40 TH ANNUAL
in association with SALLR seminars 4ocelebrations TH
1.1
OF
Unreported case no CA14/2022 (2023) 44 ILJ 2665 (LAC) [2023] 10 BLLR 991 (LAC) (2023) 34
347 (LAC)
SA Medical Association Trade Union obo Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others
Unreported case no J1773/2022 (2023) 44 ILJ 1779 (LC) [2023] 6 BLLR 575 (LC) (2023) 34 SALLR 354 (LC)
The Passenger Rail Agency of South Africa and Nine Others v Onica Martha Ngoye and Two Others 15
Unreported case no JA78/21 (2024) 35 SALLR 120 (LAC)
and Others
Unreported case no 65/2022 (2023) 44 ILJ 1479 (SCA) [2023] 7 BLLR 626 (SCA) (2023) 34 SALLR 371 (SCA)
3.1
Member of the Executive Council for Education, KwaZulu-Natal v
Unreported case no 1188/2021 (2023) 44 ILJ 2447 (SCA)
[2023] 9 BLLR 863 (SCA) (2023) 34 SALLR 370 (SCA)
Unreported case no 1297/2022 (2024) 45 ILJ 479 (SCA) (2024) 35 SALLR 133 (SCA)
4.1.1.1 BREATHALYSER
Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others
Unreported case no JR312/2020 (2023) 44 ILJ 2013 (LC) (2023) 34 SALLR 367 (LC)
4.1.1.2
Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another
Unreported case no JS562/23 (2023) 44 ILJ 2297 (LC) (2023) 34 SALLR 365 (LC)
4.1.1.3
4.1.1.4
Murray & Roberts Cementation (Pty) Ltd v Association of Mineworkers and Construction Union obo Dube and Others
Unreported case no JA96/2022 (2024) 45 ILJ 276 (LAC) [2024] 1 BLLR 23 (LAC) (2024) 35 SALLR 116 (LAC)
National Lotteries Commission v Mafonjo and Another
Unreported case no JR48/2020 (2023) 44 ILJ 1991 (LC) [2023] 9 BLLR 970 (LC) (2023) 34 SALLR 362 (LC)
4.1.1.5
National Union of Metalworkers of SA and Another v CCMA and Others
Unreported case no PR10/22 (2023) 44 ILJ 1575 (LC) (2023) 34 SALLR 363 (LC)
4.1.1.6
Hollywood Sportsbook Gauteng v CCMA and Others
Unreported case no JR2519/21 (2024) 35 SALLR 125 (LC)
4.1.2
4.1.2.1 DOCTRINE OF COMMON PURPOSE: APPLICATION OF PARITY PRINCIPLE ALLOWS FOR
National Union of Public Service and Allied Workers obo Lutendo and Others v CCMA
Unreported case no J2086/20 and JR2111/20 (2024) 45 ILJ 579 (LC) [2024] 3 BLLR 333 (LC) (2024) 35 SALLR 127 (LC)
4.1.3 DISMISSALS ON THE GROUNDS OF INCAPACITY POOR
4.1.4 DISMISSALS
4.1.4.1
(Pty) Ltd v CCMA and Others
Unreported case no JR616/18 (2023) 44 ILJ 2226 (LC) [2023] 11 BLLR 1188 (LC) (2023) 34 SALLR 358 (LC)
4.1.5
4.1.5.1 CONTRACTUAL CLAIM TO SEVERANCE PAY IN EXCESS OF STATUTORY MINIMUM: DISPUTE TO BE DETERMINED IN TERMS OF s41(4) OF THE BCEA
National Union of Metalworkers of SA and Another v Scaw SA (Pty) Ltd
Unreported case no 36203/20 (2023) 44 ILJ 1807 (GJ) [2023] 8 BLLR 852 (GJ) (2023) 34 SALLR 346 (GJ)
4.1.5.2 REQUIREMENT OF CONCILIATION BEFORE PERMITTED TO CHALLENGE SUBSTANTIVE FAIRNESS IN A s189A OF THE LRA SCENARIO
National Union of Metalworkers of SA obo Members v SAA Technical (Pty) Ltd
Unreported case no JS30/2022 (2023) 44 ILJ 2000 (LC) (2023) 34 SALLR 364 (LC)
4.1.5.3 TEST TO DETERMINE WHETHER RETRENCHMENT SUBSEQUENT TO MERGER IS CAUSALLY LINKED TO THE MERGER OR MERGER-SPECIFIC
Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another
Unreported case no CCT192/22 (2024) 35 SALLR 112 (CC)
4.1.5.4 s189A OF THE LRA: COMPENSATION IN TERMS OF s189A(13)(d) OF THE LRA IS A STANDALONE REMEDY AND CAN BE CONSOLIDATED WITH A DISPUTE ABOUT SUBSTANTIVE FAIRNESS OF ADISMISSAL REFERRED TO THE LABOUR COURT IN TERMS OF s191(5)(b)(ii) OF THE LRA
Regenesys Management (Pty) Ltd t/a Regenesys v Ilungo and Others 140
Unreported case no CCT220/22 (2024) 35 SALLR 113 (CC)
4.1.6 DISMISSALS IN TERMS OF s186(1) OF THE LRA
4.1.6.1 s186(1)(e) OF THE LRA: CONTINUED EMPLOYMENT MADE INTOLERABLE 165
Sanlam Life Insurance Ltd v Mogomatsi and Others 165
Unreported case no CA12/2022 (2023) 44 ILJ 2516 (LAC) [2023] 11 BLLR 1166 (LAC) (2023) 34 SALLR 353 (LAC)
4.1.7 AUTOMATICALLY UNFAIR DISMISSALS
4.1.7.1 SECTION 187(1)(f) OF THE LRA READ WITH s6(1) OF THE EEA: TESTING NON-NEGATIVE OR POSITIVE FOR CANNABIS
Bernadette Enever v Barloworld Equipment South Africa (A division of Barloworld South Africa (Pty) Ltd 169
Unreported case no JA86/22 (2024) 35 SALLR 115 (LAC)
4.1.7.2 APPLICATION OF s187(2)(b) OF THE LRA: NORMAL OR AGREED RETIREMENT
v
Unreported case no JS1040/20 (2024) 45 ILJ 333 (LC) [2024] 2 BLLR 194 (LC) (2024) 35 SALLR 129 (LC)
4.1.8
4.2
4.2.1 s186(2)(a) OF THE LRA: BENEFITS DISPUTE
Small Enterprise Development Agency v CCMA and Others
Unreported case no JR52/2021 (2024) 45 ILJ 920 (LC) (2024) 35 SALLR 130 (LC)
4.2.2 s186(2)(b) OF THE LRA: UNFAIR SUSPENSION
4.2.2.1 National Public Service Workers Union obo Lamprecht v Department of Health KwaZulu-Natal
Unreported case no PSHS 105-23/24
4.2.2.2 Strydom v Arcelormittal SA
Unreported case no J1764/23 (2024) 45 ILJ 931 (LC) (2024) 35 SALLR 131 (LC)
4.3.1.1 AUTHORITY OF BRANCH OFFICIAL TO ACT ON BEHALF OF A POLITICAL PARTY; REQUIREMENTS FOR OSTENSIBLE AUTHORITY RESTATED
Economic Freedom Fighters v Brightstone Trading 3 CC t/a Gordon Road Spar and Others 207
Unreported case no JA129/21 (2023) 44 ILJ 2679 (LAC) [2023] 11 BLLR 1148 (LAC) (2023) 34 SALLR 349 (LAC)
4.3.1.2 POLITICAL PARTY CLAIMING THAT ITS MEMBERS DID NOT ACT WITH ITS AUTHORITY OR MANDATE WHEN ENGAGING IN UNLAWFUL PROTEST ACTION, BUT FAILED TO INVESTIGATE MATTER OR TAKING ACTION AGAINST ITS MEMBERS; REQUIREMENTS FOR FINAL INTERDICT RESTATED
Gas Giants CC and Another v Economic Freedom Fighters and Others
Unreported case no 13850/22 (2023) 44 ILJ 2800 (GP) [2023] 12 BLLR 1334 (GP) (2023) 34 SALLR 345 (GP)
4.3.2
4.3.2.1
4.3.2.1.1 INTERPRETATION AND LEGAL NATURE OF TRADE UNION CONSTITUTION; SUSPENSION OF TRADE UNION MEMBER
National Union of Metalworkers of SA and Others v Ntlokose
Unreported case no JA84/2022 (2024) 45 ILJ 495 (LAC) [2024] 3 BLLR 260 (LAC) (2024) 35 SALLR 117 (LAC)
4.3.2.2
4.3.2.2.1 REGISTRATION OF TRADE UNION IN TERMS OF s95(8) OF THE LRA; ‘MODERN TRADE UNION’ CATERING FOR NON-STANDARD EMPLOYMENT RELATIONSHIPS
Simunye Workers Forum v Registrar of Labour Relations
Unreported case no J1375/2022 (2023) 44 ILJ 2021 (LC) [2023] 10 BLLR 1071 (LC) (2023) 34 SALLR 368 (LC)
4.3.2.3
4.3.2.3.1 ADMISSION OF MEMBERS OUTSIDE REGISTERED SCOPE ULTRA VIRES AND INVALID
Afgri Animal Feeds v National Union of Metalworkers of South Africa and Others
Unreported case no CCT/188/22 (2024) 35 SALLR 169 (CC)
4.3.3
4.3.3.1.1 WHERE MINORITY TRADE UNION IS A BARGAINING AGENT, MEMBERS OF SUCH UNION NOT REQUIRED TO PAY AGENCY FEES UNLESS EXPRESS TERMS TO THE CONTRARY IN AGENCY SHOP AGREEMENT
Association of Mineworkers and Construction Union v UASA (formerly named United Association of South Africa)
Unreported case no DA13/22 (2023) 44 ILJ 2479 (LAC) [2023] 1 BLLR 1134 (LAC) (2023) 34 SALLR 348 (LAC)
4.3.3.2 s33A(9) OF THE LRA
4.3.3.2.1 INTEREST ON AN AMOUNT A PERSON IS OBLIGED TO PAY IN TERMS OF A COLLECTIVE AGREEMENT; NOT IMPOSING IN DUPLUM PRINCIPLE; NO GENERAL PRINCIPLE THAT COMPOUND INTEREST AUTOMATICALLY APPLICABLE TO MORA INTEREST
Coetzee and Others v Member of the Executive Council for the Department of Health, Western Cape Provincial Government and Others
Unreported case no C276/21 (2024) 45 ILJ 104 (LC) (2024) 35 SALLR 123 (LC)
4.3.3.3 COLLECTIVE AGREEMENT AS SETTLEMENT AGREEMENT IN FULL AND FINAL SETTLEMENT OF LARGE-SCALE
4.3.3.3.1 DURESS, MISREPRESENTATION, COERCION OR OTHER UNDUE INFLUENCE CONSIDERED TO DETERMINE WHETHER AGREEMENT IS TO BE SET ASIDE
GB Engineering (Pty) Ltd v Mbongo and Others
Unreported case no JA75/2022 (2024) 45 ILJ 267 (LAC) [2024] 1 BLLR 14 (LAC) (2024) 35 SALLR 115 (LAC)
4.3.3.4
4.3.3.4.1 ORGANISATIONAL RIGHTS GRANTED TO MINORITY UNION OR COALITION OF MINORITY UNIONS THAT DO NOT MEET THE THRESHOLD REQUIREMENT BUT REPRESENTS A SIGNIFICANT INTEREST OR SUBSTANTIAL NUMBER OF EMPLOYEES IN THE WORKPLACE
Anglo American Coal SA v CCMA and Others
Unreported case no JR2115/20 (2023) 44 ILJ 1500 (LC) (2023) 34 SALLR 355 (LC)
4.4.1.1 s68(1)(b) OF THE LRA: REFERRING TO CONDUCT THAT IS UNLAWFUL EVEN IF ARISES DURING THE COURSE OF A PROTECTED STRIKE
South African Commercial Catering and Allied Workers Union v Massmart Holding Limited
Unreported case no JA119/2022 (2024) 35 SALLR 119 (LAC)
4.4.1.2 s187(1)(d)(i) READ WITH s5(2)(c)(iii) OF THE LRA: DISMISSAL OF UNION MEMBERS DURING AN UNPROTECTED STRIKE FOR MISCONDUCT
South African Custodial Management (Pty) Ltd and Another v Union for Police, Security and Corrections Organisation (UPSCO) obo Makatu and 15 Others
Unreported case no JS383/18 [2024] 2 BLLR 200 (LC) (2024) 35 SALLR 369 (LC)
4.4.2
4.5
4.5.1.1
Mobile Telephone Networks (Pty) Ltd and Others v CCI SA (Umhlanga) (Pty) Ltd and Others
Unreported case no JA12/2023 (2023) 44 ILJ 1906 (LAC) [2023] 10 BLLR 1006 (LAC) (2023) 34 SALLR 350 (LAC)
4.5.2.1 African Online Operations (Mauritius) Ltd v Scanlon and Another
Unreported case no CA1/2023 (2024) 45 ILJ 790 (LAC) (2024) 35 SALLR 114 (LAC)
Sadan and Another v Workforce Staffing (Pty) Ltd
Unreported case nos JA38/23 and JA88/23 (2023) 44 ILJ 2506 (LAC) (2023) 34 SALLR 352 (LAC)
5.1.2
Torrente and Another v Grant Monaghan and Associates Incorporated
Unreported case no JA 25/43 and JA45/23 (2024) 45 ILJ 798 (LAC) (2023) 35 SALLR 121 (LAC)
5.2.1 CONTRACTUAL CLAUSE EXCLUDING VICARIOUS LIABILITY OF EMPLOYER COVERING INTENTIONAL CONDUCT, SUCH AS
Fujitsu Services Core (Pty) Ltd v Schenker SA (Pty) Ltd
Unreported case no CCT32/22 (2023) 44 ILJ 2391 (CC) (2023) 34 SALLR 343 (CC)
6.1 ARBITRATOR OF BARGAINING COUNCIL RECUSING HIMSELF/HERSELF AND CONSEQUENCE
Minister of Correctional Services v Mashiya and Others
Unreported case no JR2740/2013 (2023) 44 ILJ 1536 (LC) (2023) 34 SALLR 126 (LC)
6.2 s130 OF THE LRA; GOVERNING BODY OF THE CCMA POWER TO WITHDRAW ACCREDITATION GRANTED TO BARGAINING
Fetakgomo Greater Tubatse Local Municipality v South African Local Government Bargaining Council and Others
Unreported case no JR1832/19 (2023) 44 ILJ 1960 (LC) (2023) 34 SALLR 359 (LC)
6.3 BARGAINING COUNCIL LACKS JURISDICTION TO TAX AN EMPLOYEE’S BILL OF COSTS; LACKS JURISDICTION
Prince v Beaufort West Local Municipality
Unreported case no WCP082116
6.4 JURISDICTIONAL RULING THAT CCMA HAS POWER TO CONCILIATE A DISPUTE NOT REGARDED AS FINAL RULING
Democratised Transport Logistics and Allied Workers Union obo Tshwili v Bidvest Services (Pty) Ltd t/a Bidvest Prestige Cleaning Services
Unreported case no C725/2021 (2023) 44 ILJ 2727 (LC) [2023] 11 BLLR 1183 (LC) (2023) 34 SALLR 356 (LC) 7.
