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[2025] ZALCD 2
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Hittler v Ethekwini Municipality and Others (D616/2024) [2025] ZALCD 2 (13 January 2025)
THE
LABOUR COURT OF SOUTH AFRICA
AT DURBAN
Of interest to other
judges
Labour
Court Case No: D616/2024
Caselines
Case No: 2024-147941
In
the matter between:
SHAWN
HITTLER
Applicant
and
ETHEKWINI
MUNICIPALITY
First
Respondent
SBONELO
MCHUNU (CHAIRPERSON)
Second
Respondent
BOKANG
MOLEFE (INITIATOR)
Third
Respondent
Heard
:
24
December 2024
Delivered
:
13 January 2025
Summary:
(Urgent - Application to declare
dismissal unlawful and to compel employer to abide by S 188A
pre-dismissal arbitration process
– Relief sought might follow
either the vindication of a contractual right , or the successful
review and setting aside of
dismissal decision – Applicant
failing to set out clearly a legal basis of their claim falling
within the court’s jurisdiction
– Application struck off
for lack of jurisdiction - Costs)
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an application for urgent final relief. The applicant, Mr S
Hittler
(‘Hittler’), applied to halt a disciplinary
enquiry initiated by his employer (‘the municipality’)
pending
the outcome of a pre-dismissal arbitration hearing under s
188A of the Labour Relations Act, 66 of 1995 (‘the LRA’)
under the auspices of the relevant bargaining council. At the time he
launched this application, the municipality had instituted
another
disciplinary inquiry against him on additional charges (‘the
second enquiry’), so he also sought alternative
relief in the
form of a declaration that any termination of his service implemented
by the employer before this application was
heard should be declared
unlawful.
[2]
The initial prayer for relief read:
1. That the matter be
enrolled as an urgent application and that the forms and service
provided for in the Rules of Court, to the
extent necessary be
dispensed with;
2.The in-house
disciplinary hearing instituted and continuing by the Respondents
against the Applicant is stayed pending the finalisation
and outcome
of the predismissal arbitration proceedings held at the Bargaining
Council under case numbers EMD052412 and EMD122416;
3.That the Respondents
are directed to comply with the ruling of the Commissioner dated 3
December converting the current disciplinary
proceedings to an
inquiry by Arbitrator in terms of section 188A and consolidating the
additional charges with the first charges;
4.That the Second and
Third Respondents be directed to pay costs of this application on an
attorney own client scale in line with
Scale C of the Amended Uniform
Rules of Court;
IN THE ALTERNATIVE
5.In the event that the
Respondent has terminated the Applicant's e contract prior to the
hearing to the hearing of this application
then seeks the following
relief:
5.1That the termination
of the Applicants' employment be declared unlawful;
5.2That the termination
of the Applicant's employment is set aside;
5.3That the Applicant is
reinstated in his employment with the First Respondent with
retrospective effect from date of termination
without loss of
remuneration or benefits.
6.The second and third
respondents are to pay the costs of this application on a scale of
attorney own client in accordance of scale
C of the Amended Uniform
rules of court.”
[3]
The application was launched on 11 December 2024 and was originally
enrolled
for hearing on 18 December 2024, before my sister, Judge
Prinsloo. Before the application could be heard on 18 December
two
fresh developments had taken place.
[4]
Firstly, the municipality had concluded the second inquiry and had
dismissed
the applicant on Friday afternoon, 13 December. Perversely,
in its answering affidavit to the applicant’s application,
filed
late on 17 December, the municipality did not disclose this
fact to the court. When the court asked
Mr Mbili,
counsel for
the municipality, why this fact had been omitted, he answered
cryptically that there was a ‘debate raging’
between
himself and those instructing him, whether the dismissal should have
been mentioned in the affidavit. It should have been
patently obvious
to all involved in that debate, that it was highly relevant to the
application and it was inexcusable to deliberately
omit it. After
some coaxing, which should not have been necessary, the
municipality’s counsel apologised to the court for
this
extraordinary omission, but still called it a ‘mistake’.
He claimed that, at the hearing before Judge Prinsloo,
he had
intended to point this out to the honourable judge, but the
applicant’s representative had stood up first to address
the
court, presumably to deal with the applicant’s request to
postpone the hearing in view of the urgent review counter-application
launched that morning by the municipality.
[5]
This counter-application was the second development which occurred
just before
the matter was heard. The counter-application took the
form of an urgent application to review two rulings of arbitrators of
the
bargaining council dated 5 June and 3 December 2024. These
rulings had the effect of converting the first and second internal
disciplinary
enquiries into pre-dismissal hearings under s 188A.
