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[2020] ZALCJHB 173
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Mpane v Passenger Rail Agency of South Africa (PRASA) and Others (J 3745/18) [2020] ZALCJHB 173; [2021] 1 BLLR 76 (LC); (2021) 42 ILJ 546 (LC) (9 June 2020)
In
the Labour Court of South Africa, JOHANNESBURG
Not
reportable
Case no: J 3745/18
KEABETSWE
ELIZABETH MPANE
Applicant
And
THE
PASSENGER RAIL AGENCY OF SOUTH
AFRICA
(PRASA)
BONGISIZWE
MPONDO (ADMINISTRATOR)
THE
MINISTER OF TRANSPORT
Heard:
29 May 2020
Delivered:
9 June 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by
circulation to the parties' representatives by email. The date for
hand-down is deemed to be 9 June 2020.
First
Respondent
Second
Respondent
Third
Respondent
JUDGMENT
Introduction:
[1]
The Applicant filed an urgent application
wherein the gist of the relief sought is to the effect that the
termination of her contract
of employment be interdicted.
[2]
The application is opposed by the First
(PRASA) and the Second (the administrator) Respondents. The Third
Respondent (the Minister)
filed a notice to abide by the Court’s
decision.
[3]
The matter was set down for hearing on 29
May 2020 and due to the Covid-19 lockdown measures, the parties
presented argument via
Zoom.
Background facts:
[4]
The Applicant is employed by PRASA as
Group: Chief Procurement Officer in terms of a fixed term contract
that is effective from
1 October 2019 until 30 September 2024.
[5]
On 5 December 2019, the PRASA Board of
Control (the Board) was dissolved and on 9 December 2019, the
Minister announced that he
had placed PRASA under administration. The
role of Group CEO (GCEO) was integrated into the role of the
administrator, who was
appointed to run the affairs of PRASA as a
de
facto
Board of Control for a period of
twelve months.
[6]
The decision to appoint the administrator
is the subject of a review application that was launched by
#UniteBehind in the Western
Cape High Court. In the application,
#UniteBehind seeks to
inter alia,
review
and set aside the Minister’s appointment of the administrator
in
lieu
of
a Board of Control and for it to be declared unlawful.
[7]
The
matter between #UniteBehind and the Minister, concerning the legality
of the Minister’s appointment of Mr Mpondo as PRASA’s
administrator was argued on 26 May 2020 in the Western Cape High
Court. Judgment in that matter was reserved, however the parties
were
encouraged to settle the matter and to revert to the presiding Judge
on the issue of settlement by 2 June 2020. The outcome
of the
aforesaid litigation in unknown.
[8]
On 26 May 2020, the administrator issued an
invitation to make representations to the Applicant. The
administrator referred to previous
correspondence regarding the
Applicant’s performance and mentioned that he had considered
her response and the document that
she submitted. He further referred
to a recent debacle surrounding an application to the National
Treasury to deviate from procurement
processes, which the
administrator viewed as indicative of performance failures on the
Applicant’s part.
[9]
The Applicant was invited to submit written
submissions as to why her employment should not be terminated as a
result of her unacceptable
performance, which is way below and short
of what is expected of an employee in her position. The Applicant’s
submissions
were to reach the administrator by no later than 18:00 on
27 May 2020, failing which a final decision would be made without the
Applicant’s input.
[10]
Instead of making submissions, the
Applicant approached this Court on an urgent basis for relief.
[11]
The Respondents took issue with urgency. I
have considered the Applicant’s submissions in support of
urgency and the Respondents’
averments as to why the matter
should not be dealt with on an urgent basis. I do not intend to deal
with the attack on urgency
in detail as I am of the view that this
matter deserves the Court’s urgent attention. I therefore
exercise my discretion
to deal with the merits of this matter on an
urgent basis.
The
relief sought
[12]
The Applicant approached this Court for
relief in the following terms:
1.
That the Respondents be interdicted and
restrained from issuing the Applicant with a termination letter or
otherwise purporting
to terminate the Applicant’s employment
with PRASA;
2.
Declaring that the administrator lacks the
authority to terminate the Applicant’s employment with PRASA;
3.
That the Respondents be ordered to refrain
from harassing or threatening the Applicant with termination of her
contract of employment.
4.
That PRASA and the administrator be ordered
not to take any action against the Applicant pending the finalisation
of the application
under case number 2058/20, Western Cape Division
of the High Court, Cape Town;
5.
Alternatively, that the Respondents be
ordered to follow the procedures as prescribed in the Applicant’s
employment contract
and other processes governing the relationship
between the Applicant and the Respondents.