7.1 s158(1)(c) OF THE LRA: LABOUR COURT POWER TO MAKE A SETTLEMENT AGREEMENT AN ORDER OF COURT, WHEN EXERCISING ITS DISCRETION ACCORDING TO LAW AND FAIRNESS
Ephraim Mogale Local Municipality v Hlongwane NO and Another
Unreported case no JR1888/2019 (2023) 44 ILJ 1949 (LC)
7.2
[2023] 9 BLLR 898 (LC) (2023) 34 SALLR 357 (LC)
s158(1)(h) OF THE LRA: LABOUR COURT NOT EMPOWERED TO REVIEW THE DECISION OF AN EMPLOYER IN THE PUBLIC SECTOR MADE WHEN APPROACHED BY AN EMPLOYEE WHO WAS THE CHAIRPERSON OF A DISCIPLINARY ENQUIRY
Makhonjwa v Director-General of Department of Justice and Constitutional Development and Others
Unreported case no JR998/19 (2023) 44 ILJ 1530 (LC) (2023) 34 ILJ 361 (LC)
9.1
s77(3): ENTITLEMENT TO COMMISSION AFTER
Redelinghuys v Adapt IT (Pty) Ltd
Unreported case no C199/2019 (2023) 44 ILJ 1590 (LC) (2023) 34 SALLR 366 (LC)
9.2 s25 (MATERNITY LEAVE), s25A (PARENTAL LEAVE), s25B (ADOPTION LEAVE) AND s25C (COMMISSIONING PARENTAL LEAVE) DECLARED UNCONSTITUTIONAL AND INVALID
Van Wyk and Others v Minister of Employment and Labour (Centre for Human Rights, University of Pretoria and Others as amici curiae)
Unreported case no 17842/22 (2024) 45 ILJ 194 (GJ) [2024] 1 BLLR 93 (GJ) (2024) 35 SALLR 134 (GJ)
9.3 s34(1): DEDUCTIONS FROM WAGES WHERE EMPLOYER ERRONEOUSLY PAID EMPLOYEES
9.3.1 North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members
Unreported case no JA17/2002 (2023) 44 ILJ 1919 (LAC) [2023] 8 BLLR 745 (LAC) (2023) 34 SALLR 351 (LAC)
9.3.2 Mhlontlo Local Municipality and Others v Ngcangula and Another
Unreported case no 1154/2022 (2024) 45 ILJ 775 (SCA) (2024) 35 SALLR 132 (SCA)
10.1 s12: PENSION FUND MAY NOT APPLY RETROSPECTIVE RULE AMENDMENT PRIOR TO REGISTRATION BY THE REGISTRAR OF PENSION FUNDS
Mudau v Municipal Employees’ Pension Fund and Others (Institute for Retirement Funds Africa NPC as amicus curiae)
Unreported case no CCT142/22 (2023) 44 ILJ 2641 (CC)
[2023] 11 BLLR 1109 (CC) (2023) 34 SALLR 344 (CC)
11.1 HARASSMENT AND/OR UNFAIR DISCRIMINATION ON AN ARBITRARY GROUND
11.1.1
HARASSMENT IN TERMS OF s6(3) OF THE EEA AND ITEM 4 OF THE CODE OF GOOD PRACTICE ON THE PREVENTION AND ELIMINATION OF HARASSMENT IN THE WORKPLACE; UNFAIR DISCRIMINATION ON AN ARBITRATION GROUND
La Foy v Department of Justice and Constitutional Development and Others
Unreported case no J1952/2017 (2023) 44 ILJ 2731 (LC) [2023] 12 BLLR 1275 (LC) (2023) 34 SALLR 360 (LC)
11.1.2 RETRACTING OF OFFER OF EMPLOYMENT BECAUSE OF EMPLOYEE’S
Unreported case no P18/24 (2024) 35 SALLR 124 (LC)
Association of Mineworkers and Construction Union obo Members v Aberdare Cables (Pty) Ltd and Others
Unreported case no P135/2021 (2024) 45 ILJ 511 (LC) (2024) 35 SALLR 122 (LC)
BONUS TO BE INCLUDED IN CALCULATION OF EMPLOYEE’S HOURLY RATE; PROVIDENT FUND CONTRIBUTIONS PAID BY EMPLOYER ON BEHALF OF EMPLOYEE INCLUDED IN CALCULATION OF
Unreported case no JA85/2022 (2024) 45 ILJ 71 (LAC) [2024] 1 BLLR 32 (LAC) (2024) 35 SALLR 118 (LAC)
13.1
13.1.1 EXTENSION OF PROHIBITION BEYOND MUNICIPAL MANAGERS AND MANAGERS ACCOUNTABLE TO THEM UNCONSTITUTIONAL; SUCH PROHIBITION NOT REQUIRED TO ACHIEVE THE OBJECTIVES OF
and Another
Unreported case no J945/2023 (2024) 45 ILJ 595 (LC) [2024] 2 BLLR 221 (LC) (2024) 35 SALLR 128 (LC)
A. INTRODUCTION
The present seminar workbook contains a case law reviewand analysis of important decisions handed down by the Commission for Conciliation, Mediation and Arbitration (CCMA), various bargaining councils, the labour court, the labour appeal court, the high court, the supreme court of appeal and the constitutional court under the Labour Relations Act 66 of 1995, as amended (the LRA), the Constitution of the Republic of South Africa 108 of 1996 (the Constitution), various other selected statutory provisions and, lastly, the common law, during the preceding 12-month period.
Attention, in this workbook, will be focussed on key issues that have emerged in recent decisions in the following main areas:
(a) contractual rights and obligations: Basic Conditions of Employment Act 75 of 1997 (BCEA):
(i) unlawful termination of employment contract: termination without following due process of consultation required contractually and for no valid reason;
(ii) application to declare unlawful employer’s records reflecting dismissal and that it should read resignation;
(iii) circumstances upon which specific performance will not be granted in unlawful dismissal matters;
(b) civil jurisdiction: settlement agreement settling dismissal dispute between employer and employees;
(c) delict:
(i) delictual claim cannot co-exist with a claim under the LRA; in the case of an alleged omission, the enquiry into wrongfulness entails a determination whether or not there is a legal duty on the employer to act positively to prevent harm;
(ii) delictual accountability where contractual arrangement has been unlawfully interfered with;
(d) statutory rights and obligations: LRA
(i) dismissals:
(aa) individual misconduct:
(I) breathalyser test results versus laboratory test results;
(II) employee electing not to testify at a disciplinary enquiry for fear of self-incrimination in a criminal investigation and criminal trial;
(III) requirements relating to a charge sheet utilised at a disciplinary enquiry and subsequently at arbitration;
(IV) the sanction of conditionally suspended dismissal;
(V) the tests for negligence and gross negligence;
(VI) derivative misconduct;
(bb) collective misconduct: doctrine of common purpose; application of parity principle allows for some inconsistency;
(cc) dismissals on the grounds of incapacity poor work performance;
(dd) dismissals on the grounds of incapacity ill-health or injury: integrity of medical certificates;
(ee) dismissals on the grounds of operational requirements:
(I) contractual claim to severance pay in excess of statutory minimum; dispute to be determined in terms of s41(4) of the BCEA;
(II) requirement of conciliation before permitted to challenge substantive fairness in a s189A of the LRA scenario;
(III) test to determine whether retrenchment subsequent to merger is causally linked to the merger or merger-specific;
(IV) s189A of the LRA: compensation in terms of s189A(13)(d) of the LRA is a standalone remedy and can be consolidated with a dispute about substantive fairness of a dismissal referred to the labour court in terms of s191(5)(b)(ii) of the LRA;
(ff) dismissals in terms of s186(1) of the LRA: s186(1)(e) of the LRA –continued employment made intolerable;
(gg) automatically unfair dismissals:
(I) s187(1)(f) of the LRA read with s6(1) of the EEA: testing nonnegative or positive for cannabis whilst on duty;
(II) application of s187(2)(b) of the LRA – normal or agreed retirement age for persons employed in that capacity;
(hh) miscellaneous terminations;
(ii) unfair labour practices in terms of s186(2) of the LRA:
(aa) s186(2)(a) of the LRA: benefits dispute;
(bb) s186(2)(b) of the LRA: unfair suspension;
(iii) collective bargaining:
(aa) role of political parties:
(I) authority of branch official to act on behalf of a political party; requirements for ostensible authority restated;
(II) political party claiming that its members did not act with its authority or mandate when engaging in unlawful protest action, but failed to investigate matter or take action against its members; requirements for final interdict restated;
(bb) trade unions/employers’ organisations:
(I) trade union constitution: interpretation and legal nature of trade union constitution; suspension of trade union member invalid, unconstitutional and unenforceable;
(II) registration by registrar of labour relations: registration of trade union in terms of s95(8) of the LRA; ‘modern trade union’ catering for non-standard employment relationships;
(III) s161 and s200 of the LRA: admission of members outside the registered scope ultra vires and invalid;
(cc) collective agreements:
(I) agency shop agreement: where minority trade union is a bargaining agent, members of such union not required to pay agency fee unless express terms to the contrary in agency shop agreement;
(II) s33A(9) of the LRA: interest on an amount a person is obliged to pay in terms of a collective agreement; not imposing in duplum principle; no general principle that compound interest automatically applicable to mora interest;
(III) collective agreement as settlement agreement in full and final settlement of large-scale retrenchment: duress, misrepresentation, coercion or other undue influence considered to determine whether agreement is to be set aside;
(IV) organisational rights: organisational rights granted to minority union or coalition of minority unions that do not meet the threshold requirement but represent a significant interest or substantial number of employees in the workplace;
(iv) industrial action:
(aa) strikes;
(bb) lock-outs;
(cc) picketing;
(v) section 197 of the LRA:
(aa) change in service providers – lapsing of call centre service provider contract and granting contract to another service provider;
(bb) insolvency of the old employer;
(vi) miscellaneous topics:
(aa) restraint of trade agreements:
(I) reasonableness of period of restraint; reasonableness of territorial restriction;
(II) cutting down of restriction;
(bb) vicarious liability: contractual clause excluding vicarious liability of employer covering intentional conduct, such as theft, by such employer’s employees;
(vii) powers and functions of the CCMA and bargaining councils:
(aa) arbitrator of bargaining council recusing himself/herself and consequence of new arbitrator not starting de novo;
(bb) s130 of the LRA; governing body of the CCMA power to withdraw accreditation granted to bargaining councils;
(cc) bargaining council lacks jurisdiction to tax an employee’s bill of costs; lacks jurisdiction to award attorney and client costs;
(dd) jurisdictional ruling that CCMA has power to conciliate a dispute not regarded as final ruling in respect of its power to arbitrate such dispute;
(viii) powers and functions of the labour court:
(aa) s158(1)(c) of the LRA: labour court power to make a settlement agreement an order of court, when exercising its discretion according to law and fairness;
(bb) s158(1)(h) of the LRA: labour court not empowered to review the decision of an employer in the public sector made when approached by an employee who was the chairperson of a disciplinary enquiry;
(ix) powers and functions of the labour appeal court;
(e) other statutory provisions that received judicial attention:
(i) BCEA:
(aa) s77(3): entitlement to commission after employment relationship ended;
(bb) s25 (maternity leave), s25A (parental leave), s25B (adoption leave) and s25C (commissioning parental leave) declared unconstitutional and invalid;
(cc) s34(1): deductions from wages where employer erroneously paid employees during a strike;
(ii) Pension Funds Act 24 of 1956 (PFA): s12 – pension fund may not apply retrospective rule amendment prior to registration by the registrar of pension funds;
(iii) Employment Equity Act 55 of 1998 (EEA):
(aa) harassment and/or unfair discrimination on an arbitrary ground:
(I) harassment in terms of s6(3) of the EEA and item 4 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace; unfair discrimination on an arbitrary ground;
(II) retracting of offer of employment because of employee’s past criminal record;
(bb) equal pay for equal work disputes: different rates for old and new employees not constituting a ground of unfair discrimination;
(iv) National Minimum Wage Act 9 of 2018 (NMWA): s5(1)(c): calculation of wagescontractual bonus to be included in calculation of employee’s hourly rate; provident fund contributions paid by employer on behalf of employee included in calculation of employee’s hourly rate; and
(v) Local Government: Municipal Systems Act 32 of 2000 (LGMSA): s71 of the LGMSA banned all municipal employees from holding political office in a political party - extension of prohibition beyond municipal managers and managers accountable to them unconstitutional; such prohibition not required to achieve the objectives of professional municipal management and improved service delivery.
