Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J895/00
2001-06-17
In the matter between
LENNOX N GARANE Applicant
and
PLANACT Respondent
________________________________________________________________
J U D G M E N T
Delivered on 18 June 2001
________________________________________________________________
REVELAS J:
1.The applicant was dismissed from the respondent's employ after he had been
found guilty of misconduct at a disciplinary inquiry held by the
respondent. The notice calling upon the applicant to attend a
disciplinary hearing, formulates the misconduct charge as follows:
"The Bloemfontein Local Council has brought to my attention a letter you had sent
to them informing them of your withdrawal as project leader of the "Building
Communities/Council Relations for Co-operative Governments" project, a copy of
which has been sent to me. The letter in question was faxed to them on 3
November 1999.
The tone and character of your letter in my mind constitutes a serious
violation of organisational discipline. Under such you are charged with the
following misconduct:
• breach of organisational discipline:
• intentionally negligently undermining the credibility and integrity of the
organisation and board of directors.
Planact views this misconduct in a serious light and will be calling a
disciplinary hearing with a view to seeking the appropriate disciplinary action
including a dismissal."
2.It is common cause that the applicant wrote a rather emotional letter to
the Bloemfontein Local Council resigning as project leader from the
Council’s project referred to above. In this letter reference is made
of the fact that the applicant was involved in an accident in his own
uninsured vehicle. He expressed in the letter, his great unhappiness
and dismay with the manner in which the respondent responded to his
financial position, which had become precarious as a result of the
accident. He felt that the respondent should have compensated him for
his losses.
3.After his dismissal, the applicant referred a dispute to the Commission for
Conciliation, Mediation and Arbitration, (“the CCMA”), where
conciliation failed and the applicant referred his dispute to the Labour
Court for adjudication.
4.The applicant's case is that the dismissal was automatically unfair, as he
had the right to write the letter in question and to express himself in
the manner in which he did therein. The applicant relies on Section
187(1)(d) read with Section 5(2)(c)(v) of the Labour Relations Act 66 of
1995, (“the act”) in support of this contention.
5.The respondent raised a point in limine, that the applicant has incorrectly
categorised his dismissal dispute as one that is automatically unfair
and that the dispute should be dealt with by the CCMA in terms of
Section 191(5)(a) of the Act, as the reason for his dismissal was for
misconduct.
6.I am informed by the respondent's counsel, Mr Buirsky, that when the matter
had previously come before a CCMA commissioner for arbitration, but that
the hearing collapsed due to a technical reason. The certificate of
outcome signed by the commissioner of the CCMA who dealt with the
matter, refers to an " alleged unfair dismissal for misconduct ". I
therefore assume that at the CCMA, the view that the Labour Court should
adjudicate the matter, as opposed to it being arbitrated, did not
prevail.
7.The question that I need to decide is, whether or not the matter should be
dealt with by this Court, for want of jurisdiction, or whether the
matter should be referred to the CCMA.
8.This enquiry necessitates reference to the sections relied upon by the
applicant.
9.Section 187(1)(d) of the Act reads:
"A dismissal is automatically unfair if the employer in dismissing the employee
acts contrary to Section 5 or if the reason for the dismissal is (b) that the
employee took action or indicated an intention to take action against the employer
by -
(i) exercising any right conferred by this act [my emphasis];
(ii) participating in proceedings in terms of this act.
10.The relevant portion of section 5 (section 5(2)(c)(v) of the Act on which
the applicant seeks to rely, provides as follows:
"Without limiting the general protection conferred by sub-section (1), no person
may do or threaten to do any of the following - ......
(c) prejudice an employee or a person seeking employment because of past,
present or anticipated - ......
(v) disclosure of information that the employee is lawfully entitled or required to
give to another person."
11.Firstly, the meaning of ” rights conferred by this act ” needs to be
examined. In Brassey’s Commentary on the Labour Relations Act, at A29
the learned author describes " rights conferred by this act " as those
that, typically, would be the right to participate in the formation of
and other activities of a trade union. (Section 4) The right to
represent employees as trade union representatives (Section 14) or in a
workplace forum (Chapter V of the Act), and to invoke the dispute
resolution process of the Act. The list is not exhaustive.
12.Section 5(2)(c)(v) deals with the disclosure of information. This
information generally relates to collective issues as between employers
and trade unions. The information referred to therein is in the nature
of information as envisaged, but not limited to, by Section 16
(collective bargaining) and Section 142 (powers of commissioners),
Section 89(3) (information to workplace forum) of the Act.
13.In my view, the right to disclosure of information envisaged in these
sections do not confer a right to write letters or complaining about an
employer's behaviour to a third party. Such a right is clearly not
protected by Section 5(2)(c)(v).
14.On the facts of this case it is also not a conferred right as envisaged by
Section 187(1)(d). Writing a letter of complaint to a third party also
does not include participation in proceedings in terms of the Act. The
reason for the alleged unfair dismissal falls squarely within the
concept of misconduct. That is apparent from the nature of the charges
levelled against the applicant.
15.It may very well be that there is merit in the applicant's contention,
that he was unfairly dismissed and it may be that dismissal was not the
appropriate sanction, but this Court does not have the necessary
jurisdiction to hear the matter.
16.Section 157(5) of the Act limit, the Labour Court's jurisdiction.
17.The subsection stipulates as follows:
17.The subsection stipulates as follows:
"Except as provided for in Section 158(2) the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this act requires the dispute to
be resolved through arbitration."
Section 158(2) of the Act provides for a procedure where:
"The Court may with the consent of the parties and if it is expedient to do so,
continue the proceedings with the court sitting as an arbitrator."
18.The respondent has not consented to continue with the proceedings for the
Labour Court sitting as an arbitrator. No evidence has been lead and
since the issue is raised as a point in limine , Section 158(2) is also
not applicable.
19.In terms of Section 191(5)(a) of the Act, if the dismissal was for alleged
misconduct, the CCMA should arbitrate the dispute if conciliation fails.
20.In South American Motor Industry Employers Association and Another v Numsa
and Others [1997] 9 1157 (LAC) Myburgh J P, at 116O held that:
"Except as provided for by Section 158(2) the Labour Court cannot assume nor can
parties by agreement confer jurisdiction on the labour court to determine a dispute
which falls to be resolved by the commission by conciliation or arbitration.
Therefore if the dispute is about misconduct it has to be arbitrated by the CCMA
and not adjudicated by the labour court."
21.The true substance of the dispute in this matter is about an alleged
unfair dismissal for misconduct. Consequently I should make an order to
the effect that the matter be referred to the CCMA.
22.In my view costs should follow the result in this matter. The applicant
persisted in his view that the matter should be heard by the Labour
Court without advancing any good grounds why it should and he has
claimed amounts for damages which this Court is not in a position to
award.
23.Consequently I make the following order:
1. The matter is referred to the CCMA to be arbitrated.
2. The applicant is to pay the respondent's costs of this application.
________________
E. Revelas