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[2019] ZALCD 10
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Mbatha v Dube Tradeport Corporation (D1269/2019) [2019] ZALCD 10 (15 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG\DURBAN
Not reportable
Case No: D1269/2019
In the matter between:
ZODWA PATRICIA
MBATHA
Applicant
and
DUBE TRADEPORT
CORPORATION
Respondent
Heard: 2 October 2019
Delivered: 15 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The applicant seeks a declaratory order that her dismissal by the
respondent
was unlawful and
void ab initio
, and that she
should be entitled to resume her duties. The urgent application was
opposed on the applicant’s own papers.
[2]
The applicant was until her contract of employment was terminated on
2 September 2019,
employed by the respondent since
August 2015 in the position of Corporate Services Executive. The
respondent is a business
entity of the KwaZulu-Natal Provincial
Government, which is charged with the responsibility of developing
the province’s
infrastructural projects, with the aim of
promoting foreign and local investment.
[3]
The applicant’s employment was subject to probation and
security
clearance from the State Security Agency. The respondent had
however utilised the services of an entity called Foresight Advisory
Services (Pty) Ltd (FAS) to conduct the applicant’s security
clearance, whose report formed the basis of the termination
of the
employment contract.
[4]
The basis of the termination as per the notice issued on
2 September 2019
was as follows;
4.1
FAS had conducted a lifestyle audit and security vetting on the
applicant and
another executive, and the results were negative as it
was found that she presented a risk to the company.
4.2
Since the contract of employment was subject to a security clearance,
her employment
would automatically be invalid if the security vetting
results were negative.
4.3
The Board of the respondent on 26 August 2019 took account
of the
negative lifestyle and security vetting and resolved to
automatically terminate her employment, as the contract is rendered
invalid
by the negative results. This was further so since her
continued employment was demonstrably risky and untenable.
4.4
The contract of employment was invalid and was to be automatically
terminated
with immediate effect. It was further added that this was
not a dismissal but an automatic termination of the contract of
employment
by virtue of her negative lifestyle audit and security
vetting.
[5] The
applicant challenged the termination of her services on the grounds
that;
5.1
It was done in breach of her contract of employment as she was
summarily dismissed
on grounds not listed therein, and further that
the respondent had relied on the contents of the FAS report.
5.2
The
respondent failed to follow the procedures as required by the Labour
Relations Act (LRA)
[1]
as she
had successfully completed her probationary period at the time that
she was dismissed.
5.3
The respondent failed to acquire a security clearance from the State
Security
Agency, which is the only competent authority that can
confer the security clearance status of the level of ‘secret’.
5.4
FAS was not competent to perform the vetting as its mandate did not
deal with
security clearance, nor could its investigation be
construed as ‘a security clearance’.
5.5
The FAS recommendations did not in any event find her guilty of any
misconduct.
5.6
Her dismissal was predicated on malice and was a witch-hunt, as she;
5.6.1
Had differences of opinion with Hamish Erskine, the CEO of the
respondent in respect of certain functioning
of the respondent;
5.6.2
Had also challenged certain instructions related to procurement
processes in her capacity as a member of
the Bid Evaluation
Committee;
5.6.3
Had made recommendations for a skills audit of the respondent’s
employees to be performed, as she
had established that some of these
employees occupied positions which they were not suitably qualified
for;
5.6.4
Had also challenged the manner in which financial transactions were
handled, including the non-reconciliation
of the respondent’s
payroll;
5.6.5
She was targeted as her performance rating was downgraded without
reasons, her work environment was changed
to her detriment, and was
side-lined on key decisions of the respondent which were to be
considered by her. In August 2019
she had declared a dispute in
relation to her performance assessment moderation.
Preliminary
issues:
[6]
In opposing
the application, the respondent raised two preliminary points,
viz
,
the lack of jurisdiction, and the lack of urgency. In regards to
urgency, it is trite that it is required of an applicant seeking
urgent relief to set out in the founding papers, the reasons for
urgency, and why urgent relief is necessary. Equally so, an applicant
is not entitled to rely on urgency that is self-created when seeking
a deviation from the rules, nor can the matter be treated
as urgent,
when there are alternative appropriate remedies.
[2]
[7]
It is equally trite that an applicant seeking urgent relief must
approach
the Court with the necessary haste, and where this was not
done, at the very least, an explanation is required for the delay,
and
the applicant must show cause why in the circumstances, the Court
still ought to grant the relief sought.
[8]
In this case, it being common cause that the termination of the
applicant’s
services took place on 2 September 2019,
this application was only launched on 30 September 2019.