This seminar workbook also contains the following features, namely:
(a) a table of cases; and
(b) a table of literature.
The seminar workbook, once again, contains a summary of labour-related legislation covering the last 12 months.
It is to be noted that this year’s seminar also deals with a number of topics not covered in the workbook but set out in the PowerPoint presentations that delegates receive and these include the SALLR earnings guidelines for the corporate, formal, informal and non-corporate sectors.
B. CONTRACTUAL RIGHTS AND OBLIGATIONS
1. BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997 (BCEA)
1.1 UNLAWFUL TERMINATION OF EMPLOYMENT CONTRACT: TERMINATION WITHOUT FOLLOWING DUE PROCESS OF CONSULTATION REQUIRED CONTRACTUALLY AND FOR NO VALID REASON
Acting National Commissioner, Department of Correctional Services and Others v Ndara Unreported case no CA14/2022 (2023) 44 ILJ 2665 (LAC) [2023] 10 BLLR 991 (LAC) (2023) 34 SALLR 347 (LAC)
(a) What approach did the labour appeal court take, with reference to SA Revenue Service v CCMA [2016] ZACC 38; 2017 (1) SA 547 (CC), to determine the test as to whether or not a party has perempted its right to pursue a matter further?
(b) It is settled law that, in motion proceedings, an applicant must stand or fall by its notice of motion and the averments made in its founding affidavit. With reference to National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) and the well-established Plascon-Evans Paints principle, what is the approach confirmed by the labour appeal court as to whether or not, in motion proceedings, a final order is to be granted where there are disputes of fact?
(c) The scenario is as follows: an employer makes provision for the termination of an employment contract, subject to the provisions of the LRA and, after consultation between the parties, by giving one month’s written notice. How did the labour appeal court view such notice of termination without the employer embarking on a consultation process, in answering the question whether or not such termination was lawful or not?
(d) On what basis did the labour appeal court confirm that the primary remedy where a contract has been unlawfully terminated is specific performance (i e restoration of the status quo ante)?
(e) The labour appeal court had to deal with the scenario where the labour court found the termination of employment unlawful, did not unconditionally restore the status quo ante, but made a qualified order to the following extent: ‘in order that due consultation can take place as to the early termination of the five-year contract between the parties’. On what basis did the labour appeal court find, with reference to, inter alia, National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC), that such remedy was not permissible?
(f) The scenario is as follows: an employer allegedly unlawfully makes deductions from an employee’s gross salary. The employee in motion proceedings seeks
an order declaring such deductions unlawful and in contravention of s34 of the BCEA. What is the approach applied by the labour appeal court to determine whether or not such an order should be granted where there are disputes of fact between the parties in the above regard and the employer’s denial was not bold nor uncreditworthy, neither raised fictitious disputes of fact, nor was it palpably implausible, far-fetched or clearly untenable (with reference to the PlasconEvans Paints principles)?
INTRODUCTION
appeal against judgments and orders of the LC: employment of employee found to be unlawful and of no force and effect, restoring status quo ante for ‘due consultation [to] take place as to the early termination of the five-year employment contract between the parties’; furthermore, ordering the employee to be reimbursed for the monies unlawfully deducted from his salary
1. The present appeal was against the judgment and orders of the labour court (per Rabkin-Naicker J) in which the termination of the employment of the respondent, Mr Mzukisi Lubabalo Ndara, was found to be unlawful and of no force and effect, and the status quo ante restored for ‘due consultation [to] take place as to the early termination of the five-year employment contract between the parties’.
2. In addition, the first and second appellants, the acting national commissioner of the Department of Correctional Services and the deputy minister of justice and correctional services, respectively, were ordered to reimburse the respondent the sum of R254 468,44 unlawfully deducted from his salary, within 10 days of receipt of the order, with the appellants being held jointly and severally liable for the respondent’s costs. The respondent cross-appealed against the labour court’s decision to dismiss his application to amend his pleadings.
PERTINENT FACTS OF THE CASE
employee indicated desire to leave employment of the deputy minister of justice and correctional services; such deputy minister, apparently ito clause 3 of the employment contract, decided to terminate employment with 1 month’s notice
3. On 11 March 2022, the first appellant, the acting national commissioner for the Department of Correctional Services, informed the respondent in writing that:
‘1. You have been employed as Director Technical Specialist (level 13) in the office of the Deputy Minister of Justice and Correctional Services linked to the term of the contract of the Deputy Minister signed on 24 June 2019.
2. Following your request for a transfer, I informed you in writing on 8 January 2022 that I am willing to accommodate you within the Department of Correctional Services as a Director (level 13) linked to the term of office of the Deputy Minister and invited you to apply for such transfer on your own time and cost in writing. You never applied and such transfer is therefore no longer an option.
3. You further indicated your desire to leave your employment with the Deputy Minister. The Deputy Minister has similarly indicated that the working relationship between yourself and the Deputy Minister has broken down irretrievably.
4. The Deputy Minister has therefore in terms of clause 3 of your employment contract decided to terminate your employment with one month’s notice. Your last day of service will therefore be on 30 April 2022.
5. You are required to liaise with the DCS human resource office (head office) to finalise your termination…’
4. Following receipt of this letter, on or about 5 April 2022, the respondent instituted urgent proceedings in the labour court against the appellants.
5. In Part B of its notice of motion, the respondent sought, inter alia, a declaration that the decision of the acting commissioner and deputy minister, purportedly to terminate the respondent’s contract with effect from 30 April 2022, was unlawful, null and void ab initio with no force and effect for want of compliance with clause 3.3 of the contract of employment entered into on 25 June 2019 between the parties, read together with s14 and s17 of the Public Service Act 103 of 1994 (PSA) and s23(1) of the Constitution, 1996, with an order setting aside such decision.
6. In Part C of its notice of motion, the respondent sought an order declaring that the conduct of the Government and the Department in deducting R254 468.44 from his gross salary as head of office was unlawful and in contravention of s34 of the BCEA, alternatively, that the deduction of R922 364,44 from the respondent’s gross salary as special advisor was unlawful and in contravention of s34. An order was sought directing the Government and the Department to repay such amounts, with costs sought against the appellants.
FINDINGS OF THE LABOUR APPEAL COURT
Savage AJA (Molahlehi ADJP and Musi JA concurring)
whether the appellants had deliberately and undoubtedly abandoned or perempted their right to appeal against the decision of LC?
7. The first issue that arose in the appeal was whether the appellants had ‘deliberately and undoubtedly abandoned or perempted their right of appeal’ (Dabner v South Africa Railways and Harbours 1920 AD 583 (Dabner))
SARS (CC): onus to establish peremption entails that indubitably and necessarily the conclusion is that there has been an abandonment of such right – not established in casu, even though steps taken to implement LC orders prior to pursuing appeal
8. The onus to establish peremption is discharged only when the conduct or communication relied on points ‘indubitablyand necessarilyto the conclusion’ that there has been an abandonment of the right to appeal and a resignation to the unfavourable judgment or order (SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38; 2017 (1) SA 549 (CC); (2017) 38 ILJ 97 (CC); [2017] 1 BLLR 8 (CC) (SARS)).
9. There was no dispute that steps had been taken by the Department to implement the orders of the labour court prior to the appeal being pursued in this matter. Little explanation was advanced by the appellants as to why this occurred if they intended to appeal the matter, although some blame was placed on the conduct of junior employees within the Department who had apparently been unaware of the consequences of their actions.
10. However, distinguishable from the decision in SARS, the facts did not indicate that the relevant officials within the Department had taken a deliberate and indubitable decision not to appeal against the order of the labour court. There had been no express indication that an appeal would not be pursued and no indication that the appellants’ lawyers, or other employees or officials who were familiar with the matter, had deliberately and expressly stated as much. Having regard to the facts advanced, the respondent had therefore been unable to show that the appellants had, through their conduct, perempted their right of appeal.
even if found that there had been deliberate and undoubted abandonment or peremption, doctrine not absolute: a court can overlook acquiescence where broader interests of justice otherwise would not be served, with overriding policy
considerations capable of operating against enforcement of peremption (SANDU (SCA))
11. In any event, even if it were found that there had been a deliberate and undoubted abandonment or peremption by the appellants, the application of the doctrine is not absolute (Minister of Defence v South African National Defence Force Union [2012] ZASCA 110 (SANDU), at [23]). It remains open to a court to overlook acquiescence where the broader interests of justice would otherwise not be served, with overriding policy considerations capable of militating against the enforcement of peremption against an appellant’s right of appeal (SARS supra).
12. On the facts of the present case, the interests of justice, in any event, would weigh strongly against a finding of peremption.
motion proceedings: applicant must stand or fall by its notice of motion and the averments made in its founding affidavit – impermissible for a case to be made out in reply for the first time (SARFU (CC); Betlane (CC); Van der Merwe (CC))
13. Turning to the merits of the appeal, the ordinary rule in motion proceedings is that an applicant must stand or fall by its notice of motion and the averments made in its founding affidavit (President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) (SARFU), at paragraph [150]; Betlane v Shelly Court CC [2010] ZACC 23; 2011 (1) SA 388 (CC); 2011 (3) BCLR 264 (CC) (Betlane), at paragraph [29], with reference to Van der Merwe and another v Taylor NO and Others [2007] ZACC 16; 2008 (1) SA 1 (CC); 2007 (11) BCLR 1167 (CC) (Van der Merwe), at paragraph [122] and SARFU supra, at paragraph [150]), with it being impermissible for a case to be made out in reply for the first time (Betlane, at paragraph [29], with reference to Van der Merwe, at paragraph 122; SARFU, at paragraph [150]; Director of Hospital Services v Mistry 1979 (1) SA 626 (A), at 636A-B; and Bayat and Others v Hansa and Another 1955 (3) SA 547 (N), at 553D).
Zuma (SCA): generally, motion proceedings cannot be used to resolve factual disputes because they are not designed to determine probabilities – a final order can only be granted if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order; this is not applicable if: (i) the respondent’s version consists of bald or uncreditworthy denials; (ii) raises fictitious disputes of fact; (iii) is palpably implausible; (iv) farfetched; or (v) so clearly untenable that the court is justified in rejecting them merely on the papers
14. As was made clear, in National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) (Zuma), at paragraph [26]:
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that, where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) (Plascon-Evans) 634-5; Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) (Fakie NO) at paragraph [55]; Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (Thint), at paragraphs [8] to [10].)’
15. The appellants were aware that the dispute before the court for adjudication concerned whether the termination of the respondent’s employment, as such, and the deductions allegedly made from his remuneration were lawful (Zuma supra, at paragraphs [15] and [17]; Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA), at paragraph [13])
16. This was so despite the respondent’s incorrect recordal of his post, both in the notice of motion and in his founding affidavit.
17. Since the technical specialist contract had been entered into between the parties on or about 5 August 2021, by which time the head of office contract had by agreement been cancelled and was of no force and effect, there could be no suggestion that the technical specialist contract, backdated to 24 June 2019, had been novated by the conclusion of the head of office contract on 25 June 2019 (Tauber v Von Abo 1984 (4) SA 482 (ECD), at 485C)
relevant clause of employment contract: subject to PSA and LRA, either party may, after consultation and agreement, terminate the contract before expiry of an original term of office or extended term, by giving the other party 1 month’s notice of termination in writing
18. Clause 3.3 of the technical specialist employment contract (as was also recorded in the head of office contract) stated that:
‘3.3 Subject to the provisions of the Act, and the Labour Relations Act, 1995, either party may, after consultation and agreement, terminate the Contract before the expiry of an original term of office or an extended term of office, by giving to the other party one month’s notice of termination, which notice shall –
3.3.1 be given in writing…’
LAC: LC correct in finding that termination was unlawful and contrary to contract’s express terms – notice was issued without contractually required consultation and not founded on any other reasons contemplated in LRA
19. Notice of termination of the respondent’s employment from the post of technical specialist was unlawful, given that no proper process had preceded it. The termination notice was issued without any consultation and was not founded on any of the other reasons contemplated in the LRA. Since the right to be consulted was expressly provided for by the contract, it followed that the contract could not have been lawfully terminated on notice by the acting commissioner in the absence of such consultation (South African Maritime Safety Authority v McKenzie [2010] ZASCA 2; 2010 (3) SA 601 (SCA); [2010] 3 All SA 1 (SCA); (2010) 31 ILJ 529 (SCA); [2010] 5 BLLR 488 (SCA), at paragraphs [32] to [33] and [55] to [58] (SA Maritime Safety Authority)).
