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[2020] ZALCJHB 268
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Kapari and Another v Office of the Chief Justice and Another (J 539/2020) [2020] ZALCJHB 268 (29 June 2020)
The
Labour Court of South Africa
(Held
at Johannesburg)
Judgment
Of interest to other
Judges
CASE NO: J 539/2020
In the matter between:
BOITUMELO GAOPALELEWE
VALERIE
JANUARY
(KAPARI)
First Applicant
THE APPLICANTS LISTED
IN ANNEXURE A
TO THE NOTICE OF
MOTION
Second to further Applicant
and
OFFICE OF THE CHIEF
JUSTICE
First Respondent
MEMME
SEJOSENGWE N.O.
Second Respondent
Heard:
29 June 2020 (via Zoom)
Judgment delivered:
The judgment was handed down electronically by circulation to the
parties’ legal representatives and the
registrar by email on 29
June 2020 at 17h30.
JUDGMENT
VAN NIEKERK J
[1]
This is the third time in as many years that the issue of the work
security of Judge’s
secretaries has come before this court. The
applicants are all employed in that capacity, on fixed term contracts
that expire tomorrow,
30 June 2020. All of the applicants have been
employed on a series of fixed term contracts of one or three years’
duration,
some of them for a cumulative period more than 10
continuous years. In these proceedings, instituted on an urgent
basis, the applicants
seek an order declaring the first respondent
(the OCJ) to have committed an unfair labour practice by advertising
their current
positions; declaring them to be permanent employees in
their current positions; alternatively, declaring them to be
appointed on
fixed term contracts on the same terms and conditions.
In the alternative to these prayers, the applicants seek an interim
interdict
staying the interview and placement of candidates for their
current positions pending the outcome of a grievance escalated by the
applicants to the second respondent on 26 March 2020.
[2]
The material facts are not in dispute. As I have indicated, the
applicants are all
Judges’ secretaries, employed by the first
respondent at different times at the High Court, Gauteng Division,
Pretoria and
the Gauteng Local Division, Johannesburg. Ever since
their engagement, they have been employed on the basis of fixed term
contracts.
The applicants’ current contracts expire on 30 June
2020. On 22 May 2020, the OCJ advertised as vacant the positions
currently
filled by the applicants, and invited suitable applicants
to apply for appointment. The applicants in these proceedings are not
barred from applying for the positions concerned, but they would rank
with any other applicants for the position.
[3]
The applicants’ concern about their security of employment was
raised as long
ago as January 2019, when they wrote a letter to the
office manager enquiring about their employment status. On 29 March
2019,
they wrote a letter to the OCJ’s HR manager with the same
request. The matter ultimately resulted in a CCMA hearing on 31
October 2019, when the applicants were told by the presiding
commissioner that their referral was premature, since the internal
grievance procedure had not been exhausted.
[4]
On 5 December 2019, the applicants sent letters to the court manager
requesting permanent
appointment. The court manager requested them to
lodge a formal grievance, which she agreed to escalate to the OCJ’s
Gauteng
provincial service centre. That process was initiated on 11
December 2019. In their grievance forms, the applicants sought to be
declared permanent employees of the OCJ. Receipt of the grievance was
acknowledged on 18 December 2019.
[5]
On 14 February 2020, almost two months later, the applicants received
an acknowledgment
of receipt and confirmation that ‘
the
Human Resources section is dealing with the matter…
’.
[6]
On 20 March 2020, the provincial head: services centre Gauteng, Ms.
MJ Mokoena, wrote
a letter to the applicants in which she stated that
‘the Department is of the view that your grievance had been
properly
addressed and that you must indicate within five (5) working
days whether you consider your grievance resolved on this level or
should you wish to refer the matter to the next level’. The
terms on which the grievance was addressed was no more than an
assertion that the applicants had applied for and been appointed to
fixed term contract posts, which they had accepted.