The applicant’s
explanation for the delay was that upon the
termination of her services, she was unable to react immediately as
she was fearful
that these events, which came as a shock to her, may
exacerbate her medical condition (high blood pressure), particularly
after
being hospitalised in August 2019. It was only after when
she had settled emotionally that she had contacted her attorneys
of
record on 10 September 2019 and had her first consultations
on 12 September 2019. Counsel was consulted
on
16 September 2019 and on 17 September 2019,
correspondence was sent to the respondent in which a demand
was made
for her reinstatement within 48 hours failing which this application
would be launched. The response from the respondent
on
19 September 2019 was not positive, resulting with further
consultations with counsel on 23 September 2019
in order to
settle the papers. It was only on 24 September 2019 that
the papers were settled.
[9]
Inasmuch as the applicant had made an attempt to explain the delay in
bringing this application since her dismissal on 2 September 2019,
not much is said about the period between the date
of her dismissal,
and 10 September 2019 when she started her consultations
with her attorneys, and between 24 September 2019
after the
papers were settled and 30 September 2019 when the
application was filed and served. As it was submitted by
Mr Van
Niekerk SC for the respondent, the invariable conclusion to be
reached is that in the light of the failure to address these
gaps,
either the applicant’s legal representatives or herself took
their own time in approaching the Court for urgent relief,
making the
urgency claimed self-created.
[10]
Central to the grounds upon which urgency is sought in this case is
the applicant’s
personal circumstances as the sole provider in
her household and extended household. She further averred that the
length in having
an unfair dismissal dispute referred and adjudicated
in the Commission for Conciliation Mediation and Arbitration (CCMA)
will be
prejudicial to her, as she cannot be able to sustain herself
and her dependents without an income for the period in which can be
expected to have the matter finalised at the CCMA. She averred that
she had no financial means and resources to fund legal costs
at the
CCMA.
[11]
The issue
of whether financial hardship is a basis of seeking urgent relief has
received attention in this and other Courts. As
a general principle,
financial hardship does not establish a basis for urgency
[3]
.
It has been held that the
mere
fact that irreparable financial losses have been suffered or would be
suffered by the applicant was not, by itself, sufficient
ground to
acquire the requisite urgency necessary to justify a departure from
the ordinary court rules
[4]
.
The Courts have however accepted that the general principle may be
departed from if exceptional circumstances are established,
depending
on the merits of each case
[5]
.
[12]
In line with this approach, it can be accepted that an applicant may
be granted urgent
relief if she can demonstrate detrimental
consequences that may not be capable of being addressed in due
course. In this case,
cruel and insensitive as it may sound, (given
the averments in regards to her personal circumstances), the
financial hardship that
the applicant complains of are the ordinary
consequences of a dismissal, which are experienced by multitudes of
employees on a
daily basis upon a loss of a job. The circumstances
are thus hardly exceptional, and there is no basis for a conclusion
to be reached
that any such harm is incapable of being fully
addressed in the normal course, and to the extent that the applicant
may be vindicated.
Consequently, financial hardship as in this case
is not is cause to depart from the normal rules of this Court.
[13]
Equally so, the fact that the applicant is employed by a public
entity in a relatively
senior position, and performs important
functions at that entity is hardly an exceptional circumstance or a
basis to grant urgent
relief. This is so in that to hold otherwise
would imply that employees in lesser positions and with even lesser
or no means to
approach the Court on an urgent basis should be
treated differently. It would not only be iniquitous but also
untenable for this
Court to grant urgent relief on those grounds.
Furthermore, the contention that the applicant would not be in a
position to get
redress on the grounds that she has no financial
means to pursue her dispute (at the CCMA as she averred), cannot be a
basis for
granting urgent relief, as it is well known that to the
extent that a dispute may be referred to the CCMA, litigants at that
forum
need not be legally represented.
[14]
In regards
to the issue of jurisdiction, it was submitted on behalf of the
respondent that an order declaring the dismissal of the
applicant as
unlawful and
void
ab initio
was inconsistent with the principles set out in
Steenkamp
and Others v Edcon Limited
[6]
,
more in
particular, the views expressed by Zondo (as he then was) that first,
the LRA does not contemplate invalid dismissals or
an order declaring
a dismissal invalid and of no force and effect; and second, that the
declaratory order sought is a wrong remedy
for a breach of the
LRA
[7]
. To this end, it was
submitted that the applicant has alternative remedies in the form of
a referral of the dispute to the CCMA
[15]
To the
extent that the applicant seeks a declaratory order, a difficulty she
is faced with is that it has long been held that such
an order would
be inappropriate in circumstances where she has alternative
remedies
[8]
, and it can be said
that this approach is in sync with what was stated in
Steenkamp
as referred to above.