20. In giving notice of termination on 11 March 2022, the acting commissioner, therefore, acted unlawfully and in breach of the contract’s express terms. In finding as much, the labour court could not be faulted
specific performance is a primary and not a supplementary remedy for breach of contract – not granted for reasons of misconduct and intolerability (Moyo (HC))
21. Having found the termination of the respondent’s contract to be unlawful, the labour court exercised its discretion to order the restoration of the status quo ante. In doing so, it correctly distinguished the matter from the decision in Old Mutual Ltd and others v Moyo and Another [2020] ZAGPJHC 1; [2020] 4 BLLR 401 (GJ); [2020] 2 All SA 261 (GJ); (2020) 41 ILJ 1085 (GJ), in which specific performance was not granted for expressed reasons of both misconduct and intolerability. Specific performance is a primary and not a supplementary remedy for breach of contract (Santos Professional Football Club (Pty) Ltd v Igesund and Another 2003 (5) SA 73 (C); [2002] 10 BLLR 1017 (C))
as far as possible, a court will give effect to selection of litigant to claim specific performance while retaining discretion to refuse such claim and allow damages (Masetlha (CC))
22. A court will, as far as possible, give effect to the choice exercised by a litigant to claim specific performance while retaining the discretion to refuse such a claim and allow damages. Each case must be judged in the light of its own circumstances (see Haynes v King Williams Town Municipality 1951 (2) SA 371 (A), at 378 to 379; Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC), Moyane v Ramaphosa [2018] ZAGPPHC 835; [2019] 1 All SA 718 (GP) and Gama v Transnet SOC Limited [2018] ZALCJHB 348)
23. No reason was advanced by the appellants why the labour court, having found his termination to be unlawful, should exercise its discretion against the respondent to refuse his claim for reinstatement. Furthermore, on appeal, the appellants did not contend for any grounds that would warrant interference by the labour appeal court with the exercise of that discretion (see, for example, National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (National Coalition), at paragraph [11])
24. However, despite the labour court’s order that the status quo ante be restored, interference with such order by the labour appeal court was nevertheless warranted in that an unqualified order had not been made but rather one ‘in order that due consultation can take place as to the early termination of the five-year contract between the parties’.
LAC: LC, in making status quo ante order subject to consultation to take place as to early termination of 5-year contract, failed to appreciate that employee was entitled to unqualified reinstatement as primary remedy (National Coalition (CC))
25. In ordering as much, the labour court failed to direct itself to the relevant facts and principles, including that the respondent had been entitled to unqualified reinstatement as the primary remedy. In finding differently, the labour court reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles (National Coalition supra, at paragraph [11])
26. Turning to the claim for repayment of deductions allegedly unlawfully made from the respondent’s gross salary, the labour court found that the appellants had failed to make out a case on the papers regarding why such deductions were made. However, since clear disputes of fact existed between the parties on the issue, a final order could only have been made if the facts averred by the applicant (the respondent in this appeal) had been admitted by the respondents (the appellants in this appeal) and, together with the facts alleged by the latter, such an order was justified. The appellants’ denial had not been bald or uncreditworthy, nor had it raised fictitious disputes of fact, or been palpably implausible, far-fetched or clearly untenable (Plascon-Evans supra at 634-5; Fakie NO supra, at paragraph [55]; Thint supra, at paragraphs [8] to [10])
LAC: LC could not properly have resolved dispute of fact between parties on the papers regarding repayment of deductions claimed; issue should have been referred for hearing of oral evidence
27. The labour court could not properly have resolved the dispute of fact between the parties on the papers and its orders made concerning the repayment of the deductions claimed could not be sustained and had to be set aside. With a clear dispute of fact in existence between the parties, the issue should properly have been referred for the hearing of oral evidence. On appeal, such an order was consequently warranted.
order
28. The appeal was upheld in part, with paragraphs 2, 3 and 4 of the order of the labour court set aside and replaced with the following orders:
‘2. The status quo ante is restored, with the applicant to be reinstated retrospectively with immediate effect into the position of Director: Technical Specialist (level 13) in the office of the Deputy Minister of Justice and Correctional Services, on the terms and conditions as set out in the contract dated 24 June 2019, linked to the term of office of the Deputy Minister.
3. The dispute relating to deductions allegedly made from the applicant’s gross salary is referred to oral evidence at a date and time to be arranged with the Registrar on the following basis:
3.1 the affidavits filed in this matter are to serve as pleadings in the determination of that issue;
3.2 the parties are entitled to call any witness who deposed to any affidavit in these application proceedings;
3.3 the parties are entitled to call any further witnesses who were not deponents to affidavits in these application proceedings:
3.3.1 provided that such party has at least thirty court days before the date of the hearing of the oral evidence served on the other party an affidavit or statement of the evidence-in-chief to be given by such person;
3.3.2 but subject to the court, at the hearing of the matter, permitting any further witnesses to be called notwithstanding that no such statement has been served in respect of his or her evidence;
3.4 the parties may subpoena any witness to give evidence at the hearing or to furnish documents whether such person has consented to furnish a statement or not in relation to the issue referred to oral evidence;
3.5 the rules pertaining to the discovery of documents shall apply.’
1.2 APPLICATION TO DECLARE UNLAWFUL EMPLOYER’S RECORDS REFLECTING DISMISSAL AND THAT IT SHOULD READ RESIGNATION
SA Medical Association Trade Union obo Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others Unreported case no J1773/2022
(2023) 44 ILJ 1779 (LC)
[2023] 6 BLLR 575 (LC)
(2023) 34 SALLR 354 (LC)
(a) Is an employee entitled to an order compelling an employer to change its records reflecting the status of such employee as ‘dismissed’ to ‘resignation’ where the employee resigned during a disciplinary enquiry and where, during the period of resignation, he was dismissed by the employer?
(b) How did the labour court interpret the approach that it has no general jurisdiction in employment matters, with reference to Baloyi v Public Protector and Others 2022 (3) SA 321 (CC)?
(c) Is an employer entitled to unilaterally extend a notice period so as to cater for the outcome of an appeal against an original internal decision to dismiss an employee?
INTRODUCTION
applicant sought declaratory order: (i) declaring employer’s unilateral extension of his notice period to be unlawful; (ii) declaring unlawful the maintenance of certain of the
employee’s records; (iii) directing employer to remove employee’s name from Persal system; (iv) directing employer to change employee’s personal file to reflect resignation and not dismissal
1. The applicant sought an order declaring a decision by the third respondent to unilaterally extend his notice period to be unlawful, declaring unlawful the maintenance of certain of the applicant’s records, and directing the respondents to take all necessary steps to remove and release the applicant’s name from the Persal system of the department, and directing the respondents to update the applicant’s personal file to reflect the status of a resignation.
2. It was unclear from the notice of motion whether the applicant was seeking interim or final relief. The issues were fully ventilated before the labour court, and it dealt with the matter as one in which final relief was sought.
PERTINENT FACTS OF THE CASE
employee was medical doctor; while waiting for outcome of disciplinary enquiry (allegation was that he incited other employees to participate in an unprotected strike), he applied for and was offered a job at the Chris Hani Baragwanath Hospital; he submitted his letter of resignation giving the required 30-days’ notice; before the expiration of the 30 days, he was found guilty and dismissed; employee appealed –employer informed employee that, on the Persal system, it has reversed dismissal for the period of the appeal; employer also unilaterally extended the notice period until the outcome of the appeal – during this period, it expected employee to continue providing his services; appeal had subsequently been dismissed and dismissal upheld
3. The material facts were not in dispute. The applicant was a medical doctor.
4. During June 2022, disciplinary proceedings were instituted against the applicant on a charge of inciting other employees to participate in an unprotected strike. The disciplinary enquiry commenced on 28 June 2022 and concluded on 30 August 2022.
5. In the interim, while awaiting the outcome of the enquiry, the applicant had applied for, and was offered, a post at the Chris Hani Baragwanath Hospital. In anticipation of the offer of employment and his acceptance of it, on 1 November 2022, the applicant submitted his letter of resignation, giving the required 30 days' notice to terminate his employment contract with effect from 30 November 2022.
6. On 11 November 2022, the applicant’s hopes were realised, and he received and accepted an offer of employment from Baragwanath Hospital, to assume duty on 1 December 2022.
7. On 18 November 2022, the applicant was advised that he had been found guilty of the misconduct with which he had been charged, and that the sanction of dismissal had been imposed.
8. On 25 November 2022, the applicant lodged an appeal against his dismissal.
9. On 28 November 2022, in response to the applicant’s notice of appeal against the disciplinary sanction, the third respondent advised that, consequent on receipt of the notice, ‘the hospital shall reverse the implementation of dismissalon the Persal system’, and that the reversal ‘shall remain in effect during the entire process of appeal as per clause 7.4(c) of the PSCBC resolution 1 of 2003’.
10. The letter went on to state:
‘5. Furthermore, please take note that the hospital is in receipt of your resignation letter and your notice period of up to the 30th November 2022. The resignation letter was submitted during the process of the disciplinary hearing against yourself which started on 28th June 2022 till the 17th November 2022.
6. Given your appeal, the hospital shall extend your period of serving notice until the outcome of your appeal from the Executive Authority.
7. You are therefore expected to continue providing services to Mankweng Hospital until both the hospital and yourself receives the outcome of the appeal.’
11. In response to the letter, the applicant filed the present application. As an aside, the labour court was advised that the applicant’s appeal had subsequently been dismissed, and his dismissal upheld.
FINDINGS OF THE LABOUR COURT
Van
Niekerk J
12. At the commencement of the hearing, the labour court asked the applicant to make clear the basis on which the court’s jurisdiction had been invoked. The response was that the dispute concerned a ‘labour matter’.
13. The labour court has stated ad nauseam that its jurisdiction does not extend to all labour matters, and that an applicant must necessarily identify the statutory provision that confers jurisdiction on the court in the matter concerned.
Baloyi (CC): LC does not have general jurisdiction in employment matters; LC only has jurisdiction where LRA or other law requires it to exercise its jurisdiction
14. In Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) (Baloyi), the constitutional court said the following:
‘[23] The legislation in terms of which an assignment would be made in the context of the present matter is the LRA. Section 157(1) of the LRA provides for the exclusive jurisdiction of the labour court in all matters that – in terms of the LRA or other law – are to be determined by the labour court. In doing so, it fulfils one of the stated purposes of the LRA, which is to establish the labour court and the labour appeal court as superior courts, with “exclusive jurisdiction to decide matters arising from the Act”. Section 157(1) reads:
“Subject to the Constitution and section 173, and except where this Act provides otherwise, the labour court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the labour court.”’
15. Section 68(1), s77(2)(a), s145 and s191 of the LRA proffer examples of matters that ‘are to be determined by’ the labour court and are, therefore, by virtue of s157(1), within the exclusive jurisdiction of the labour court
16. The labour court has, moreover, found that the high court’s jurisdiction in respect of employment-related disputes is ousted only where the dispute is one for which the LRA creates specific remedies, including, for example, unfair dismissal disputes:
‘[24] Crucially, section 157(1) does not afford the labour court general jurisdiction in employment matters…’ (Baloyi)
could employer unilaterally extend notice period of employee’s resignation? – notice period determined by contract (or regulatory measure, or collective agreement) and this determines end of notice period; employer not entitled to unilaterally extend
17. The first issue to be determined was whether it had been open to the third respondent to extend the notice period triggered by the applicant’s resignation on a unilateral basis.
18. The case advanced by the third respondent was curious – the contention appeared to be that ‘the Applicant’s resignation after the announcement of a sanction of dismissal has no legal effect, as the employer is entitled to continue with disciplinary action, during the employee’s notice period’.
19. A resignation is a unilateral act by the employee that has the effect of terminating the contract of employment. At common law, there is thus no need for a resignation to be ‘accepted’, nor is an employer obliged to accept any retraction of a resignation, once it is given (see Van Niekerk et al Law@work (5th ed, Lexis Nexis, Durban), at 248 to 249; Wallis Labour and Employment Law (1995 Lexis Nexis), at paragraph [33]; Vodacom v Motsa and Another 2016 (3) SA 116 (LC)).
20. It is thus not open to an employer unilaterally to extend a notice period triggered by an employee’s resignation. The notice period is determined by the contract (or applicable regulatory measure or collective agreement), and the contract of employment terminates at the end of the notice period. There is thus no legal basis for the action taken by the third respondent in terms of its letter dated 28 November 2022.
