IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
REPORTABLE
CASE NO D71/05
DATE HEARD 2005/02/11
DATE OF JUDGMENT 2005/02/21
In the matter between
H W JONKER APPLICANT
and
OKHAHLAMBA MUNICIPALITY AND OTHERS
RESPONDENTS
JUDGMENT DELIVERED BY
THE HONOURABLE MADAM JUSTICE PILLAY
ON 21 FEBRUARY 2005
ON BEHALF OF APPLICANT: ADV P BLOMKAMP
ON BEHALF OF RESPONDENTS: ADV P SCHUMANN
D71/05-NB/CD - 3 - JUDGMENT
JUDGMENT 21 FEBRUARY 2005
PILLAY D, J
[1] The applicant seeks to interdict the first respondent
finally from proceeding with a disciplinary inquiry into
the conduct of the applicant.
[2] The first respondent had suspended the applicant in May
2003. After certain exchanges between the
representatives of the parties, the applicant was
reinstated and he tendered his services on 1
December 2003. He was then demoted.
[3] He referred the dispute to the CCMA. An award was
issued and set aside on review on 3 December 2004.
The reviewing Judge ordered that the applicant be
reinstated to his position of Municipal Manager with
effect from 22 May 2003. He remarked, in passing,
that he did not think that the
"chances of disciplining the applicant have
lapsed ... If the award is corrected the third
respondent will still retain the chance of
disciplining the applicant if it wants to
proceed with the disciplinary proceedings
against the applicant."
[4] On 10 December 2004 the first respondent advised the
applicant that it intended to proceed with the
disciplinary inquiry and invited the latter to
collaborate about dates and other matters pertaining
to the hearing. By letter dated 21 December 2004
the inquiry was set for 10 and 11 January 2005. The
applicant's counsel indicated that it was not prepared
to agree those dates. On 22 December 2004 the first
respondent confirmed with the applicant's attorney
that, as counsel for the applicant was not available on
10 and 11 January 2005, the inquiry would be set for
the dates proposed by the applicant, that is 24 to
28 January 2005.
[5] On 25 January 2005 the applicant applied for a
postponement of the hearing, despite having agreed
to the date. The chairperson of the inquiry refused
the application for postponement. The applicant's
current attorneys of record, who were also on record
for the applicant at the inquiry, withdrew. The
applicant renewed his application for a postponement
and secured for himself a day to prepare.
[6] On 27 January 2005 a medical doctor certified that the
applicant needed to be hospitalised for depression.
The next day the applicant launched this application
with the assistance of his attorneys who had, by then,
reinstated themselves.
Jurisdiction
[7] The contract of employment relied on by the applicant
requires that disputes or differences be submitted to
binding negotiations and arbitration. Mr Blomkamp
conceded that the clause had escaped the applicant's
attention. He nevertheless persisted that the
application was warranted and that any order could
be made pending the arbitration.
[8] The applicant has also referred a dispute to the CCMA in
D71/05-NB/CD - 5 - JUDGMENT
terms of section 136(2)(b) and (c). The principal
reason for this application is that the CCMA process
would not yield a quick remedy. The same cannot be
said of a private arbitration. If the applicant referred
the dispute to arbitration on 10 December 2004 it
could have been finalised long before this hearing.
[9] The applicant has not advanced any reason why the
matter should not have been referred to private
arbitration. He has failed to discharge the onus of
showing that the dispute ought not to be referred to
arbitration. (Nick's Fishmonger Holdings (Pty) Limited
v Da Souza 2003 (2) SA 278 (SE).) A Court should be
slow to accept jurisdiction if the parties have agreed
to arbitrate, unless there is a "strong case" with
"compelling reasons". ( University of Stellenbosch v J
A Louw (Pty) Limited 1983 (4) SA 321 (A).)
[10] The court, accordingly, lacks jurisdiction to hear the
matter.