[13]
I will deal with the specific relief sought
in turn.
The administrator’s
authority
[14]
One part of the relief sought relates to
the position of the administrator and his authority to terminate the
Applicant’s
employment.
[15]
In the founding affidavit, the Applicant
submitted that the administrator has no authority to appoint and
dismiss PRASA executives
as his appointment as administrator is
invalid.
[16]
In support of her case the Applicant
explains that the appointment of the administrator is currently
challenged in the Western Cape
High Court under case number
2058/2020. The Applicant provided a summary of the facts in the
aforesaid matter. The Applicant is
not a party to the matter pending
before the High Court.
[17]
The Applicant submitted that she has a
clear right that the administrator lacks authority to dismiss her.
She seeks an order from
this Court to declare that the administrator
lacks authority to terminate her employment with PRASA.
[18]
It is evident that the relief sought in
this regard and the right which the Applicant seeks to protect is not
to be found in her
contract of employment and did not arise as a
result of any breach of contract.
[19]
There are a number of difficulties with the
relief that the Applicant seeks.
[20]
The first difficulty is that the Applicant
seeks an order declaring that the administrator lacks authority, but
in the application
before this Court the Applicant failed to set out
any grounds to substantiate the relief she seeks. The Applicant
merely referred
to the fact that the administrator’s
appointment is challenged in the Western Cape High Court and at best,
she provided a
summary of facts in the aforesaid application.
[21]
The second difficulty is whether, absent
any finding or order that the administrator’s appointment was
invalid or unlawful,
that this Court would have jurisdiction to
determine or declare that the administrator lacks authority to
terminate the Applicant’s
employment.
[22]
The proper forum to adjudicate and decide
on the validity and legality of the administrator’s
appointment, is indeed the High
Court and as alluded to, such an
application is pending in the Western Cape High Court.
[23]
The Applicant failed to make out a case
before this Court to show that the administrator has no authority and
that this Court indeed
has jurisdiction to make such a determination.
The Applicant placed no facts before this Court, independent from a
reference to
the application pending in the Western Cape High Court,
to support her case.
[24]
The Applicant has not established that she
has a clear right that the administrator lacks authority to dismiss
her and as such she
is not entitled to such relief.
Interdicting the
termination of the Applicant’s contract of employment
[25]
The Applicant seeks a number of orders to
the effect that the Respondents be interdicted and restrained from
issuing her with
a termination letter or otherwise purporting
to terminate the Applicant’s employment with PRASA, or from
threatening to do
so.
[26]
Whether
or not the Applicant has a right is a matter of substantive law and
the onus is on the Applicant to establish on the facts
and evidence
placed before this Court that she has a
prima
facie
right
in terms of the substantive law. The Applicant also has to prove that
the right is a legal right and a right which can be
protected
[1]
.
[27]
The Applicant submitted that she has a
clearly established right to be employed and to remain employed in
terms of her signed contract
of employment.
[28]
The question is whether the Applicant has a
right to remain employed and not to have her contract of employment
terminated.
[29]
The answer to this question is to be found
in the terms of the Applicant’s contract of employment. It is
evident from a perusal
of the terms of the contract that there is
indeed a clause that provides for the termination of the Applicant’s
contract
of employment.
[30]
As there is a contractual clause which
provides for the termination of the contract, the Applicant has not
established that she
has a right not to have her contract of
employment terminated and it follows that she is not entitled to the
relief she seeks.
Contractual claim
[31]
The alternative relief sought by the
Applicant is that the Respondents be ordered to follow the procedures
as prescribed in the
Applicant’s contract of employment and
other processes governing the relationship between the Applicant and
the Respondents.
[32]
The
Applicant’s case is premised on the provisions of section 77(3)
of the Basic Conditions of Employment Act
[2]
(BCEA).
[33]
The Applicant’s case is that the
Respondents must comply with all the policies and procedures before
purporting to terminate
her employment, as those are incorporated
into the terms of her contract of employment.
[34]
The sequence of relevant events is as
follows:
[35]
The administrator wrote to the Applicant on
30 March 2020 and set out his concerns about her performance and she
responded to this
on 31 March 2020. Another letter followed on 16
April 2020, when the administrator extended the Applicant’s
probationary
period until 31 July 2020 due to his concerns about her
performance and he had indicated that he would be monitoring her
performance
during the extended probationary period. To this the
Applicant responded on 18 and 24 April 2020 and disputed that her
contract
of employment was subject to a probationary period.
[36]
On 24 April 2020, the Applicant furnished
the administrator with draft performance targets to be discussed in a
meeting that was
proposed to take place between the parties. The
administrator responded to this on 6 May 2020, stating that he was in
the process
of considering the documents submitted by the Applicant
and that he would revert to her within 10 working days.