[7]
The applicants then sought to escalate their grievance to the second
respondent. They
did so in a letter dated 26 March 2020. They heard
no more until 22 May 2020, when one of the applicants noticed that
his post
and those of the other applicants had been advertised. On 26
May 2020, the first applicant addressed an email to the second
respondent
noting that no response had been received to the letter of
26 March 2020, and requesting an urgent response. The second
respondent
did not respond. On 5 June 2020, the applicants’
attorney of record sent an email to the second respondent requesting
that
the recruitment of new candidates be cancelled and that the
applicants be permanently appointed or re-appointed on the same
terms.
There was no response to this letter. On 10 June 2020, the
applicants’ attorney telephoned the second respondent’s
office several times, without any one answering his call. The present
application was filed on 12 June 2020.
[8]
First, I accept that the application is urgent. To the extent that
the respondents
contend that any urgency is self-created, it should
be recalled that the applicants had been attempting for some time to
resolve
their grievance through means other than litigation, and that
it was in essence the OCJ’s decision to advertise their
positions
that precipitated the current proceedings. During the
course of the latter half of May 2020 and well into June 2020, the
applicants
sought a response from the OCJ to the grievance that they
had lodged. Regrettably, as I have noted, correspondence went
unanswered,
as did efforts by the applicant’s attorney to make
telephonic contact. The last such effort was made on 10 June 2020.
The
present application was filed two days later. I fail to
appreciate how the applicants can be held culpable in circumstances
where
they have attempted to pursue their grievance through the
prescribed channels and avoid the cost of court proceedings, only to
have their attempts met with resolute silence from their employer. In
any event, the applicants’ contracts expire tomorrow,
and given
the backlog in this court’s opposed motion roll, any relief in
the ordinary course would not be available to them
within the next 12
months. For me to find that the application is not urgent and that it
should be heard in the ordinary course
would defeat the purpose of
the application. I am satisfied that the application should be heard
as a matter of urgency.
[9]
The applicants rely on s 23 of the Constitution (specifically, the
right to fair labour
practices), in support both of the declaratory
order they seek that the OCJ committed an unfair labour practice by
advertising
their positions, and the declaratory order to the effect
that they are permanent employees in their current positions;
alternatively,
that they be appointed on a further fixed term
contract, on the same terms and conditions. The submission made on
behalf of the
applicants is that the Labour Relations Act (LRA) does
not afford them a remedy since the definition of ‘unfair labour
practice’
in the LRA makes no mention of advertising
already-occupied positions, and that in these circumstances, they are
entitled to rely
directly on s 23. The respondents submit that an
order to this effect would infringe on the principle of subsidiarity.
[10]
The principle of subsidiarity requires that where legislation is
enacted to give effect to a
constitutional right, reliance must be
placed, in the first place at least, on the provisions of the
specific legislation (see
Baron and others v Claytile (Pty) Ltd &
another
2017 (5) SA 329
(CC)). In
Safcor Freight (Pty) Ltd t/a
Safcor Panalpina v SA Freight and Dock Workers
[2012] 12 BLLR
1267
(LAC), Murphy AJA said the following, at paragraph 18 of the
judgment:
‘
In
my view, the Labour Court erred in declaring the award of increased
remuneration inconsistent with section 9 (equality) and section
23
(fair labour practices) of the Constitution. Where legislation has
been enacted to give effect to a constitutional right, a
party may
not bypass that legislation and rely directly on … the
general provisions of constitutional right to fair
labour [practices
in section 23 or the equality clause in section 9 of the
Constitution.’
[11]
This is a principle recognized and applied by the Constitutional
Court in
Minister of Health v New Clicks SA (Pty) Ltd and others
(Treatment Action Campaign as amicus curiae
2006 (2) SA 311
(CC)
and
SA National Defence Union v Minister of Defence & others
[2007] 9 BLLR 785
(CC) at paragraphs 50-51; see also
NAPTOSA and
others v Minister of Education, Western Cape, and others
2001 (2)
SA 112
(C).
[12]
To the extent that the applicants rely on
Murray v Minister of
Defence
[2008] ZASCA 44
;
[2008] 6 BLLR 513
(SCA) to claim direct reliance on s 23
(1), it should be recalled that that case dealt with a member of the
SANDF. Members of the
SANDF are expressly excluded from the
application of the LRA (see s 2). The court’s finding that
Murray was entitled to rely
directly on his constitutional right to
fair labour practices was expressly predicated on his exclusion from
the LRA. The applicants
in the present instance are not excluded from
LRA; they enjoy full protection of the rights that the Act confers.