21. But that was not the end of the matter. The applicant further sought an order directing the respondents to update his personal file to ‘reflect a status of resignation and hand over the file to Human Resources Directorate at Chris Hani Baragwanath Academic Hospital’.
22. What the applicant effectively sought to do was to expunge any record of his dismissal from his personal file, on the basis of his having filed an appeal after being notified of his dismissal but before the expiry of the notice period triggered by his resignation.
23. Clause 7.4(c) of PSCBC Resolution 1 of 2003 provides that, where a sanction is pronounced by the chair of a disciplinary hearing:
‘The employer shall not implement the sanction during an appeal bythe employee’.
24. Further, clause 8.7 provides that, once the appeal authority has made a decision:
‘[t]he employer shall immediately implement the decision of the appeal authority. Where the appeal authority decides to reduce the sanction or to confirm the outcome of the disciplinary proceedings (e.g. dismissal cases), the sanctions will be implemented by the employer from a current date.’
25. While it may be correct, as the applicant submitted, that a dismissal in the public sector has an ‘effective date’ (being the date on which the appeal authority confirms the sanction of dismissal), it does not necessarily follow that the applicant’s dismissal was somehow expunged from his personal record on account of his filing an appeal.
26. It should be recalled that the applicant’s contractual notice of his intention to terminate his employment was given prior to his dismissal, which occurred during the notice period.
27. It is well-established that there is nothing to preclude an employer from terminating a contract of employment summarily during a notice period triggered by a resignation (see Standard Bank of SA Ltd v Chiloane Dec 2020, Mthimkhulu v Standard Bank of South Africa [2021] 1 BLLR 86 (LC)).
once disciplinary tribunal announces its sanction, it remains on record, but its implementation is suspended until appeal authority makes decision – only if appeal authority upholds appeal against sanction of dismissal is dismissal expunged from employee’s record: wrt clause 7.4(c) and 8.7 of collective agreement
28. The applicant’s submissions confused the existence of a dismissal with its implementation. The filing of an appeal against the sanction issued by the presiding officer did no more than delay the implementation of the sanction. Neither clauses
7.4(c) nor 8.7 of the collective agreement supported the construction that, once a sanction is the subject of an appeal, it is expunged or somehowceases to exist, pending the outcome of the appeal. The sanction remains on record – its implementation is suspended until the appeal authority makes a decision.
29. If, and only if, the appeal authority upholds an appeal against a sanction of dismissal is the dismissal then expunged from the employee’s record. It is common cause in this instance that the appeal authority dismissed the appeal and upheld the applicant’s dismissal.
30. When an applicant invokes the labour court’s jurisdiction under s77(3) of the BCEA, the rule in relation to costs is that costs follow the result, save in exceptional circumstances. In this instance, there were no exceptional circumstances.
order
31. The application was dismissed with costs.
1.3 CIRCUMSTANCES UPON WHICH SPECIFIC PERFORMANCE WILL NOT BE GRANTED IN UNLAWFUL DISMISSAL MATTERS
The Passenger Rail Agency of South Africa and Nine Others v Onica Martha Ngoye and Two Others Unreported case no JA78/21 (2024) 35 SALLR 120 (LAC)
(a) The labour court is afforded jurisdiction in terms of s77(1) read with s77(3) of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract. A number of supreme court of appeal decisions expressly stated that the dispute-resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse. Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA), Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) and SA Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) are three of such judgments. How did the labour appeal court recently view the approach adopted by the supreme court of appeal?
(b) Subsequent to the handing down of the aforementioned supreme court of appeal judgments, the constitutional court also dealt with the issue of an employee’s entitlement to common law remedies in Chirwa v Transnet and Others [2007] ZACC 23, Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC), Steenkamp and Others v Edcon Limited [2016] ZACC 1, Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] 4 BLLR 323 (CC) and Baloyi v Public Protector [2021] 4 BLLR 325 (CC). In essence, the approach adopted by the constitutional court has come to be relied upon by both the high court and the labour court to assume jurisdiction in disputes stemming from dismissals referred as contractual dismissals. How did the labour appeal court view this development that, in essence, permitted a litigant the option of pursuing a claim either on contractual grounds or, alternatively, fairness grounds?
(c) Although the labour appeal court correctly found itself bound by the majority decision in Baloyi v Public Protector [2021] 4 BLLR 325 (CC), what were the concerns it expressed with regard to the disadvantages that flow from such an approach?
(d) In the scenario where an applicant alleges to pursue a claim based on contractual grounds, the relief prayed for must be either specific performance or damages. In the absence of proving damages suffered, an applicant will only be entitled to specific performance. What are the factors identified by the labour appeal court that should be taken into account when considering whether or not such discretionary relief should be granted?
(e) With reference to Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) and Nationwide Airlines v Roediger and Another 2008 (1) SA 293 (W), on what basis did the labour appeal court hold that the remedy of specific performance was generally not applicable in an employment context?
INTRODUCTION
1. It has become commonplace, mostly for white-collar employees, to challenge their dismissals or disciplinary action initiated by their employers on the basis of unlawfulness and/or breach of contract, rather than to dispute the fairness of the employer’s action.
2. The present matter was yet another example of this. Here, the employees alleged that their dismissals were unlawful and refrained from disputing the fairness of such dismissals.
PERTINENT FACTS OF THE CASE
3. In the present matter, the facts relating to the dispute were that, on 29 January and 1 February 2021, the appellant summarily terminated the respondents’ contracts of employment stating that the respondents had ‘exceeded the normal five year fixed-term contract extended to all executives’. The respondents lodged an urgent application seeking a declarator that their contracts of employment were extant; that the termination of their contracts be declared unlawful and be set aside; that they be reinstated with immediate effect and retrospectively to the date of their dismissal and that they be paid their salaries and benefits from the date on which their contracts were terminated.
employer summarily terminated the employees’ contracts of employment on the basis that they exceeded the normal 5-year fixed-term contract applicable to executives; employees brought application ito s77(3) of BCEA – to have their dismissals declared unlawful and seeking specific performance to restore status quo ante
4. If reliance were to be placed on substance rather than form, the applicants (respondents in the present appeal) were effectively seeking to have their dismissal declared unlawful and, as relief, they sought an order of specific performance to restore the status quo ante. The respondents sought the declarator and the consequent relief expressly in terms of s77(3) of the BCEA.
5. The respondents had been in the appellant’s employ variously from between 2007 to 2014. The first respondent had held the position of group executive: legal risk and compliance since 22 August 2014. The second respondent had been in the appellant’s employ since 1 December 2012, as chief operating officer. The positions held by the first and second respondents were executive positions within the appellant’s employment structure.
6. The third respondent commenced his employment with the appellant on 1 June 2007 and had held various executive positions since then. On 31 July 2020, he was offered the post of general manager: strategy, which he accepted. This was also a very senior management position.
7. There were written contracts of employment between the appellant and the first and second respondents There was no written contract between the appellant and the third respondent.
employer further alleged that employees had capitalised on the instability at board level culminating in their extended unlawful stay
8. In a press release issued by the appellant in respect of the termination of the respondents’ contracts of employment, it added (apart from the extension of the five-
year period) that the respondents had ‘capitalised on the instability at the Board level culminating in their extended unlawful stay at [the appellant]’.
first and second respondents’ challenge: (i) not employed ito a fixed term of 5 years, but permanent employment not limited by time; (ii) presence of non-variation clause indicating that neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in contract
9. The respondents’ challenge to the termination of their contracts of employment on the grounds of unlawfulness was grounded on their denial that their employment contracts with the appellant had been for a fixed term of five years. The written contracts of employment between the appellant and the first and second respondents evinced an agreement of permanent employment not limited in terms of time. The written contracts further included a non-variation clause which provided, inter alia:
‘Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.’
third respondent’s challenge: position he held at time employment was terminated was held for less than 12 months
10. In the case of the third respondent, the position he held at the time his employment was terminated was a position he had held for less than12 months.
11. Rather curiously, the appellant failed to challenge any of the facts and allegations made by the respondents. It only saw fit to raise technical defences
12. The appellant’s defence was that the labour court lacked jurisdiction to determine the application because the respondents’ ‘pleaded case is one of unlawfulness as opposed to breach of contract’, adding that the respondents had not alleged any breach of contract and had failed to point to any clause within the contract that the appellant might have breached.
LC: employees’ termination of contracts unlawful and restored status quo ante
13. The labour court correctly found no merit in the points raised by the appellant and found that the termination of the respondents’ employment contracts was unlawful. In terms of relief, the labour court granted the respondents the prayers theysought in their notice of motion, including costs.
FINDINGS OF THE LABOUR APPEAL COURT
Waglay JP (with Musi JA et Gqamana AJA concurring)
14. Since the enactment of the LRA, there has been an ongoing debate about whether employees are compelled to utilise the LRA’s recourse and remedies to resolve disputes that emanate from dismissals, or disciplinary action short of dismissal, that could be classified as an unfair labour practice (ulp) (see K Newaj, ‘The Use of Contractual Recourse in Dismissal Disputes: Settling The Dilemma’ (2022) 43 ILJ 2189; D du Toit, ‘Oil on Troubled Waters? The Slippery Interface Between the Contract of Employment and Statutory Labour Law’ (2008) 125 SALJ 95; and T Ngcukaitobi, ‘Sidestepping the Commission for Conciliation, Mediation & Arbitration: Unfair Dismissal Disputes in the high court (2004) 25 ILJ 1’).
15. If there was such a compulsion, this would divest employees of the right to refer such disputes on the basis of unlawfulness and/or breach of contract. Instead, the employee would be required to utilise the dispute-resolution procedures provided for in the LRA.
16. The LRA seeks to resolve unfair dismissal and ulp disputes in an effective manner. Section 191 provides clear and concise directions on the procedure to be followed. Significantly, it is the CCMA and the bargaining councils (hereafter collectively referred
to as the CCMA) that are afforded jurisdiction, in the first instance, to deal with such disputes.
17. The labour court acquires its jurisdiction from s157(1), which authorises it to deal with matters emanating from the LRA, except where the LRA provides otherwise.
s157(1) of LRA: subject to Constitution and s173, and where LRA provides otherwise, LC has exclusive jurisdiction ito all matters indicated in LRA or ito any other law to be determined by LC
18. Section 157(1) states that:
‘subject to the Constitution and section 173, and except where this Act provides otherwise, the labour court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the labour court'.
19. One such instance is where jurisdiction is assigned to the CCMA. Furthermore, the labour court is afforded jurisdiction in terms of s77(1) read with s77(3) of the BCEA. The last-mentioned sections authorise the labour court to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of the contract.
s77(1) of BCEA: subject to Constitution and jurisdiction of LAC, and except where BCEA provides otherwise, LC has exclusive jurisdiction ito all matters ito such Act
20. Section 77(1) of the BCEA states that:
‘subject to the Constitution and the jurisdiction of the labour appeal court, and except where this Act provides otherwise, the labour court has exclusive jurisdiction in respect of all matters in terms of this Act'.
21. Against this backdrop, the principles that have been established by the judiciary regarding the jurisdiction of courts to address disputes of the character referred to above, and which are present in the current matter, are set out hereunder
LAC decisions: dispute-resolution procedure provided for in LRA does not eliminate employee’s right to rely on common law recourse (Fedlife, Makhanya, SA Marine Safety Authority) – courts will have jurisdiction to hear a dismissal dispute (as well as an unfair labour practice dispute) as long as employee pleads the claim as one relating to unlawfulness or breach of contract and not unfairness
22. There have been a number of supreme court of appeal decisions, where it has been expressly stated that the dispute-resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse.
23. Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) (Fedlife), Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) (Makhanya) and South African Maritime Safety Authority v McKenzie [2010] ZASCA 2; 2010 (3) SA 601 (SCA); [2010] 3 All SA 1 (SCA); (2010) 31 ILJ 529 (SCA); [2010] 5 BLLR 488 (SCA) (SA Maritime Safety Authority) are three such judgments. The common thread highlighted in these judgments is that the courts will have jurisdiction to hear a dismissal dispute as long as the employee pleads the claim as one relating to unlawfulness or breach of contract, and not to unfairness. The emphasis is, therefore, on the form that the claim takes.
24. The majority in Fedlife, at paragraph [27], stated:
‘Whether a particular dispute falls within the terms of s191 depends upon what is in dispute, and the fact that an unlawful dismissal might also be unfair (at least as a matter of ordinary language) is irrelevant to that enquiry. A dispute falls within the terms of the section only if the “fairness” of the dismissal is the subject
of the employee’s complaint. Where it is not, and the subject in dispute is the lawfulness of the dismissal, then the fact that it might also be, and probably is, unfair, is quite coincidental for that is not what the employee’s complaint is about.’
25. Similarly, in Makhanya, at paragraph [71], the supreme court of appeal stated that the pleadings of a case were definitive:
‘...the claim that is before a court is a matter of fact. When a claimant says that the claim arises from the infringement of the common-law right to enforce a contract, then that is the claim, as a fact, and the court must deal with it accordingly. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution then, as a fact, that is the claim. That the claim might be a bad claim is beside the point.’
26. The supreme court of appeal further held that the rights not to be unfairly dismissed or not to be subjected to an unfair labour practice, termed ‘LRA rights’ were not the only rights that an employee was entitled to. While the CCMA had exclusive jurisdiction to enforce ‘LRA rights’ this was not the case with other rights, such as contractual rights.