Urgency
[11] The applicant was aware as early as 10 December 2004
of the first respondent's intention to proceed afresh
with the disciplinary inquiry. This application was
launched on 28 January 2005. During the intervening
period, the applicant's conduct was dilatory and
anything but honourable. In so far as the matter
became urgent, it is as a result of his own doing. The
explanation that the Christmas shut-down created
difficulties in launching the application earlier is
weak. The applicant had enough time before and
after the Christmas shut-down to bring the
application if he genuinely believed that it was
urgent. If it was not convenient for him or his legal
representative to launch the application earlier, there
is no reason why the first respondent or the court
should suffer the inconvenience of an urgent
application.
A clear right
[12] The applicant contends that the holding of the inquiry at
this stage is, firstly, an unfair labour practice and,
secondly, a material breach of clause 19 of the
contract of employment. Section 186(2) of the
Labour Relations Act No 66 of 1995 ("the LRA")
provides:
"(2)Unfair labour practice means any unfair act
or omission that arises between an
employer and an employee involving -
.....
(b)the unfair suspension of an employee or
any other unfair disciplinary action,
short of dismissal, in respect of an
employee.
(c)a failure or refusal by an employer to
reinstate or re-employ a former
employee in terms of any
agreement."
[13] The applicant relies on these provisions because the
review judgment of the Labour Court reinstated the
applicant to his position of Municipal Manager with
effect from 22 May 2003 on the same conditions and
D71/05-NB/CD - 7 - JUDGMENT
benefits as existed at the time of his suspension.
[14] The review judgment, which was issued on 3 December
2004, did not preclude the first respondent from
holding the disciplinary inquiry. The first respondent
proceeded expeditiously and resolved on 9 December
2004 to hold the inquiry.
[15] The applicant has not made out a case that he is
suspended unfairly, nor is the intended disciplinary
inquiry "action short of dismissal". Disciplinary action
has not been taken against the applicant yet.
Furthermore, he is an employee, not a former
employee. No case of an unfair labour practice in
terms of sub-section (b) or (c) has therefore been
made out.
[16] Turning to the alleged breach of contract, clause 19 of
the contract sets out the procedure and time limits
for disciplinary action. The procedure involves
reporting of an "accusation", a decision by the
executive committee that the accusation warrants
disciplinary hearing, the appointment of a disciplinary
committee and prosecutor, the service of a charge
sheet within ten working days and notice of the
hearing, which must be within 20 days of the notice.
[17] The applicant contends, firstly, that the executive council
and not the executive committee decided that
disciplinary action should be instituted. This is
refuted by the first respondent, who is supported by a
copy of a resolution by the executive committee
dated 9 December 2004 that it took the decision to
institute disciplinary action.
[18] Secondly, the applicant contends that it is an implied
term of the contract that the executive committee
should have heard him before deciding to institute
disciplinary action. In my view, this is not a
necessary or reasonable inference to be drawn from
the terms of the contract. I agree with the first
respondent that it is tantamount to requiring
prosecutors to give accused persons a hearing before
charging them.
[19] Thirdly, the applicant contends that the time limit for
holding the inquiry has expired and the first
respondent lost its contractual rights to discipline
him. Nothing in the terms of the contract suggests
that the first respondent would lose its right to
discipline.
[20] As I see it, the procedure and time limits are a
commitment to deal with discipline expeditiously, and
they serve as a guide as to how this can be
accomplished. To hold that the procedure and the
time limits are written in stone and immutable must
necessarily imply that the first respondent elected to
abandon or waive its wide powers of discipline, which
the law merely requires it to exercise in a reasonable
manner. Why the first respondent would contract
away such substantial rights in favour of the applicant
is unfathomable. The waiver or abandonment by the
first respondent of its right to discipline the applicant
D71/05-NB/CD - 9 - JUDGMENT
cannot necessarily or reasonably be inferred from the
contract. Neither the terms of the contract nor the
conduct of the first respondent’s respresentatives
amount to an unequivocal waiver of the right to
discipline the applicant. ( RAF v Mothupi 2000 (4)
SA 38 (SCA).)