[13]
In a recent judgment delivered by the High Court (
Moake &
another v Telkom Soc Ltd & another
,15246/2019, Movshovich AJ,
6 May 2020) the court was prepared to entertain a claim where the
applicant relied directly on s 23
(1) of the Constitution. (See PAK
le Roux ‘Fairness outside the Labour Relations Act –
Widening the scope for the direct
approach on Constitutional Rights’
Contemporar
y
Labour Law
vol 29 No 6 June 2020.) The
court said the following about the principle of subsidiarity,
referring to
Pretorius v Transnet Pension Fund
[2008] ZALC 24
;
[2018] 7 BLLR
633
(CC):
[34] I think that, if the
principle of subsidiarity is to develop in future, there may indeed
be a distinction which will need to
be drawn between an alleged
unfair labour practice arising from conduct connected with the
implementation of LRA processes and
procedures, and an alleged unfair
labour practice in the context of conduct not thus connected.
It seems to me that the case
for the application of the principle of
subsidiarity in the former is more compelling than the latter.
On the face of it,
certain elements of the applicants' case may tend
towards the former scenario rather than the latter.
[35] Nevertheless, given
the Constitutional Court's most recent judgment on the topic, in
Pretorius
, the supple nature of the subsidiarity principle and
the fact that the applicants in their pleadings situated their
complaint in
the context of the VERP/VSP process, I am prepared to
accept that the applicants' claim under section 23(1) is not
proscribed by
subsidiarity.
[14]
The dictum in
Pretorius
did no more than express the view that
the subsidiarity principle was not a ‘hard rule’ (see
My
Vote Counts v Speaker of the National Assembly
2015 (1) SA 132
(CC)) and that in the context of an exception, an unfair labour
practice claim against a pension fund should be permitted. This
finding does not expressly displace the principle of subsidiarity as
it finds expression in the
New Clicks
,
SANDU
and
NAPTOSA
judgments. I remain bound by those authorities.
Pretorius
might open the door to direct reliance on s 23 (1)
where the LRA (and the definition of unfair labour practice in
particular) fall
short of a full expression of the constitutional
right, but it does no more.
[15]
To disregard the principle of subsidiarity and grant access to this
(and other superior courts)
on the basis of a direct application of
the constitutional right to fair labour practices raises significant
issues of principle.
Halton Cheadle, who was instrumental in drafting
both the LRA and the Constitution, observes that a right to fair
labour practices
is ‘
an odd right to include in a Bill of
Rights’
and that its insertion into the interim
Constitution was part of a package of provisions to secure the
support of the public service
for the new constitutional
dispensation, and in particular, the restructuring and transformation
of the public sector (Davis, Cheadle
and Haysom
Fundamental Rights
in the Constitution: Commentary and Cases
at 212). Should the
constitutional right to fair labour practices be held to extend
beyond the traditional triad (i.e. to test
the validity of
legislation that gives effect to the right, to interpret that
legislation and to develop the common law), and should
it becomes the
basis for the development of new, substantive rights, there is a
clear danger that the finely balanced agreement
that the LRA
represents may be unraveled by well-meaning but enthusiastic judges.
This is especially so where persons covered
by the legislation
concerned seek to develop a definition of unfair labour practice
beyond that which already exists. Not least,
there is the prospect of
a ‘two stream’ development of labour law, an issue that
the LRA sought to eliminate and address
by establishing a specialist
labour court.
[16]
In short, it seems to me that to seek relief based on the direct
application of s 23 (1) of the
Constitution is not an option open to
the applicants. Should the applicants contend that the provisions of
the LRA fail adequately
to give expression to their constitutional
right to fair labour practices, their remedy is to challenge the
constitutionality of
that Act.