[37]
On 21 May 2020, the administrator asked the
Applicant about Transnet’s supply of stock items to PRASA, a
matter that was unrelated
to the previous correspondence. To this,
the Applicant responded on 22 May 2020.
[38]
On 26 May 2020, the Applicant was invited
to make representations as to why her employment should not be
terminated as a result
of her unacceptable performance.
[39]
The Applicant’s version was that she
was still expecting a reply from the administrator, when she received
the letter of 26
May 2020, inviting her to make representations as to
why her contract of employment should not be terminated as a result
of her
unacceptable performance. She was shocked to receive this
letter as she was still awaiting a meeting to be set up to discuss
her
performance issues.
[40]
The administrator submitted in his opposing
affidavit that he had not taken a decision to dismiss the Applicant,
but that he invited
the Applicant to make representations as to why
he should not take such a decision, which approach he stated is in
line with the
requirements of the Code of Good Practice: Dismissal
(Incapacity).
Analysis
[41]
Clause 2.3.1 of the Applicant’s
contract of employment provides for the agreement to mean the
employment agreement and its
annexures and any policies of PRASA
which may apply in terms thereof. Clause 9.2 provides that during the
currency of the agreement,
the parties shall have the right to
terminate the employment relationship, provided that the parties
shall in all respect have
complied with PRASA’s internal
policies and procedures, prior to such termination.
[42]
Thus for the Applicant to succeed with her
contractual claim, she has to show that a policy that was
incorporated in terms of her
contract of employment and which is
indeed applicable, was not complied with.
[43]
In the founding affidavit, the Applicant
referred to her contract of employment and she set out the salient
terms of her contract.
She specifically referred to the terms of
PRASA’s disciplinary code and grievance procedure, which was
attached and referred
to as annexure “KEM2”. The
Applicant alleged that the Respondents failed to follow the rules of
natural justice and
to comply with the aforesaid disciplinary code
when she was issued with an invitation to make representations as to
why her contract
of employment should not be terminated as a result
of her unacceptable performance.
[44]
The Respondents' answer to this is that the
Applicant has not been subjected to any disciplinary action as
contemplated by PRASA’s
disciplinary code. The administrator’s
attitude is that the employer can set time periods by which an
employee should respond
to allegations of poor work performance and
where her dismissal is contemplated, the date and time by when
representations should
be made. The administrator does not tell this
Court as to which policy entitles him to set time periods and
require representations
as a method of dealing with poor work
performance, more so where dismissal is contemplated.
[45]
The gist of the administrator’s
response is that he had informed the Applicant that he would be
monitoring her performance
and if a matter came to his attention that
she still failed to perform, he cannot ignore it because it had
happened before and
it was for the Applicant to demonstrate her
competency and fitness for the position she holds.
[46]
In essence the Applicant’s case is
the Respondent be ordered not to take any action against her without
following the procedures
prescribed in her contract of employment and
for the Respondents to comply with the policies, incorporated into
her contract of
employment, before terminating her employment.
[47]
The Applicant referred specifically to
clause 1.7 of the disciplinary code, wherein the objectives of the
PRASA disciplinary code
are set out as
inter
alia,
to ‘correct and eliminate
unacceptable behaviour or inadequate performance when corrective
discipline has failed or where
no alternative corrective action can
be considered’. It is evident that mention of ‘inadequate
performance’ is
made in the disciplinary code and that to the
extent that poor or inadequate work performance is regarded as
misconduct, the employer
is bound by the disciplinary code and its
provisions would apply.
[48]
To the extent that the Respondents’
case is that this is not a case of misconduct, the Applicant has
attached the PRASA policy
on performance management and development,
which provides for performance management. The performance management
policy also provides
for a disciplinary process to be invoked in
order to address misconduct or persistent poor work performance,
including issues which
may have been dealt with via the formal
counselling procedure. Performance issues are to be identified
through the assessment process
of the performance management system.
The policy further provides that ‘disciplinary action is
intended to encourage a poor
performing employee to improve’.
[49]
It is evident from
the papers placed before this Court that it is undisputed that t
he
Applicant has a valid and existing contract of employment with PRASA
and that such contract incorporates all PRASA’s policies
and
that the termination of employment is contractually agreed to,
provided that the parties shall in all respects have complied
with
the PRASA policies and procedures prior to termination.
[50]
The disciplinary code as well as the
performance management policies form part of the Applicant’s
contract of employment and
it prescribes procedures to be followed in
the event of poor or inadequate work performance and in dismissing an
employee, there
ought to have been a fair process in terminating the
contract of employment.