27. In SA Maritime Safety Authority, at paragraph [7], the court explained that the question to be engaged with was not whether the court had jurisdiction over another claim which arose from the same set of facts but rather whether the court had jurisdiction over the pleaded claim.
however, SCA Fedlife minority decision: true question is whether LRA comprehensively dealt with constitutional right to fair labour practices, entailing that there is no place for unlawfulness – affirmative answer provided; LAC regards this as ‘far more persuasive’
28. Notwithstanding the above, the minority judgment in Fedlife was far more persuasive. The minority judgment had as its point of departure the Constitution, which solidifies that there is only one system of law, the nature and ambit of which is determined by the Constitution itself. Significantly, the Constitution provides for the right to fair labour practices, within which the right not to be unfairly dismissed is pinned down. Therefore, determining whether the dismissal of the employee, following upon the unlawful repudiation of the employment contract, was a dispute about the fairness of a dismissal, required an evaluation of whether the LRA comprehensivelydealt with the constitutional right to fair labour practices (Fedlife (minority), at paragraphs [4], [5] and [11]).
29. The minority in Fedlife answered this question in the affirmative considering that the defendant fell within the LRA definition of an employee, that the termination of the employment was easily classifiable as a dismissal for the purposes of the LRA, and the fact that the LRA provisions that regulate dismissals are wide-ranging and comprehensive in nature. Therefore, despite the respondent’s classification of the dispute as an unlawful termination, it was difficult for the minority court to conceive ‘how an unlawful dismissal would not also be an unfair dismissal’. Consequentially, the minority judgment held that it had to be found to be an unfair dismissal that fell squarely within the ambit of s191 of the LRA (Fedlife, at paragraphs [6] to [10]).
30. Those findings would equally find application in respect of unfair labour practice disputes, such as suspensions, which are similarly encompassed within the constitutional right to fair labour practices, and which are expansively governed by the LRA.
CC: Chirwa, Gcaba, Edcon, Zungu, Baloyi followed upon Fedlife
31. Following upon Fedlife there have been a number of constitutional court decisions that are relevant. These are Chirwa v Transnet and Others [2007] ZACC 23; [2008] 2 BLLR 97 (CC) (Chirwa), Gcaba v Minister of Safety and Security [2009] ZACC 26; [2009] 12
BLLR 1145 (CC) (Gcaba), Steenkamp and Others v Edcon Limited [2016] ZACC 1, 2016 (3) BCLR 311 (CC) (Edcon), Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] 4 BLLR 323 (CC) (Zungu) and Baloyi v Public Protector [2021] 4 BLLR 325 (CC) (Baloyi).
32. Both Chirwa and Gcaba rejected the rights of public servants to refer disputes stemming from a dismissal or an alleged ulp as a violation of their right to fair administrative action.
33. Chirwa emphasised the suitability of utilising the dispute-resolution framework provided for in the LRA in employment-related disputes over the use of non-purpose-built processes and forums. The LRA was described as providing ‘a one-stop shop for all labour-related disputes’, such that employees should pursue claims through the mechanisms established by the LRA and not through alternative causes of action (Chirwa, at paragraphs [41] and [54]).
Chirwa (CC): substance must prevail over form – otherwise litigants could formulate their claims to avoid reliance on fairness in order to bypass dispute-resolution machinery in LRA
34. Equally important were the pronouncements that the substance of a dispute must prevail over its form. It was explained that, if form rather than substance were allowed to dominate, ‘astute litigants’ would formulate their claims very carefully to avoid reliance on fairness in order to bypass the dispute-resolution machinery created by the LRA (Chirwa, at paragraph [95]).
Gcaba (CC): if delegates would circumvent the dispute-resolution structures created by LRA, a dual system of law would be created
35. Gcaba, at paragraph [56], endorsed the primacy of the use of the dispute-resolution mechanisms provided for in the LRA, by explaining that:
‘Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system ... If litigants are at liberty to relegate the finely tuned dispute-resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees.’
36. While these two cases ostensibly championed the predominance of the disputeresolution procedures provided for in s191 of the LRA, Gcaba caused confusion by finding that the legal basis of the claim had to be determined on its pleadings. Those pronouncements have come to be relied upon by both the high court and the labour court to assume jurisdiction in disputes stemming from dismissal referred as contractual disputes (see, for example, SA Maritime Safety Authority, at paragraph [7], and Xako v Nelson Mandela Bay Municipality [2015] 12 BLLR 1276 (LC), at paragraph [6]).
37. The confusion caused by Gqaba is apparent, as certain cases have utilised Gcaba to find that it had no jurisdiction to entertain unlawful/contractual disputes (see, for example, Zungu, at paragraph [17], and Baloyi, at paragraph [8], where the constitutional court explained that the high court, relying on Gcaba, found that it did not have jurisdiction to adjudicate the dispute).
38. Others used Gqaba to confirm jurisdiction (see, for example, Archer v Public SchoolPinelands and Others (2020) 41 ILJ 610 (LAC), at paragraph [24], and Baloyi, at paragraph [33]).
39. The constitutional court, in Edcon, suggested that employees are not precluded from pursuing claims emanating from dismissals in a manner other than that provided for in the LRA. It stated:
‘where the law permits forum-shopping, a litigant cannot be denied relief just because it is engaging in forum-shopping’ (Edcon, at paragraph [125]).
Edcon (CC): if dispute is pleaded as being non-compliant with dismissal or ulp procedures set out in LRA, it will have to be referred ito s191 of LRA; if non-compliance with LRA is not relied on, an employee can pursue a contractual claim if a contractual remedy is sought
40. However, it rejected the applicants’ pursuance of their claim as an invalid dismissal rather than an unfair dismissal, as what gave rise to the claim of invalidity was noncompliance with the LRA. The claim was rejected on the basis that the LRA does not contemplate unlawful dismissals, coupled with the fact that the remedy sought was a common law remedy. Zondo J highlighted that a litigant must seek an LRA remedy for an LRA infringement. Essentially, if a dispute is pleaded as being non-compliant with the dismissal or ulp procedures set out in the LRA, it will have to be referred in terms of section 191. However, if non-compliance with the LRA is not relied on, an employee can pursue a contractual claim if a contractual remedy is sought.
Zungu (CC): despite employee making no reference in pleadings to a dismissal or unfairness, found that issue in dispute was dismissal to be arbitrated by CCMA ito s191 of LRA – led to LC dismissing claims of employees who tried to dress up their unfair dismissal as a contractual claim (instead of referring it ito s191 of LRA)
41. The labour appeal court, in Zungu v Premier, Province of KwaZulu-Natal and Another [2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC) (Zungu (LAC)), gave priority to the substance of the dispute. An important point made by the labour appeal court was that its jurisdiction had to be determined by assessing what character the dispute manifested. It was stated that:
‘In a judicial system where jurisdiction over causes of action is divided among several fora, it is no surprise that the imposition of what is, for policy reasons, an artificial ring-fencing of types of disputes, will from time to time result in a rubbingup against the edges. However, where a clear characterisation is possible, it is not sensible to force a different characterisation to facilitate forum shopping’ (at paragraph [20]).
42. Despite the employee making no reference in the pleadings to a dismissal or unfairness, both the labour court and the labour appeal court came to the conclusion that they lacked jurisdiction to adjudicate the matter. Both courts found that the issue in dispute was a dismissal, which needed to be arbitrated by the CCMA in line with s191 of the LRA. The constitutional court agreed.
43. The effect of this judgment (Zungu (CC)) led to the rejection by the labour court of claims lodged by dismissed employees who ‘tried to dress up unfair dismissal’ as a contractual claim, instead of dealing with it in line with the s191 procedure.
44. There are important principles that arise from the constitutional court, though it cannot be said that a consistent approach was followed. On the one hand, precedence was given to the dispute-resolution structures set up in the LRA and courts were called upon to assess the substance of the claim (character manifested). On the other hand, reliance was required to be placed on the pleadings and other causes of action were allowed to be pursued. Therefore, a clear approach was not postulated, resulting in divergence as reflected in the findings and outcomes. However, Baloyi has provided some clarity.
Baloyi (CC): HC dismissed claim on basis that dispute constituted a labour dispute envisaged by LRA; overturned by CC – found that more than one cause of action flows from termination of an employment contract: a litigant could choose which cause of
action to pursue; LRA did not extinguish contractual remedies where there was a breach of an employment contract or unlawful termination
45. In Baloyi, the constitutional court had to determine whether an employee could institute a contractual claim to challenge a dispute stemming from her dismissal. Here, the employee had ostensibly been dismissed for poor performance during her probationary period (Baloyi, at paragraph [4]).
46. She claimed that her termination had been unlawful as it constituted a breach of her employment contract and amounted to the exercise of public power that breached the principle of legality.
47. The high court dismissed the claim for lack of jurisdiction as it was persuaded that the nature of the dispute constituted ‘a labour dispute envisaged by the LRA’.
48. This decision was overturned by the constitutional court. It found that more than one cause of action flows from the termination of a contract of employment. A litigant could therefore choose which cause of action to pursue.
49. It is only where a litigant chose to pursue an unfair dismissal claim, that the dispute resolution procedures in the LRA would apply.
50. The same could not be said where the litigant chose to pursue the dispute as a contractual claim, as contractual rights existed independently of LRA rights, as confirmed in Makhanya Gcaba was used as authority for the assertion that jurisdiction must be based on the pleadings and not on the substantive merits.
51. The constitutional court highlighted that the LRA did not extinguish contractual remedies where there was a breach of the employment contract or unlawful termination. Therefore, the high court had jurisdiction as the plaintiff asserted her claim as a breach of contract without relying on a violation of the LRA. It was emphasised that, while the plaintiff may have had a claim of unfair dismissal, she was entitled not to pursue such a claim and rather to pursue an alternate cause of action, which is what she elected to do.
LAC: found minority judgment in Fedlife more appealing; however, accepted bound by Baloyi (CC); felt compelled to express its concerns with disadvantages that flow from such approach
52. While the labour appeal court found the minority judgment in Fedlife more appealing, it accepted that Baloyi was the existing authority on the matter, which it was bound by and which it duly followed. However, the labour appeal court felt compelled to express its concerns with the disadvantages that flowed from such an approach
53. While neither of the constitutional court decisions preceding Baloyi had expressly ruled out the right to utilise contractual recourse, there were findings that directed the courts to respect the ‘purpose-built employment framework’ in order to prevent a dual system of law.
Baloyi (CC) overrides respect for purpose-built employment framework of LRA in order to prevent a dual system of law
54. Baloyi overrode this principle and gave the courts unreserved jurisdiction over such disputes. This undoubtedly weakened the dispute-resolution framework set up in the LRA, as litigants were now easily able to jettison the LRA rights afforded to them in favour of having their dispute adjudicated as a contractual claim or one based on unlawfulness. This despite the fact that the dispute would never have arisen if it were not for the dismissal or the ulp.
LAC: should contractual recourse be pursued, litigants must be aware that, even if successful, this does not automatically translate into getting and achieving the status quo ante (getting the job back) or the awarding of damages
55. Now that the use of contractual recourse is unhindered, litigants must take heed of the impediments that exist in obtaining a successful contractual remedy when deciding on the cause of action to be pursued. The difficulty in securing a contractual remedy is exactly what the purpose-built framework set out in the LRA seeks to counter. The rights and procedures that flow from the LRA seek to provide an efficient and effective method of resolving disputes emanating from employment, including accessible remedies. Therefore, employees needed to think carefully about the prospects of success before deciding to lodge contractual disputes or challenge the lawfulness of dismissals or other disciplinary action.
56. While the labour court, on an application of Baloyi, has jurisdiction to deal with unlawful dismissals and other alleged unlawful employer conduct, this does not translate into a successful outcome for litigants insofar as getting their jobs back.
LAC: application of principles to facts in casu – employer terminated employment contracts contrary to terms of these contracts; such termination amounts to unlawful termination
57. In the absence of any challenge to the facts and allegations set out and made by the respondents, the labour appeal court had to accept them as correct. It was clear from those facts and allegations that the appellant had, in fact, terminated the respondents’ contracts of employment without good or proper cause. The grounds for the termination of the contracts as communicated to the respondents were without merit and, as such, there could be no dispute that the termination was unlawful. The appellant’s argument that the respondents had failed to allege a breach of any particular clause did not make their claim bad in law. A full and proper reading of the founding affidavit (though inelegantly drafted) demonstrated that they were employed by the appellant and that the appellant had terminated their employment contract and had done so contrary to the terms of that contract, which termination amounted to an unlawful termination.