However, having caused the hearing on 18 December to be postponed,
when the
matter came before me on 24 December, the municipality
decided to remove the counter-application from the roll, after a
number
of patent defects, such as a failure to cite necessary
respondents, were raised.
[6]
The applicant filed an answering affidavit to respond to the counter
application
on 19 December and a ‘supplementary’
affidavit traversing the circumstances of his dismissal which had
taken place
after he filed his founding affidavit. There was no
objection made to the filing of the supplementary affidavit.
[7]
In view of his dismissal on 13 December 2024, the applicant amended
the relief
he sought to include the declaration that his dismissal
was unlawful and an order of reinstatement in his main relief instead
of
expressing it as a prayer for alternative relief.
[8]
The applicant filed heads of argument but none were filed by the
municipality.
Summary timeline of
pertinent events
[9]
On 25 May 2024, the applicant was issued with a notice to attend a
disciplinary
enquiry containing charges relating to procurement
records of a certain municipal contract. According to the applicant
the contract
in question is connected to a criminal case against
twenty-one accused, including a former mayor of the municipality, in
which
he had given evidence against the accused.
[10]
On 31 May
2024, he applied in terms of section 188 A (11)
[1]
of the LRA to the South African Local Government Bargaining Council
(SALGBC), for the enquiry to be conducted in a pre-dismissal
arbitration hearing before an arbitrator appointed by the council.
The SALGBC Disciplinary Procedure Agreement which defines the
rights
and obligations of employers and employees on disciplinary matters,
also incorporates s 188A (1) and (11) in clauses 19.1
and 19.2 of the
procedure.
[11]
The municipality opposed the conversion of the disciplinary enquiry.
On 5 June 2024, a senior SALGBC
arbitrator, Ms H Grobler, issued a
ruling that the applicant’s request to have his enquiry proceed
as a s 188A inquiry by
an arbitrator was approved.
[12]
The s 188A inquiry convened on 19 November 2024 chaired by another
SALGBC arbitration panellist. Both
parties were legally represented
in the inquiry. By agreement, the chairperson issued the
following ruling:
“
(a)The enquiry
would be adjourned to 24 January 2024;
(b)the parties would hold
a pre-arb meeting on or before 9 December 2024;
(c)the parties would
deliver a signed minute on or before 17 January 2025.”
[13]
Two days later, the applicant was summonsed to a meeting the
following day. On attending the
meeting on Friday, 22 November
he was issued with further disciplinary charges to be considered by a
disciplinary enquiry convening
on 4 December. The additional charges
related to his alleged procurement of forensic services, which he
claims relate to the very
same procurement contract with which the
original charges were concerned.
[14]
On Monday, 25 November, the applicant sought to persuade the
municipality that the additional charges
should simply be dealt with
in the same s 188A enquiry that was already underway. On 26 November,
the initiator responded.
He was adamant that the charges were
quite separate from the original charges and were based on different
evidence from the charges
before the S 188A enquiry, and accordingly
the enquiry would proceed. Facing this rebuff, the applicant
made a second referral
under s 188A to the bargaining council asking
that the additional charges to be considered on 4 December be
converted into a s188A
enquiry and consolidated with the original
that was underway.
[15]
The municipality opposed this application, but did not file its
answering affidavit timeously, ostensibly
because of difficulties
with the numbering of the applicant’s founding affidavit. On 3
December 2024, the chairperson of
the S188A enquiry had issued a
ruling that the hearing scheduled for 4 December 2024 should be
consolidated with the S188A inquiry
and the additional chares would
be incorporated in the enquiry.
[16]
Notwithstanding the ruling, the internal disciplinary enquiry set
down on the following day proceeded.
The chairperson of the
internal inquiry is the same chairperson who presided in the enquiry
into the original charges that were
referred to the S 188A inquiry.
Despite being advised of the bargaining council ruling of the
previous day, after postponing the
internal inquiry to consider how
to respond to the arbitrator’s ruling, the chairperson decided
to proceed with the internal
enquiry.
[17]
On 10 December 2024, the municipality advised that the enquiry would
resume the next day. However,
the applicant served the urgent
application by email on the respondent on 11 December 2024 and by
hand the following day.
[18]
Notwithstanding having had notice of the application, on 12 December
2024, the municipality gave the
applicant notice that the internal
enquiry would resume the next day. As before, the
applicant attended with his representative.
The chairperson refused
to stay the proceedings despite the pending application before the
court.
Argument and evaluation
[19]
It was not in issue that the application had been launched with
sufficient urgency. However, the municipality
argued that the
application had become moot since it had dismissed the applicant and
therefore there was nothing to interdict and
it had lost any urgency
it might have had. It also argued that, in any event, this
court had no jurisdiction to determine
the lawfulness of the
dismissal even if it was inclined to consider nullifying it.