[16]
It was
submitted on behalf of the applicant that she brought this
application in terms of section 77(3) of the Basic Conditions
of
Employment Act (BCEA)
[9]
.
The first difficulty however is that this is not specifically pleaded
in her founding affidavit and was only raised during arguments.
Second, it was stated in
Steenkamp
that if a litigant’s cause of action is contractual in nature,
the remedy will have to be found within contract law
[10]
.
The applicant’s difficulty however in this regard is that in
relying on her contract of employment, clause 30 of that contract
provides that in the event that there may be any dispute whatsoever
between the parties concerning the termination of the employee’s
employment, including any dispute concerning conditions applicable to
any such termination, this shall be determined in terms of
the
dispute resolution procedures in the LRA. In the alternative, private
arbitration may be agreed upon by the parties following
a
disciplinary hearing or an appeal.
[17]
To the extent that it is common cause that there was a summary
dismissal (whether framed
as ‘unlawful termination’ or
something else), it is apparent from the very provisions of the
contract of employment
that the applicant’s remedies lie in the
dispute resolution scheme designed in the LRA, and it would thus be
impermissible
for her to rely on the provisions of section 77(3) of
the BCEA, which should not be read to be an open invitation to bring
contractual
disputes, where imbedded in the very provisions of the
contract relied upon, is a dispute resolution procedure. Thus, all
the issues
that she had raised in regards to how in dismissing her
the respondent had not complied with the provisions of her contract
of
employment, including the fact that she was not afforded a
disciplinary hearing before termination, or that the procedures under
the LRA were not followed, are issues to be determined within the
context of a referral of a dispute as envisaged in section 191
of the
LRA, even if it was the respondent’s contention that she was
not dismissed but that there was an automatic termination
of the
contract of employment by virtue of her negative lifestyle audit and
security vetting.
[18]
In conclusion, having had regard to the applicant’s founding
affidavit and the submissions
made by both counsel, I am not
satisfied in the end, that there is a basis for according this matter
urgency. Furthermore, the
preliminary point related to the
jurisdiction of this Court to grant the relief sought ought to be
upheld. Ultimately, the applicant
has alternative remedies available
to her from which she can obtain redress in respect of any harm
consequent upon the termination
of her services.
[19]
I have further had regard to the requirements of law and fairness,
and clearly given the
facts and circumstances of this case, there is
no basis for any award of costs to be made. Accordingly, the
following order is
made;
Order:
1. The Applicant’s
urgent application is dismissed.
2. There is no order as
to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv. Qono-Reddy, instructed by
Cebisa Attorneys
For
the Respondent:Adv. G.O Van Niekerk SC, instructed by A.P Shangase &
Associations
[1]
Act 66 of 1995 (as amended)
[2]
See
J
iba
v Minister: Department of Justice and Constitutional Development and
Others
(2010) 31 I
LJ
112
(LC);
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
[2012]
JOL 28244
(GSJ)
at para 6, where it was held;
‘…
.
An applicant has to set forth explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must
state the reasons why he claims that he cannot be afforded
substantial redress at a hearing in due course. The question of
whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence
of
substantial redress in an application in due course. The rules allow
the court to come to the assistance of a litigant because
if the
latter were to wait for the normal course laid down by the rules it
will not obtain substantial redress.’
[3]
Jonker
v Wireless Payment Systems CC
(2010)
31 ILJ 381 (LC) at para 16
.
[4]
Ntefe J
Ledimo & others v Minister of Safety and Security & Others(
Case
Nr : 2242/2003 (Unreported): A decision of the High Court OFS
Provincial Division delivered on 28 August 2003 at paragraph
32,
where Rampai J) held that:
“
In
the three cases I have quoted above the courts have held that the
mere fact that irreparable financial losses have been suffered
or
would be suffered by the applicant was not, by itself, sufficient
ground to ground the requisite urgency necessary to justify
a
departure from the ordinary court rules. In applying this
principle, a judge will do well to keep the words of wisdom
which
were expressed through the lips of Kroon J on p 15 in
CALEDON
STREET RESTAURANTS CC
(
supra
).