58. In respect of the present matter, the labour appeal court found that the labour court did have jurisdiction to adjudicate the dispute, based on the precedence set by Baloyi by which the labour appeal court was bound.
if found that unlawfulness exists: only contractual remedies are available; these are specific performance or damages – in absence of proving damages suffered, specific performance is only possible remedy subject to limitations on granting such relief
59. The issue, however, was what happens once the contract is found to have been unlawfully terminated. As has been stated earlier, and particularly in the matter of Edcon, where the constitutional court held that, if a matter is brought in terms of the LRA, only the remedies set out in the LRA are competent. If a claim is made in terms of contract, only contractual remedies are competent
60. Since the respondents had disavowed any reliance on the LRA, and having succeeded in having the termination of their contract declared unlawful, the only relief to which they would be entitled was specific performance or damages. In the absence of proving the damages that they suffered, they were not entitled to any.
if wronged party claims specific performance, such party has elected not to treat the other party’s performance as a repudiatory action justifying cancellation but to hold other party to its obligations under the contract; court must exercise its discretion whether to compel parties to contract to perform in terms thereof or to order damages
61. In any event, the only relief the respondents sought was specific performance. A party claiming specific performance is pursuing its claim on the basis that a contract exists and is trying to enforce the obligations undertaken by the other party in terms of the
agreement. In claiming specific performance, the wronged party has elected not to treat the other party’s failure to perform as a repudiatory action justifying cancellation but to hold the other party to its obligations under the contract
62. To simplify it further, where one has a commercial contract or, more particularly, a transactional contract, and one party resiles from the contract, the other party can enforce the contract’s continuation and the court seized with the matter must exercise its discretion whether to compel the parties to the contract to perform in terms thereof or to order the party in breach to pay damages.
nature of discretion: court must look at facts and circumstances of breach and determine if it is appropriate to compel parties to continue relationship ito agreement, even though one of the parties, on the face of it, no longer wants to continue with contract; court must also look at nature of contract and consequence of granting the relief of ordering the restoration of status quo ante
63. In circumstances where a contract is terminated for a breach, albeit consequent on unlawful conduct by the breaching party, specific performance is not a relief that automatically follows: it is a discretionary relief. A court must look at the facts and circumstances of the breach and determine if it is appropriate to grant specific performance, that is, to compel the parties to continue the relationship in terms of their agreement even though one of the parties, on the face of it, no longer wants to continue with the contract.
64. This is opposite to the relief a dismissed employee, who seeks reinstatement in terms of the LRA for unfair termination of her/his employment, is entitled to. For specific performance, the court will exercise a judicial discretion on whether it is appropriate to grant specific performance, whereas, in a claim of unfair dismissal, the commissioner or the labour court will only refuse reinstatement if certain specific conditions set out, as in s194 of the LRA, are present.
65. In determining the appropriateness of granting specific performance, a court must also look at the nature of the contract and the consequence of granting the relief of ordering the restoration of the status quo ante. Since we have been warned to consider termination based on unlawfulness and unfairness differently and to strictly apply the rules peculiar to the basis of the claim, as stated earlier, a claim of unlawful dismissal based on contract cannot automatically result in the grant of specific performance but determined after the court exercises its judicial discretion on whether it should be granted.
Haynes (A), Stag Packaging (T), Nationwide Airlines (W): discretion is applicable to all contracts – no hard and fast rule that specific performance of employment contract would never be granted
66. The issue of specific performance in an employment context, therefore, is fraught with difficulties. Although specific performance was generally refused in an employment context, in Haynes v King Williams Town Municipality 1951 (2) SA 371 (A), at 378G, it was said:
‘the discretion which a court enjoys although it must be exercised judicially is not confined to specific types of cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of its own circumstances’
67. Similarly, the high court, in National Union of Textile Workers and Others v Stag Packaging (Pty) Ltd and Another [1982) 4 All SA 566 (T), at 573, noted that:
‘[t]he Appellate Division did not in Haynes’ case, when laying down the approach to the granting of orders for specific performance, exclude the case of an ordinary servant’.
68. In Nationwide Airlines (Pty) Ltd v Roediger and Another 2008 (1) SA 293 (W), at paragraph [17], the high court considered the operation of the remedy of specific performance within the context of employment contracts and held that:
‘Where it concerns a contract of employment it has been held that a court will in the exercise of its discretion not normally grant specific performance, However, the tendency to regard this rule as one cast in stone, that is, that specific performance of an employment contract would never be granted, was shown not to be a hard-and-fast rule.’
LAC in casu: employment contract is not a commercial or transactional contract, but it is a personal contract; employees in upper echelons of a business are involved with running of business and need to conduct business in cooperation and consultation with owners or those who are authorised to control affairs of business – factor to be taken into account when exercising discretion; other factors to be taken into account when exercising discretion: (i) whether specific performance granted will lead to conflict within workplace; (ii) whether party in the wrong (employer) no longer needed employee’s services; (iii) financial prejudice that employee could suffer as result of losing income is not ground for granting specific performance
69. The reason why employment contracts were considered differently when it came to the relief of specific performance is precisely because an employment contract is not a commercial or transactional contract, it is a personal contract.
70. In the labour appeal court’s view, when dealing with employees on the upper echelons of a business enterprise, one should not lose sight of the fact that employees on the level of management need to involve themselves in helping with the running of the enterprise and need to conduct the business in cooperation and consultation with the owners, or those who are authorised to control the affairs of the enterprise.
71. In the present instance, although there was an unlawful termination of the contract, the labour appeal court could not exercise a discretion in favour of granting specific performance without being satisfied that, in their continued employment, there would be no interaction between the respondents and those who controlled the affairs of the appellant to determine the continued operation of the enterprise, or whether the grant of specific performance could lead to conflict within the workplace
72. Added was the fact that the termination of the employment contracts demonstrated that the appellant was no longer in need of the respondents’ services. These factors had to be taken into account in determining specific performance for an unlawful termination but could play no role where the dismissal was found to be unfair.
73. Finally, seeking specific performance because of financial prejudice that the employees would suffer as a result of losing their income, was not grounds for granting of the relief.
74. If a party sought urgent and immediate relief, as the respondents did, thus foregoing any claim for damages, then that party would have to accept, as the respondents had to, the risk of not being granted any relief.
75. In the present matter, the labour court had clearly failed to exercise its discretion and granted the relief which, at first glance, looked like specific performance although, on a closer look, it became apparent that it was more relief in terms of the LRA, which the labour court could not grant.
76. For present purposes, the labour appeal court accepted that the relief granted by the labour court was that of specific performance. The relief granted was, however, misconceived and the application should have been dismissed by the labour court. The labour court had misdirected itself in failing to exercise its discretion to determine whether it was appropriate to grant specific performance and granted the relief simply because the appellant had breached its contract of employment with the respondents. It had erred in the circumstances.
order
77. The appeal succeeded with costs:
78. The order of the labour court was set aside and replaced with the following order: the application was dismissed with costs.
C. CIVIL JURISDICTION
2. SETTLEMENT AGREEMENT SETTLING DISMISSAL DISPUTE BETWEEN EMPLOYER AND EMPLOYEES
SA Municipal Workers Union National Provident Fund (Pty) Ltd v Dihlabeng Local Municipality and Others
Unreported case no 65/2022 (2023) 44 ILJ 1479 (SCA) [2023] 7 BLLR 626 (SCA) (2023) 34 SALLR 371 (SCA)
(a) The doctrine of res judicata is based on the policy consideration that there should be finality in litigation and an avoidance of multiplicity of litigation or conflicting judicial decisions on the same issue or issues. What are the requirements to be met for this doctrine to be applicable?
(b) Over the years, the courts have relaxed the requirements pertaining to res judicata by applying a doctrine which has become known as issue estoppel. What are the requirements to be met for this doctrine to be applicable?
(c) With reference to, inter alia, Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), what were the factors taken into account by the supreme court of appeal to determine whether the parties in a settlement agreement envisaged re-employment or reinstatement?
INTRODUCTION
provident fund (the Fund) instituted application in HC for: (i) payment of certain alleged arrear pension fund contributions; (ii) statutory interest thereon; (iii) demanded provision of certain minimum information claimed from municipality – application dismissed with costs; appeal with leave of HC
1. The appellant, the South African Municipal Workers’ Union National Provident Fund (the Fund), instituted an application in the Free State Division of the High Court, Bloemfontein (the high court) in terms of s13A of the Pension Funds Act 24 of 1956 (the Act), for payment of certain alleged arrear pension fund contributions as well as statutory interest thereon from the first respondent, Dihlabeng Local Municipality (the Municipality), and demanded the provision of certain minimum information claimed from the Municipality. The application was dismissed with costs.
2. This appeal was with leave of the high court.
3. The Fund is a pension fund as defined in the Act. The Municipality is a participating employer in the Fund with statutory monthly contributory payment obligations in terms of the Act and the Fund rules.
employees participated in unprotected strike; dismissed following disciplinary hearing; employer paid their pro rata annual bonuses and accrued leave in addition to their entitled remuneration
4. On 6 April 2009, various employees of the Municipality engaged in an unprotected strike resulting in their subsequent dismissal on 31 July 2009, following a disciplinary hearing. Pursuant to their dismissal, the Municipality paid their pro rata annual bonuses and accrued leave in addition to their remuneration.
settlement agreement: (i) employees dismissed will be employed in their previous positions, subject to an acknowledgment that they participated in unprotected strike and would receive final written warnings for same; (ii) no salary, benefits or compensation will be paid during period calculated from date of dismissal to conclusion of agreement; (iii) parties agree that employees’ previous years of service will be recognised as if the employees were employed continuously
5. The affected 75 employees challenged their dismissal in the high court. Before the application could be heard, the Municipality and the affected employees entered into a settlement agreement, on 8 October 2009, the terms of which were, inter alia, the following:
‘1. The Applicants (75) who were dismissed will be employed by the Respondent Party with effect from the 8th of October 2009, in their previous positions under the following conditions:
1.1 that the applicants’ employees are guilty of participating in an unprotected strike on 6 April 2009;
1.2 that all the applicants’ employees will receive final written warnings for participating in the unprotected strike for the duration of 12 months calculated from 8 October 2009 until 8 October 2010.
2. No salary, benefits or compensation will be paid for the period that the employees (75) [were] unemployed, put differently, from 30 July 2009 until 7 October 2009 no retrospective salaries/benefits will be paid by the respondent.
3. The parties agree that employees’ previous years of service will be recognised as if the employees were employed continuously.’
employees allocated new employee numbers, effective 1 October 2009 (7 days before conclusion of settlement agreement); annual leave cycles commenced on 1 October 2009; commencement date of employment for annual and notch increases was also 1 October 2009
6. The employees who were affected by the settlement agreement were allocated new employee numbers with effect from 1 October 2009. Their annual leave cycles commenced on 1 October 2009, and the commencement date of their employment of annual and notch increases was 1 October 2009. Those employees were, inter alia, afforded an opportunity to elect their pension fund towards which the Municipality would pay the pension fund contributions.
2 years after settlement agreement (2011): affected employees approached Fund requesting payment of their withdrawal benefits on basis that benefits accrued to them as a result of their dismissals – Fund refused to pay benefits, indicating that employees had been reinstated and not re-employed; affected employees referred complaint to
Pension Funds Adjudicator (the Adjudicator) – dismissing the complaint, indicating that there had been no break in service or membership of Fund
7. Two years after the settlement agreement, in 2011, the affected employees approached the Fund, and requested payment of their withdrawal benefits on the basis that the benefits accrued to them as a result of their dismissal on 31 July 2009. The Fund refused to pay their benefits, stating that the employees had been reinstated and not re-employed. The affected employees referred the complaint to the Pension Funds Adjudicator (the Adjudicator), who, on 14 December 2012, dismissed the complaint, stating that the employees had been in continuous employment with the Municipality, as there had been no break in their service or their membership with the Fund.
Fund claimed payment of arrear pension fund contributions from Municipality on above basis of no break in service of employees or their membership of the Fund
8. The Fund then claimed payment of alleged arrear pension fund contributions from the Municipality.
9. The dispute was limited to eighteen employees, who, after their re-employment, elected to be members of the second respondent, the Municipal Employees Pension Fund (MEPF), a fund to which the Municipality paid contributions during the period in dispute, i e 2009 to 2013.
10. The issues to be determined in this appeal were the following:
10.1 firstly, whether the doctrine of res judicata applies in view of the adjudicator’s determination and whether the Municipality and the MEPF are estopped from arguing that the affected employees’ memberships of the Fund had terminated;
10.2 secondly, whether the affected employees were re-employed or reinstated in terms of the settlement agreement; and
10.3 lastly, whether the Fund’s claim (up to and including September 2010) had prescribed.
FINDINGS OF THE SUPREME COURT OF APPEAL
Molefe JA (Saldulker, Molemela, Mabindla-Boqwana JJA and Siwendu AJA concurring)
res judicata and issue estoppel
Fund submitted: Adjudicator already determined that employees were reinstated, as opposed to re-employed, ito settlement agreement – rendering matter res judicata or, alternatively, on basis of issue estoppel, Municipality and MEPF could not argue otherwise
11. The Fund submitted that the Adjudicator had already determined that the employees were reinstated as opposed to being re-employed in terms of the settlement agreement, and this, it argued, rendered the matter res judicata; alternatively, the Municipality and the MEPF should be estopped from arguing otherwise, on the basis of issue estoppel. It was further argued that the Adjudicator’s determination was not appealed or challenged and, therefore, binding on the Fund and the affected employees.