[17]
The applicants also relied on the judgment in
Luvuyo Nowalaza and
others v Office of the Chief Justice and another
(J1177/2017, 15
June 2017, Coetzee AJ) to submit that this court is empowered to
grant an order declaring them to be permanently
employed by the first
respondent. That case also concerned Judges’ secretaries,
employed on fixed term contracts. The
court found that the applicants
had a reasonable expectation of permanent employment and declared
them to be permanent employees
of the OCJ. In response to the defence
raised by the OCJ that it was obliged in terms of the relevant
regulations and policies
to advertise vacant posts (even those
rendered vacant on account of the expiry of a fixed term contract
entered into with the incumbent
employee) and interview suitable
applicants for the post, the court held that there was nothing in law
that prevented the applicants
from harbouring a reasonable
expectation of further employment without having to comply with the
provisions of the Public Service
Act (PSA) and its regulations (see
paragraph 97 of the judgment). To the extent that there was a
conflict between s 186 (1) (b)
(i) of the LRA and the PSA, the court
held that the LRA trumped.
[18]
While I have no difficulty with the conclusion that in circumstances
such as the present, the
rights of an employee engaged in terms of a
fixed term contract trump any prescribed recruitment and selection
processes where
the incumbent employee has a reasonable expectation
of renewal of the contract or of indefinite employment, the legal
basis on
which the court declared the applicants to be indefinitely
employed is less clear. I share the reservation expressed by my
colleague
Prinsloo J in
Smith & another v Office of the Chief
Justice & others
(2018) 39
ILJ
1357 (LC) that to the
extent that the court in
Nowalaza
based its finding on s 186
(1), that section does no more than define a ‘dismissal’
for the purposes of the LRA. It
certainly does not establish any
substantive right to continued employment (at paragraph 21 of the
judgment in
Smith
).
[18]
The dilemma that the applicants face of course, is that their
clearest recourse against the first
respondent arises only once they
are dismissed. In the present circumstances, that would require a
termination of their fixed-term
contracts, a reasonable expectation
of renewal of the contract or of indefinite employment. Section 191
defines the date of dismissal,
generally the trigger for the exercise
of any right against unfair dismissal. This is the date on which the
contract terminated
or, in the case of the failure to renew a fixed
term contract, the date on which the employer notified the employee
of the intention
not to renew the contract.
[19]
Section 198B of the LRA regulates the rights of employees engaged on
fixed term contracts and
in general terms, provides that an employer
may employee an employee on a fixed term contract or successive
contracts for longer
than three months of employment only if the
nature of the work is of a limited or indefinite duration, or the
employer can demonstrate
any other justifiable reason for fixing the
terms of the contract. Employment in terms of a fixed term contract
in contravention
of this provision is deemed to be of indefinite
duration (see s 198B (5)). The application of this section is limited
to those
employees earning below a prescribed threshold (see s 198B
(2) (a)). The court was advised that the applicants’ earnings
exceed the threshold, and that the remedy of a declaration of
indefinite employment in terms of s 198B is not available to them.
[20]
In any event, it is not open to the applicants to seek a final order
based on any of the above
provisions in this court. Section 157 (5)
is clear – this court does not have jurisdiction to adjudicate
an unresolved dispute
if the LRA or any other employment law requires
the dispute to be resolved through arbitration. Unfair labour
practice disputes
ordinarily are required to be resolved through
arbitration, as are dismissal disputes where the employee claims to
have a reasonable
expectation of the renewal of a fixed term
contract, or of indefinite employment. The applicants no doubt
appreciated that
they may find themselves without a substantive
remedy on the day and for this reason, filed an amended notice of
motion in terms
of which they sought interim relief. In their
amended notice of motion, the applicants seek what amounts to an
interim order
staying the interviewing and placement of candidates as
Judges’ secretaries pending the outcome of the grievance
escalated
to the second respondent on 26 March 2020.
[21]
This court has the power to grant interim relief, even if the
applicant’s final remedy
lies elsewhere (see, for example,
Jiba
v Minister of Justice and Constitutional Development
[2005] ZALC 15
;
[2009] 10
BLLR 989
(LC)). The requirements for interim relief in this court are
no different to those that apply in the High Court - a clear right
or
a right
prima facie
established though open to some doubt, a
well-grounded apprehension of irreparable if the interim relief is
not granted and the
ultimate relief sought is granted, a balance of
convenience in favour of granting interim relief, and the absence of
an any other
satisfactory remedy (see
Spur Steak Ranches Ltd v
Saddles Steak Ranch
1996 (3) SA 706
(C)).