[20]
The applicant argues that once the bargaining council was seized with
the disciplinary enquiries consolidated
in the form of a single s
188A inquiry, the municipality was not entitled to continue with the
second disciplinary enquiry. The
action of the municipality in
proceeding with the second inquiry and then dismissing him, in the
face of the arbitrator’s
ruling consolidating the charges in
the second enquiry with s 188A hearing that was soon to commence, was
a denial of his right
to have the disciplinary proceedings conducted
under that section.
[21]
The
applicant cited a number of authorities in support of his claim,
namely
Rabie
v Department of Trade and Industry and Another
[2]
,
South
African Transport and Allied Workers Union and Others v MSC Depots
(Pty) Ltd and Others
[3]
and
Mchuba
v Passenger Rail Agency of South Africa
.
[4]
To these may be added the decision in
Kubheka
v Member of The Executive Council: Human Settlements (Gauteng
Provincial Government) & another
(2021)
42 ILJ 1497 (LC).
[22]
The common features of all these cases were that there was a
pending pre-dismissal arbitration hearing under s 188A of the LRA,
and the applicants were all seeking urgent relief against their
respective employers to compel the employers to abide by the
pre-arbitration
process. However, the factual scenarios
differed in important respects.certain important respects the cases
concerned different
factual scenarios.
[23]
In the
Mchuba
and the
MSC Depots
the court
set aside dismissals which had been implemented following an internal
disciplinary process when s 188A enquiries were
pending. In
Rabie
and
Khubeka
, in-house disciplinary proceedings
were suspended pending the outcome of pre-dismissal arbitration
proceedings. In this instance,
because the municipality proceeded
with an internal inquiry and dismissed the applicant despite the
pending S 188A pre-dismissal
arbitration, the first two cases are
more relevant.
[24]
In
Mchuba
, the employer had elected to appoint Tokiso,
a private dispute resolution agency, to conduct a pre-dismissal
arbitration as contemplated
in s 188A. In doing so the employer was
acting in accordance with its disciplinary code and procedure which
provided for such an
alternative to an internal inquiry. The employee
consented to the process and the procedure was part and parcel of his
contract
of employment. The employer then withdrew from the process
on the pretext that Tokiso was not accredited to conduct the s 188A
enquiry. It then convened its own inquiry and dismissed the employee.
The court concluded that his dismissal was a breach of the
employer’s
obligation to deal with his alleged misconduct in the S 188A enquiry
which was part of the employee’s contract
of employment. The
court stated:
[16]
… By referring the matter to pre-dismissal arbitration, the
respondent lost the right to take decisions on the relevance
of
documents the applicant requested as it had handed the matter over to
Tokiso. When the tripartite agreement was reached, the
respondent had
no residual power to take any step against the applicant including
dismissing him in terms of its disciplinary code.
The respondent had
no right to abandon the pre-dismissal arbitration unilaterally. By
withdrawing from the pre-dismissal arbitration
agreement having
elected to deal with the allegations of misconduct against the
applicant by means of a pre-dismissal arbitration,
the respondent
acted in breach of the applicant's contract of employment. The
applicant is therefore entitled to the relief he
is seeking.”
Accordingly,
the court set aside the termination and reinstated the employee
retrospectively.
[25]
The court
in
Mchuba
endorsed
the approach adopted in
MSC
Depots
.
In the earlier case, the parties had been bound by their agreement to
invoke the S 188A process and a court order to the effect
that the
allegations of misconduct had to be determined in the arbitration
proceedings
[5]
. The court
found the employer was not entitled to abandon the process
unilaterally
[6]
. The court
concluded that:
“
[18]
In the absence of any right by the first respondent unilaterally to
withdraw from an agreement to refer the allegations of
misconduct
against the second and third applicants to an arbitration hearing,
the applicants are entitled to the relief they seek.
Their rights are
affirmed by the terms of the order of this court granted on 22 May
2012. In these circumstances, the dismissals
of the second and third
applicants stand to be set aside, and the first respondent ordered to
comply with its obligations in terms
of the agreement concluded in
terms of s 188A.”
[26]
Turning to the present matter, it differs from the two cases
discussed in that in those matters it
was the employer who invoked
the arbitration hearing process and was then prevented from resiling
from the process. In this instance
it is the applicant that initiated
the process using a referral under s 188(11). In addition,
until its belated and half-hearted
attempt to review the ruling of 5
June 2024 which determined that the disciplinary enquiry it had
initiated internally would henceforth
proceed as a pre-arbitration
hearing under s 188A, the municipality had in fact not contested that
the enquiry should proceed on
that basis.