[21] The unfair labour practice claim is based on an alleged
breach of section 186(2)(b) and (c) of the LRA. It is
not the applicant's contention that the breach of
contract is per se an unfair labour practice. That is
not an unfair labour practice as defined in section 186
of the LRA. Whether it amounts to an unfair labour
practice under the constitutional right to fair labour
practices, (section 23(1) of the Constitution of the
Republic of South Africa Act No 106 of 1996), was not
argued by the applicant. It did arise in the course of
argument for the first respondent. The language of
the constitutional right to fair labour practices is open
textured. Regard must be had to the LRA to give
context to the constitutional rights. ( NAPTOSA v The
MEC for Education; 2001 (2) SA112 (C) NEHAWU v
UCT (2003) 24 ILJ 95 (CC))
[22] The Legislature elected to define unfair labour practice in
relation to very specific employer conduct (section
186 of the LRA). One of the objectives for doing so is
to provide certainty and clarity about what amounts
to an unfair labour practice and to avoid the ad hoc-
ism which plagued the jurisprudence under the LRA of
1956. Another important objective is to limit the right
to particular unfair labour practices to employees
only. Hence employers do not have an unfair labour
practice claim under section 186 of the LRA. But in
NEHAWU the Constitutional Court held that an unfair
dismissal is an unfair labour practice. I understand
that declaration to be in the context of the open-
textured language of the Constitution. By extension,
any violation of the LRA could amount to an unfair
labour practice under the Constitution. Thus a breach
of an employer's statutory rights could amount to an
unfair labour practice under the Constitution even
though it is not recognised as such under the LRA.
Similarly, a breach of the common law contract of
employment, in so far as it has not been supplanted
by legislation, may also be actionable under the
Constitution. Remedies for such breaches must be
derived from the LRA itself, however.
[23] The interface between the Constitution, labour
legislation and the common law depends on the right
claimed and how it is pleaded. If a claim is pleaded
as a breach of contract, the Courts are duty-bound to
decide it on that basis subject to these caveats:
Firstly the Courts have a duty to develop the common
law to promote the spirit, purport and objects of the
Bill of Rights. ( section 39(2) of the Bill; Grobler v
Naspers, PLC and Others (2004) 25 ILJ 439 (C).)
[24] Secondly, a common law breach of contract could also
be a statutory violation. A court will need to enquire
whether the statute supplants the common law. If it
does, the statutory procedures and remedies must
apply. Thus an employee who pleads retrenchment,
D71/05-NB/CD - 11 - JUDGMENT
should not be allowed a claim under the common law
breach of contract as that situation is regulated by
section 189 of the LRA. In Fedlife Assurance ltd v
Wolfaardt (2001) 22 ILJ 2407 (SCA) the court first
established that the common law breach of a fixed-
term contract was neither prohibited nor regulated by
statute before awarding a common law remedy. The
primacy of the law of contract prevailed over the
employer's defence that the employee had been
retrenched two years into the five-year contract. This
approach, the court held, gave effect to the
constitutional values promoted by the fair labour
practice clause.
[25] Thirdly, a common law breach of the contract of
employment remains an employment dispute. As
such, sight should not be lost of the primary object of
the LRA. For instance, the defence of retrenchment
to a claim for breach of a fixed-term contract should
be investigated for the socio-economic impact of any
decision the court might make. Assuming that the
need to retrench is genuine, an award of the balance
of the contract period as compensation to a single
white-collar worker might deplete the limited
resources of a small employer to such an extent that
blue-collar workers are left with little for their own
severance pay.
[26] Lastly, irrespective of whether a right is claimed under
the common law or legislation it must be consistent
with the overarching authority of the Constitution
(Fedlife).
[27] The observation of these and possibly other caveats,
could stem the potential development of two parallel
streams of labour law, one under the common law
and the other under labour legislation, one through
the general civil courts and the other through the
specialist labour courts. Litigants will frame their
cases opportunistically by weighing and contrasting
the risks and costs against the benefits of High Court
and Labour Court litigation. The courts are straight-
jacketed into responding to disputes on the basis of
how they are pleaded and presented. Practitioners
should plead and present cases in ways that enable
the courts to develop labour law as one system of law
under the Constitution. Labour and employment law
under the Constitution compels a mindshift from a
linear common law approach to a polycentric socio-
economic approach. After all, labour rights fall under
the broad family of socio-economic rights. Not to
treat them as such would defeat the aims of the
Constitution.