[51]
The Applicant’s
case is that the Respondent’s invitation to make
representations as to why her contract of employment
should not be
terminated and in all probability the termination that would follow,
is in breach of her employment contract and
thus unlawful. The terms
of the contract of employment incorporated the disciplinary code and
procedure and all other applicable
PRASA policies and the
administrator embarked on a process to terminate her employment
against the provisions of the PRASA
policies.
[52]
In my view, there is merit in the
Applicant’s case in so far as her cause of action is based on
breach of contract.
[53]
I cannot but find that the invitation to
make representations as to why her services should not be terminated
and the administrator’s
conduct in contemplating the
Applicant’s dismissal, is in breach of the terms of her
contract of employment.
[54]
In casu,
the
administrator displayed a wholesale disregard of the contractual
terms that are binding and the policies that are incorporated
therein, which in itself is an internal safeguard against an
arbitrary, capricious or unprocedural dismissal. By disregarding the
prescripts of the policies in the process contemplating the
Applicant’s dismissal, the Respondents’ conduct amounted
to a breach of the Applicant’s contract of employment and she
is entitled to seek to enforce her contractual remedies following
that breach.
[55]
The administrator acted in a high-handed
manner when he adopted his own version of what he regarded to be a
proper process in circumstances
where he was of the view that the
Applicant failed to perform adequately. In the approach he adopted,
he had no regard for the
contractual terms or the PRASA policies that
had to be respected and complied with.
[56]
In summary: the Applicant is entitled to
relief insofar as she seeks specific performance in order to enforce
her contractual rights
in terms of the applicable policies, before
there could be any decision taken on the termination of her services.
I have slightly
modified the relief sought by the Applicant as a case
was made out for the relief, but the prayer in which the relief
sought, was
not properly drafted.
[57]
To
the extent that the Respondents’ submitted that the Applicant
has the right to refer a dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA), should her employment be
terminated, and that she has sufficient alternative remedies
available
to her, I am inclined to follow
Ngubeni
v The National Youth Development Agency and Another
[3]
where
the question of relief has been considered and 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’.
[58]
In
Wereley
v Productivity SA and Another
[4]
the
Court confirmed that it is trite that the non-compliance with
prescribed procedures might lead to a finding that a dismissal
was
procedurally unfair, but that the power of an arbitrator is limited
to awarding compensation. The CCMA is not empowered to
determine the
contractual lawfulness of a decision to dismiss and employee. The
contractual remedies for non-compliance with an
obligatory procedure
are not equivalent to the remedy for unfair dismissal under the
Labour Relations Act
[5]
(LRA).
The Court held that it was a conceptual mistake to collapse the two
causes of action simply because both concerned issues
of procedural
non-compliance.
[59]
Let it be clear:
PRASA is entitled to terminate the Applicant’s employment on
grounds of poor work performance, it is however
not entitled to do so
without following a process provided for in a policy that the parties
contractually agreed to. Whether there
are valid grounds relating to
poor or inadequate work performance to justify the termination of the
Applicant’s contract
of employment, is not an issue for this
Court to decide.
Costs
[60]
The last issue to be
decided is the issue of costs.
[61]
The Applicant seeks a cost order against
the Respondents and the Respondents in turn, seeks the dismissal of
the application with
costs. Effectively both parties are seeking an
order where costs should follow the result.
[62]
I can see no reason not to follow the rule
of practice in circumstances where this application was brought not
in terms of the provisions
of the LRA, but purely on a contractual
basis where ‘fairness’ finds no application in deciding
the issue of costs.
[63]
In the premises, I make the following
order:
Order
1.
Prior to taking any decision to terminate
the Applicant’s employment, the Respondents are ordered to
comply with the terms
of the Applicant’s contract of
employment, such terms to include any applicable policies and
procedures incorporated into
the contract.
2.
The First and the
Second Respondents are ordered to pay the Applicant’s costs
jointly and severally, the one paying the other
to be absolved.
_______________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate M Meyerowitz
Instructed
by:
Maponya Ledwaba Inc Attorneys
For the First and Second
Respondents:
Mr P Maserumule of Maserumule Inc
Attorneys
[1]
The
Civil Practice of the High Courts of South Africa, Herbstein &
Van Winsen, 5
th
edition, page 1457– 1463.
[2]
Act
75 of 1997.
[3]
(2014)
35 ILJ 1356 (LC) at para 21.
[4]
(2020)
41 ILJ 997 (LC) at para 41.
[5]
Act
66 of 1995 as amended.