I find it apposite to echo those sentiments here by quoting him
verbatim:
“
However,
the following comments fall to be made. First, to the extent
that these cases may be interpreted as laying down
that financial
exigencies cannot be invoked to lay a basis for urgency, I consider
that no general rule to that effect can be
laid down. Much
would depend on the nature of such exigencies and the extent to
which they weigh up against other considerations
such as the
interests of the other party and its lawyers and any inconvenience
occasioned to the court by having to entertain
an application on an
urgent basis. Second, whatever the extent of the indulgence,
the sanction of the court thereof that
an application be heard as a
matter of urgency, would not in general, in this Division, accord
the matter precedence over other
matters and result in the disposal
of the latter being prejudiced by being delayed.”
[5]
See
Harley
v Bacarac Trading 39 (Pty) Ltd
(2009)
30 ILJ 2085 (LC) at para 8 where it was
held:
‘
If
an applicant is able to demonstrate detrimental consequences that
may not be capable of being addressed in due course and if
an
applicant is able to demonstrate that he or she will suffer undue
hardship if the court were to refuse to come to his or her
assistance on an urgent basis, I fail to appreciate why this court
should not be entitled to exercise a discretion and grant
urgent
relief in appropriate circumstances. Each case must of course be
assessed on its own merits.’
[6]
CCT47/15)
[2016] ZACC 1
; (2016) 37 ILJ 564 (CC);
2016 (3) BCLR
311
(CC);
[2016] 4 BLLR 335
(CC);
2016 (3) SA 251
(CC), where it was
held;
“
[116]
I think that the rationale for the policy decision to exclude
unlawful or invalid dismissals under the LRA was that
through the
LRA the Legislature sought to create a dispensation that would be
fair to both employers and employees, having regard
to all the
circumstances, including the power imbalance between them. In
this regard a declaration of invalidity is based
on a “winner
takes all” approach. The fairness which forms the
foundation of the LRA has sufficient flexibility
built into it to
enable a court or arbitrator to do justice between employer and
employee. For example, where a dismissal
is unlawful by virtue
of the employer having failed to follow a prescribed procedure
before dismissing an employee and the dismissal
is declared invalid,
in law the employee is regarded as never having been dismissed and
will be entitled to all arrear wages
from the date of the purported
dismissal to the date of the order. Under the LRA a dismissal
will be recognised as having
taken place irrespective of whether the
dismissal is held to have been automatically unfair or unfair
because there was no fair
reason for it or because there was no
compliance with a fair procedure in effecting it.”
And,
“
[180]
The LRA does not contemplate orders of invalidity in respect of
dismissals. This is because through orders of
reinstatement
that operate with retrospective effect to the date of dismissal the
same result may be achieved as is achieved
through an order
declaring a dismissal invalid. Furthermore, that is achieved
while retaining the flexibility that comes
with fairness and equity
which are the foundation of the LRA dispensation and without the
rigidity of the common law on which
the invalidity of dismissals is
based. Therefore, under the LRA the need for invalid
dismissals does not arise.”
[7]
At
para 102. See also at;
“
[106]
Section 189A falls within Chapter VIII of the LRA. That is the
chapter that deals with unfair dismissals.
Its heading is:
UNFAIR DISMISSAL AND UNFAIR LABOUR PRACTICE. Under the heading
appears an indication of which sections
fall under the chapter.
The sections are reflected as “ss 185-197B”. The
chapter starts off with section
185. Section 185 reads:
“
Every
employee
has
the right not to be—
(a)
unfairly dismissed; and
(b)
subjected to unfair labour practice.”
Conspicuous
by its absence here is a paragraph (c) to the effect that every
employee has a right not to be dismissed unlawfully.
If this
right had been provided for in section 185 or anywhere else in the
LRA, it would have enabled an employee who showed
that she had been
dismissed unlawfully to ask for an order declaring her dismissal
invalid. Since a finding that a dismissal
is unlawful would be
foundational to a declaratory order that the dismissal is invalid,
the absence of a provision in the LRA
for a right not to be
dismissed unlawfully is an indication that the LRA does not
contemplate an invalid dismissal as a consequence
of a dismissal
effected in breach of a provision of the LRA.
“
[107]
This indication is reinforced when one has regard to the definition
of “dismissal” in section 186(1).
It starts with what
would ordinarily be understood as a dismissal, namely, a termination
of employment with or without notice.
That encompasses the
ordinary situation of the employer giving notice under the contract
of employment and a summary dismissal.
But then in five
further paragraphs it extends the concept of dismissal far beyond
its ordinary meaning. Once again the
absence of any reference
to an unlawful dismissal is telling. It suggests that, if a
dismissed employee wishes to raise
the unlawfulness of their
dismissal, they must categorise it as unfair if they are to obtain
relief under the LRA.”
[8]
See
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
(2012)
33 ILJ 2033 (LAC)
at
para 46
[9]
Act
75 of 1997
[10]
At
para 103