting
held on 17 November 2017.
In his address to the CEC, the President of
the union made statements to the effect that the issue between the
applicant and the
DHA was not an organisational matter, the
applicant’s matter must be discussed in the CEC and the
applicant “will”
remain in his position until the next
congress.
[14]
The applicant’s claim that this constituted a decision by the
CEC is not borne out by the
minutes.
[15]
On 10 January 2018, the applicant was again arrested at work by the
DHA. He was released a few
hours later after they confirmed that he
was still awaiting the decision of the Minister.
[16]
On his return to work on 11 January 2018, the applicant was served
with a letter of dismissal.
According to the letter, the Task Team
had discovered that the applicant’s appeal had been dismissed
and determined he be
dismissed with immediate effect.
[17]
The applicant contends that his dismissal was
unlawful because, he submits, he did not misconduct in any
manner
contemplated by the constitution and he was not granted a
pre-dismissal hearing contemplated by the constitution.
[
18]
In support of the above contention, applicant’s counsel, at the
hearing of this matter,
submitted that the
constitution
formed part of the applicant’s contract of employment.
[19]
The applicant’s claim falls to be dismissed on the following
grounds.
[20]
If the
constitution
formed part of the applicant’s
employment contract, this would mean the constitution is not a
separate amendable document
and it would not be permissible for the
respondent to amend it without the applicant’s consent; which
clearly cannot be the
case.
[21]
The applicant failed to plead and demonstrate at the hearing of this
matter that the disciplinary
code and procedure in the union’s
constitution was incorporated into his contract of employment.
[22]
The applicant failed to plead and demonstrate that his contract of
employment expressly provided
for the rights set out in the
disciplinary code and procedure.
[1]
[23]
The applicant failed to plead and demonstrate surrounding
circumstances and conduct by the respondent
to lead this court to
infer that the disciplinary code and procedure was a tacit term of
his contract.
[24]
A tacit term is a term that arises from the actual imputed intention
of the parties as representing
what they intended should be the
contractual position or, where they did not address their minds to
that situation, what it is
inferred they would have intended had they
applied their minds to the question. The usual test for a tacit term
is that of the
interfering bystander who asks what is to happen in
the particular situation and receives the answer: ‘Of course X
will be
the position. It is too obvious for us to say so.’
[25]
I have no doubt that the answer to the bystander’s question as
to the parties’ intention,
especially that of the respondent,
is not one that suggests a tacit term, considering that the LRA
expressly provides such rights
and any breach thereof, which is the
right to refer an unfair dismissal dispute to the CCMA or, where
relevant, the appropriate
bargaining council.
[
26]
In summary, the applicant failed to plead and establish
the existence of such terms in his contract, being the disciplinary
code
and procedure contained in the respondent’s constitution.
In short, the applicant established no right to fairness in terms
of
his
contract
of employment.
[27]
Even if the applicant had been able to establish the existence of
such terms in his contract,
the launching of this
contractual
dispute was premature. This is so because the disciplinary code
provides a right of appeal to the CEC. In other words, the purported
contract provided a remedy against the decision of the Task Team,
which the applicant did not pursue prior to launching these
proceedings. Flowing from this, it cannot be said that when the
applicant launched these proceedings, the respondent had committed
a
breach, the nature of which entitled the applicant to invoke
contractual remedies for a fundamental breach.
Order
[28]
In the premises, I make the following order:
1. The application
for default judgment and the applicant’s referral are
dismissed.
_______________________________
B
Whitcher
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant: Kimani Ndung’u, Ndung’u Attorneys
[1]
There
is no averment regarding whether his contract of employment was a
verbal or written document, and to the extent that it
was a written
document, such document was not disclosed to the court in the
supporting affidavit to the application for default
judgment or at
the hearing of this matter.