[28] In this case, as mentioned above, the applicant has not
expressly pleaded the breach of contract as an unfair
labour practice. Even if it did so, it cannot succeed as
the first respondent has not breached the contract.
The inquiry was scheduled in less than ten days after
the executive committee decided to institute
disciplinary proceedings. It was at the request of the
applicant that it rescheduled for later in January 2005.
The first respondent complied with the agreed
procedure and the time limits.
D71/05-NB/CD - 13 - JUDGMENT
[29] Whether disciplinary action is fair must be assessed not
only from the terms of a contract but also from what
is actually done to enable the applicant to have a
proper hearing. ( Highveld District Council v CCMA
and Others (2003) 24 ILJ 517 (LAC).) In Denel (EDMS)
BPK v Vorster (2004) 4 SA 481 (SCA ) the respondent
employee pleaded a breach of a contract that
imported into its terms provisions of the disciplinary
code and procedure. The employer's defence that
another procedure, which was also fair, was applied
was rejected by the Supreme Court of Appeal. The
facts in Denel are distinguishable from Highveld. The
breach of the agreed procedure might arguably be
more material than in Highveld. It is regrettable
though that the SCA did not refer at all to Highveld.
An opportunity to guide the lower courts has been
sorely missed.
[30] There may be cases where the breach of the contract
may be so fundamental that whatever procedure is
actually followed could never render the hearing fair.
If I am wrong in holding in this case that there has not
been a breach of the contract, the applicant's
objection to the procedure adopted is about timing
and time limits. In the context of this case they are
not fundamental to fair procedure. The applicant has
not demonstrated that he has a clear right. On the
contrary, his right to fair procedure has to be
balanced with the first respondent's prerogative and,
indeed, public duty to conduct an inquiry into the
serious allegations of fraud in an organ of State.
[31] At no stage has the applicant taken the Court into his
confidence and offered an explanation as to why,
substantively, the charges against him are unfair.
Injury actually committed or reasonably apprehended
[32] In the light of Highveld the applicant has acted
precipitately in launching this application before the
inquiry is actually held. As a matter of labour law, the
applicant has to show actual prejudice arising from
the procedure followed. A procedural irregularity that
does not result in prejudice is not actionable.
[33] For the purposes of this interdict the applicant has failed
to show actual or potential prejudice. Employees
may be stressed simply because an inquiry is
pending. In so far as the Applicant seeks to rely on
the alleged breach of the contract or any procedural
irregularity in holding the inquiry as the cause of his
stress, he has to do more than attach a medical
certificate to his application. Besides, it seems to me
that the medical certificate was a stratagem to secure
a postponement of the disciplinary inquiry.
Alternative remedy
[34] Applications to interdict disciplinary proceedings are
granted in the most exceptional circumstances.
(Mensaris v University of Westville and Others (2000)
21 ILJ 1818 (LC); Molefe v Dihlabeng Local
Municipality (2004) 25 ILJ 680 (O).)
[35] The applicant has the alternative and appropriate
D71/05-NB/CD - 15 - JUDGMENT
remedy of private arbitration. If, at the end of the
inquiry, it transpires it was procedurally unfair the
Applicant will have a claim for compensation. By
initiating this application, the Applicant unnecessarily
assumes the onus of proving the unfairness and
unlawfulness of the procedure, an onus which strictly
falls on the second respondent if it decides to dismiss
the applicant.
[36] The applicant has not set out any exceptional
circumstances. On the contrary, it is a constitutional
imperative and a matter of public interest that
complaints of fraud and corruption in an organ of
State be investigated.(section 195 (1) and (2) of the
Constitution)
[37] In all the circumstances, the application is dismissed
with costs.
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