[22]
It is not in dispute that the applicants have lodged a grievance in
which they seek permanent
employment, alternatively, the extension of
the fixed-term contracts. This grievance has been escalated to the
OCJ without success.
The applicable procedure provides for the
grievance to be forwarded to the Public Service Commission (where the
grievance is currently
lodged) for a recommendation, and thereafter
to the relevant sectoral council. I was informed that because the
applicants are contract
workers, the appropriate dispute resolution
agency is the CCMA. Be that as it may, the fact remains that there is
a live, legitimate
grievance to be dealt with in terms of the
applicable procedure. If the applicants are not granted interim
relief, they will cease
to employees within the next 48 hours and the
grievance process will be rendered nugatory. The only alternative
available to the
applicants is to accept a termination of their
contracts, and claim unfair dismissal. This is not a viable
alternative –
it will deprive them of employment in
circumstances where they have been continuously employed for years
(some of them for more
than a decade) It is also a consequence that
they have sought to avoid for more than a year by engaging with their
employer, who
has been less than diligent in any attempt at joint
problem-solving. In my view, the applicants have established that
they are
entitled to an interim order. The order is limited to those
applicants who are the original parties to the present application.
The applicants filed an application for joinder shortly before the
hearing. I make no ruling in this application. It is not clear
to me
that the circumstances of those sought to be joined are similar to
those of the applicants. IF they are, I trust that the
OCJ will treat
those affected on the same basis as the present applicants in terms
of the order recorded below, and that it will
not be necessary for
those cited as the third to thirtieth respondents in the joinder
application to file an application in their
own right.
[23]
Finally in relation to costs, I must take into account the fact that
the applicants’ have
substantially succeeded in their
application, but also the fact that the filing of the present
application is by and large the
consequence of a failure by the
relevant officials of the OCJ to respond to the applicants’
grievance within a reasonable
time, and to respond to their
attorney’s attempts to contact them by email and
telephonically. This matter ought never to
have reached the point of
litigation - the application of prudent human resources
management would have avoided this consequence
entirely. As I
indicated at the outset, this is the third application before this
court of which I am aware where Judges’
secretaries employed by
the OCJ have had to resort to litigation to advance their interests.
In the answering affidavit, much of
the explanation for the
unresolved issues relating to the terms of appointment of Judges’
secretaries concerns practices
inherited from the Department of
Justice, the need to establish policies and procedures when the OCJ
was established in April 2013,
and the like. The OCJ was established
more than seven years ago. That is more than sufficient time to
address what is the manifest
inequity of requiring long-serving
employees to continuously re-apply for their jobs, and the affront to
their dignity that is
the inevitable consequence. The regrettable
response by the OCJ’s management has been to hide behind the
terms of the fixed
term contract and ignore the reality of loyal and
long-serving employees with a legitimate interest in the security of
their employment.
[23]
Having regard to all of the relevant facts and circumstances, and in
the exercise of the broad discretion
conferred by s 162 of the LRA,
the interests of the law and fairness are in my view best satisfied
by an order that the first respondent
pays the applicant’s
costs.
I make the following
order:
1.
Pending the final outcome in a dispute resolution
agency with jurisdiction of the grievance lodged by the applicants on
26 March
2020:
a.
the applicants are to remain in the employ of the
first respondent, on the same substantive terms and conditions of
employment;
and
b.
the respondents are interdicted and restrained
from interviewing and/or placing any candidates into any of the
positions advertised
by the first respondent on 22 May 2020 and which
are currently occupied by any of the applicants.
2.
The first respondent is ordered to pay the costs
of the application.
André
van Niekerk
Judge
of the Labour Court
APPEARANCES
For the applicants: Adv.
E van Graan SC, with him Adv. P Kirsten, instructed Molebaloa
Attorneys (pro bono)
For the respondents: Adv.
M Rantho, instructed by the state attorney