[27]
The fact that the s188A proceeding was initiated by the applicant
under sub-section 188A(11), rather
than being initiated by the
employer under s188A(1) makes no difference to the legal status of
that proceeding
vis-à-vis
the legal status of
municipality’s internal process in terms of which it purported
to continue with a second enquiry and
in consequence of which it
claimed to have been able to dismiss the applicant. For present
purposes all that matters is that
there was a s188A proceeding
underway which included the same charges which the municipality
continued to pursue in its second
internal disciplinary enquiry.
[28]
In this case, it follows from the principles set out in
Mchuba
and
MSC Depots
that the municipality’s power to
determine the outcome of the disciplinary hearing in respect of all
charges brought against
the applicant lay solely in the hands of the
bargaining council arbitrator seized with the pre-dismissal
arbitration once the arbitrator’s
ruling had been issued on 3
December 2024. The disciplinary procedure which the municipality
pursued after that date was of no
legal consequence and the
chairperson no longer had any power to reach findings or decide a
sanction on behalf of the municipality.
The arbitrator was now the
only party legally empowered to perform that roll. Consequently, the
“dismissal” of the
applicant by the municipality on 13
December amounted to nothing more than the expression of a belief
that it was legally capable
of making such a decision.
[29]
The municipality’s eleventh-hour counter-application to review
and set aside the rulings of the
arbitrators which established and
expanded the scope of s 188A pre-dismissal arbitration in process,
was initiated because it recognised
that its conduct in continuing
with the second internal inquiry flew in the face of the those
rulings.
[30]
However, even if it is correct that the applicant’s dismissal
can be declared a nullity because
the municipality had no power to
proceed with the second internal inquiry, nor any power to
dismiss him for the misconduct
he had been charged with because that
would amount to usurping the powers now assigned to the arbitrator
chairing the pre-dismissal
arbitration, the municipality insists that
the Labour Court has no jurisdiction to pronounce on the issue in
this application.
[31]
It relies
on the principle established in
Steenkamp
& others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[7]
to the effect that this
court has no jurisdiction under the LRA to entertain claims that a
dismissal is unlawful because it was
in breach of a provision of the
LRA
[8]
. Nonetheless, the
termination of a contract of employment may declared unlawful if it
is a breach of an employment contract, by
virtue of this court’s
jurisdiction under s77(3) of the Basic Conditions of Employment Act,
(‘the BCEA’)
[9]
. In
addition, in
Hendricks
v Overstrand Municipality & another (Hendricks
),
the Labour Appeal Court held
“
In
sum therefore, the Labour Court has the power under s 158(1)(h) to
review the decision taken by a presiding officer of a
disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative G action; (ii)
in terms of the
common law in relation to domestic or contractual disciplinary
proceedings; or (iii) in accordance with the requirements
of the
constitutional principle of legality, such being grounds “permissible
in law”
[10]
[32]
Thus, the
applicant might have pleaded a case based on breach of contract,
seeking relief in the form of an order of specific performance,
or
might have applied on an urgent basis to review and set aside his
dismissal on grounds of illegality. The difficulty the
court
has is that in his affidavits and notice of motion, the applicant
simply claims that his dismissal is unlawful because the
municipality
was not entitled to run a disciplinary inquiry in parallel with the S
188A pre-dismissal arbitration. Although
he might well have
framed his claim as one that flowed from a breach of contract, he
made no reference to his employment contract
either in his prayers or
in his affidavits. Similarly, he did not set out a case to
urgently review and set aside the decision
to dismiss him based on
illegality. This is unfortunate, but the court cannot formulate
an applicant’s claim for them,
when their founding papers do
not give a clear indication of the legal nature of their claim. In
Phahlane v SA Police Service &
others
[11]
,
this court stated:
“
[6]
This court is a creature of statute. In terms of s 157(1), subject to
the Constitution and s 173, and except where the LRA provides
otherwise, the court has exclusive jurisdiction in respect of all
matters that elsewhere in terms of the LRA or any other law are
to be
determined by the court. In other words, a party referring a dispute
to this court for adjudication must necessarily point
to a provision
of the LRA or some other law that provides for that dispute to be
determined by this court. It is incumbent on an
applicant referring a
matter to this court for adjudication to identify the provision in
the LRA, or any other law, which confers
jurisdiction on this court
to entertain the claim.
Jurisdiction is
to be determined strictly on the basis of the applicant’s
pleadings, the merits of the claim are not material
at this point.
What is required is a determination of the legal basis for the claim,
and then an assessment of whether the court
has jurisdiction over it
(see Chirwa v Transnet Ltd & others
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008)
29 ILJ 73 (CC) at para 155, Gcaba v Minister for Safety &
Security & others
2010 (1) SA 238
(CC); (2010) 31 ILJ 296 (CC) at
para 75).”
(emphasis
added)
[33]
Similarly, the LAC has reiterated the principle:
[21]
In any event, the conclusion of the Labour Court on the question of
jurisdiction cannot be faulted. The appellant bore the
onus to prove,
inter alia, that the Labour Court had jurisdiction to hear and
determine the matter. This implies that the appellant
should have
pleaded the basis for jurisdiction and proved it. Since the appellant
did neither, the Labour Court was justified in
dismissing the
application.”
[12]
[34]
In this matter, the legal basis for the claim that his dismissal is
unlawful has not been pleaded other
than to assert that there is
conflict between the municipality conducting a parallel inquiry to
that of the pre-dismissal arbitration
and that the municipality’s
conduct is unlawful. A bald claim of unlawfulness is insufficient to
establish jurisdiction.
In the cases relied on by the applicant, the
applicant in those matters clearly pleaded that the employer’s
conduct was a
contractual breach. He has not done so in this
instance, nor has he framed his case as a legality review, so the
court cannot
be sure whether he is relying on a contractual right or
a right to review set aside the dismissal. Consequently, the
applicant
has failed to establish a basis for the court’s
jurisdiction and his application falls to be dismissed.
Costs
[35]
I have already commented disapprovingly of about the way the
municipality was not candid with the court
about its dismissal of the
applicant. In addition, its belated application to review the two
arbitral rulings necessitated the
postponement of the application. It
then abandoned this without prior notice to the applicant when the
application was re-enrolled.
In keeping with the principles of law
and fairness, it is appropriate in these circumstances that the
municipality must bear the
wasted costs of the applicant for the
postponement and its costs of filing an answering affidavit to
opposed the counter-application
and such costs should be paid on a
punitive scale.
Order
1.
The application is heard as a matter of urgency and any
non-compliance with the
forms and service provided for in the Rules
of Court is condoned.
2. The
application is struck off the roll for lack of jurisdiction.
3.
The First Respondent must pay the Applicant’s wasted
costs incurred in the postponement of the application to 24 December
2024, and the Applicant’s costs incurred in drafting and filing
an answering affidavit to the First Respondent’s
counter-application
and preparing argument relating thereto, with all
costs being calculated on an attorney own client scale in line with
Scale C of
the Amended Uniform Rules of the High Court.
.
R Lagrange
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant
G Kirby-Hirst
of MacGregor Erasmus Attorneys Inc.
For
the Respondents
B Mbili
instructed by S D Moloi & Associates Inc.
[1]
The pertinent provisions of s188A are:
“
(1)
An employer may, with the consent of the employee or in accordance
with a collective agreement, request a council, an accredited
agency
or the Commission to appoint an arbitrator to conduct an inquiry
into allegations about the conduct or capacity of that
employee.
…
(11)
Despite subsection (1), if an employee alleges in good faith that
the holding of an inquiry contravenes the Protected Disclosures
Act,
2000 (Act 26 of 2000), that employee or the employer may require
that an inquiry be conducted in terms of this section into
allegations by the employer into the conduct or capacity of the
employee.”
[2]
(J515/18) [2018] ZALCJHB 78 (5 March 2018)
[3]
(2013) 34
ILJ
706
(LC) at para 11.
[4]
[2016] 6 BLLR 612
(LC) at para 16.
[5]
MSC
Depots
at
paragraph 14.
[6]
MSC
Depots
at
paragraph 15.
[7]
2016 (3) SA 251
(CC); (2016) 37
ILJ
564 (CC)
[8]
Viz
:
“
[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.” 114 In South African
Maritime Safety Authority v McKenzie
[2010] ZASCA 2
;
2010 (3) SA 601
(SCA); (2010) 31 ILJ 529 (SCA); the Supreme Court of Appeal, through
Wallis AJA held that one could not simply transpose rights
from the
LRA into the contract of employment. 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.”
[9]
SA
Municipal Workers Union on behalf of Morwe v Tswaing Local
Municipality & others
(2022)
43
ILJ
2754 (LAC) at paragraphs 11 to 13
[10]
(2015) 36
ILJ
163
(LAC) at para 29.
[11]
(2021) 42
ILJ
569 (LC) at para 6
[12]
SA
Municipal Workers Union on behalf of Makofane v Matjhabeng
Municipality & another
(2023)
44
ILJ
2692
(LAC)