12. Section 30 O(1) of the Act provides:
‘Any determination of the adjudicator shall be deemed to be a civil judgment of any court of law had the matter in question been heard by such court, and shall be so noted by the clerk or the registrar of the court, as the case may be.’
ito the Act: a determination by Adjudicator is of equal force to a civil judgment – party aggrieved ought to apply to HC to have determination set aside
13. Accordingly, the determination is of equal force to a civil judgment. If any party is aggrieved by a determination made by the Adjudicator, such party ought to apply to the high court to have the determination set aside.
requirements of res judicata (Coote (SCA)): (i) matter must be between same parties; (ii) matter must be based on same cause of action (i e involve same issue for determination); (iii) relief sought must be same
14. The doctrine of res judicata is founded on the policy considerations that there should be finality in litigation, and an avoidance of a multiplicity of litigation or conflicting judicial decisions on the same issue or issues. It is trite that a matter is res judicata when a competent court or similar tribunal has given a final judgment on it, and the following three requirements are satisfied (Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; [2014] 3 All SA 431 (SCA); 2014 (5) SA 562 (SCA) (Coote), at paragraph [11]):
14.1 first, the matter in which judgment has been given must be between the same parties as in the previously decided matter;
14.2 second, the matter must be based on the same cause of action, which is to say that it must involve the same issue for determination; and
14.3 third, the relief sought must be the same.
requirements of issue estoppel (Smith (SCA)): (i) above 2 requirements remain; (ii) whether issue of fact or law was essential element of judgment on which reliance placed – permits court to dispense with 3rd requirement where same issue of fact or law has been finally decided in previous litigation between same parties
15. Over the years, the courts have relaxed these requirements, where circumstances so justify, by applying a doctrine which has become known as issue estoppel. In that instance, the requirements that remain are that the parties are the same and the issue that has arisen is the same:
‘Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed. ... Relevant considerations will include questions of equity and fairness, not only to the parties themselves but also to others’ (Smith v Porritt and Others [2007] ZASCA 19; 2008 (6) SA 303 (SCA) (Smith (SCA)), at paragraph [10]).
16. The purpose of issue estoppel:
‘so it has been stated, is to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue. … Issue estoppel therefore allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties’ (Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA), at paragraph [23]).
issue estoppel in casu
SCA: Fund could not rely on issue estoppel because not all parties in HC were in the matter determined by Adjudicator (i e Municipality)
17. The Fund did not even get past the starting blocks on the requirements of issue estoppel because not all the parties in the high court were in the matter determined by the Adjudicator.
18. When the Adjudicator gave her determination, the Municipality was not a party in the proceedings. The determination made by the Adjudicator on 14 December 2012 specificallycited ‘KC Sonja and 56 Others (complainants) v SAMWU National Provident Fund (respondent)’ as the parties. The Municipality was mentioned in the determination only as the employer and no relief was sought against it. In other words, the Adjudicator was fully aware of the involvement of the Municipality and the role it played in the unfolding of the matter, but did not require to have it included as a party to the proceedings. Upholding the issue estoppel point would give rise to potential unfair consequences, as the Municipality was not given any opportunity before any court to be heard. That should have been the end of the matter.
apart from this, issue in HC was not that which was finally determined by Adjudicator: Adjudicator dealt with complaint about Fund’s refusal to pay employees withdrawal benefits following their dismissal from employment; in HC, Fund sought to enforce payment of contributions by Municipality
19. Nevertheless, even the issue that arose in the high court was not that which was finally determined by the Adjudicator. Before her, the complaint had been about the Fund’s refusal to pay the complainants, who were the employees of the Municipality, that is, ‘withdrawal benefits following their dismissal from employment on 31 July 2009’.
20. In the high court, the Fund sought to enforce payment of contributions by the Municipality. The Adjudicator had not decided this issue. While the settlement agreement may have been the basis of her findings, that was not determinative of the obligations of the employer.
21. Issue estoppel therefore found no application in the present matter, and the high court had been correct in rejecting the Fund’s argument in that regard.
interpretation of the settlement agreement – whether the relevant employees were reinstated or re-employed
22. Section 13A(1) and (2) of the Act reads as follows:
‘13A Payment of contributions and certain benefits to pension funds
(1) Notwithstanding any provision in the rules of a registered fund to the contrary, the employer of any member of such a fund shall pay the following to the fund in full, namely -
(a) any contribution which, in terms of the rules of the fund, is to be deducted from the member’s remuneration; and
(b) any contribution for which the employer is liable in terms of those rules.
(2) (a) The minimum information to be furnished to the fund by every employer with regard to payments of contributions made by the employer in terms of subsection (1), shall be as prescribed.
(b) If that information does not accompany the payment of a contribution, the information shall be transmitted to the fund concerned not later than 15 days after the end of the month in respect of which the payment was made.’
s13A of Act: employer participating in a fund (in casu the Municipality) – (i) had to pay to Fund any contributions for which employer was liable; (ii) as well as any contributions deducted from members’ remuneration
23. Section 13A of the Act, therefore, places certain obligations on the ‘employer’ participating in a fund. The Municipality, in this case, had to pay to the Fund any
contributions which the Municipality (as a participating employer) was liable for in terms of the rules of the Fund, as well as any contributions which were deducted from the members’ remuneration. In order to determine the value of contributions due to the Fund, certain minimum information had to be delivered to the Fund (s13A(2) of the Act).
24. Section 13A(7) of the Act provides for special statutory interest on late payment of pension fund contributions.
25. The Fund’s rules provide for circumstances in which membership may lawfully terminate.
rule 3.2 of Fund’s rules: (i) member may not withdraw from Fund while he remains in service; (ii) member’s membership of Fund ceases on cessation of service (unless remains entitled to a benefit ito these rules)
26. Rule 3.2 of the Fund’s rules provides:
‘3.2.1 A member may not withdraw from the Fund while he remains in service [‘service’ is defined as ‘active permanent employment with an employer for not less than twenty hours per week’].
3.2.2 A member’s membership of the Fund shall cease on cessation of service unless he remains entitled to a benefit in terms of these rules’ (this rule was upheld in SAMWU v Umzimkhulu Local Municipality [2019] 3 BPLR 628 (SCA)).
rule 4.1.1 of Fund’s rules: a member who is in service, shall contribute to Fund – these contributions shall be deducted from his salary or wages at end of each month and paid by employer to Fund
27. Rule 4.1.1 of the Fund’s rules provides:
‘A member who is in service shall contribute to the Fund at the rate specified in the Schedule. The contributions shall be deducted from his salary or wages at the end of each month by his employer and paid to the Fund.’
28. It is common cause that the affected employees were members of the Fund until their dismissalon 31 July2009. The dispute between the parties was whether the employees were reinstated or re-employed in terms of the settlement agreement concluded on 8 October 2009 and ceased to be members of the Fund.
approach to interpretation: (i) regard must be had to language used in light of ordinary rules of grammar and syntax; (ii) regard must be had to context of each clause and, with reference to agreement as a whole (iii) regard must also be had to apparent purposes so as to give a commercially sensible meaning; (iv) furthermore, regard must be had to facts giving rise to an agreement or document; (v) there is an obligation to take contextual approach; (vi) a sensible meaning is to be preferred to one that leads to an insensible or unbusinesslike result or undermines apparent purpose of document; (vii) point of departure is language of provision itself, read in context and having regard to purpose of provision and background to preparation and production of document (Endumeni Municipality (SCA))
29. The supreme court of appeal has held that, when interpreting a document, the clauses must be interpreted by having regard to the language used in the light of the ordinary rules of grammar and syntax and in the context of each other and the agreement as a whole and their apparent purposes, so as to give them a commercially sensible meaning (Roazar CC v The Falls Supermarket CC [2017] ZASCA 166; [2018] 1 All SA 438 (SCA); 2018 (3) SA 76 (SCA), at paragraph [9]).
30. The constitutional court has further confirmed that the fact that a court in interpreting a document must have regard to the facts giving rise to an agreement or document, and
that there is an obligation on courts to take a contextual approach to the interpretation of contracts, is peremptory (University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC), paras 80 and 81).
31. The supreme court of appeal further held that, when a court is seized with the interpretation of an agreement, a sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document, and that the point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document (Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA)) (Endumeni Municipality)
analysis
meaning of reinstatement (Equity Aviation Services (CC)): employees resume employment on same terms and conditions that prevailed at time of their dismissal –period out of work regarded as suspension of employment contract; thereafter, original contract simply revives – it is aimed at placing employee in position he would have been but for unfair dismissal
32. In interpreting the meaning of ‘reinstatement’, the constitutional court, in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2008] ZACC 16; [2008] 12 BLLR 1129 (CC); 2009 (1) SA 390 (CC); 2009 (2) BCLR 111 (CC), at paragraph [36], held:
‘The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. ... It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal.’
33. If an employee is reinstated, he or she resumes employment on the same terms and conditions that prevailed at the time of dismissal. The period during which the employee was out of work is regarded as a suspension of the employment contract. The original contract simply revives.
34. This much was said in Nel v Oudtshoorn Municipality [2013] ZASCA 37; (2013) 34 ILJ 1737 (SCA), at paragraph [10]:
‘From the provisions of the [Labour Relation Act] and the cases I have cited, it is clear that by reinstating a dismissed employee, the employer does not purport to conclude a fresh contract of employment. The employer merelyrestores the position to what it was before the dismissal.’
meaning of re-employment (Tshongweni (LAC)): replacement of old employment contract with new employment contract, which may or may not entail different terms and conditions
35. Re-employment, on the other hand, entails new terms and conditions of employment contracts. Benefits arising from the past employment relationship are not extended to the new employment relationship. Re-employment is not a defined term. Reemployment would also occur where it is decided to regard the previous employment relationship as terminated and the replacement thereof with new employment, which may or may not be on different terms (Tshongweni v Ekurhuleni Metropolitan Municipality (2012) 33 ILJ 2847 (LAC) (Tshongweni (LAC)), at paragraph [37]).
36. It is trite that, when interpreting a statute, the language in the legislation should still be read in the ordinary sense and that the words in a statute must be given their ordinary meaning in accordance with the context in which they are found (Bellevue Motors CC v Johannesburg City Council 1994 (4) SA 339 (W), at 342F–G).
37. Consideration must be given to the context in which the provisions appear, the apparent purpose to which it is directed, and the material known to those responsible for its production (Endumeni Municipality, at paragraph [18]).
38. The inevitable point of departure is the language used in the provision under consideration (Commissioner for the South African Revenue Service v United Manganese of Kalahari (Pty) Ltd [2020] ZASCA 16; 2020 (4) SA 428 (SCA), at paragraph [8]).
39. Rule 3.2 of the Fund is clear. A member may not withdraw from the Fund while he remains in service. In terms of the rules of the Fund, when an employee is dismissed, then his membership in the Fund terminates.
40. On 31 July 2009, the various employees of the municipality were dismissed after engaging in an unprotected strike.
the Fund relied on paras 1 and 3 of settlement agreement to argue that employees’ memberships of Fund were revived on 8 October 2009
41. The Fund relied on paragraphs 1 and 3 of the settlement agreement to argue that the employees’ memberships with the Fund were revived on 8 October 2009. The relevant terms of the settlement agreement were the following:
41.1 first, the employees who were dismissed were employed by the Municipality from 8 October 2009, in their previous positions subject to certain conditions; and
41.2 second, no salary, benefits or compensation would be paid for the period from 30 July 2009 until 7 October 2009 when they were unemployed and no retrospective salaries/benefits would be paid by the Municipality.
SCA conclusion wrt Endumeni Municipality (SCA): reference to no salary, benefits or compensation and no retrospective salaries/benefits during period of unemployment, sensibly interpreted, entails re-employment and not reinstatement
42. The triad of text, context and purpose canonized in Endumeni Municipality is trite. The text of the settlement agreement, in paragraph 2, that reads, ‘...no salary benefits or compensation ... and no retrospective salaries/benefits...’, when sensibly interpreted, is clearly understood to mean that the parties (the Municipality and the employees) had intended re-employment instead of reinstatement.
recognising of previous years of service by employer is concession made by employer for specific purpose of calculating employees’ long leave and notch increases regarding remuneration
43. Paragraph 3 of the settlement agreement that reads, ‘the employees’ previous years of service will be recognised as if they were employed continuously’ had to be read in its context. Paragraph 3 was a concession made by the Municipality for a specific purpose of calculating the employees’ long leave and notch increases in regard to remuneration.
furthermore, purpose and surrounding circumstances of settlement agreement are clearly at odds with reinstatement: (i) employees received new employee numbers; (ii) employees freshly elected a pension fund to which their pension fund contributions
could be made; (iii) employees freshly elected a medical aid fund; (iv) annual leave and sick leave cycles commenced on 1 October 2009
44. The purpose and surrounding circumstances of the settlement agreement are that the employees:
44.1 received new employee numbers;
44.2 freshly elected a pension fund to which their pension fund contributions would be made;
44.3 freshly elected a medical aid fund; and
44.4 annual leave and sick leave cycles commenced on 1 October 2009.
45. These factors and the circumstances in which the settlement agreement was concluded, as well as the conduct of the parties after its conclusion, were clearly at odds with reinstatement.
46. In applying the aforesaid interpretative principles on the terms of the settlement agreement in this matter, the context in which the agreement was concluded, and the conduct of the parties after its conclusion, it could not be disputed that the intention of the Municipality and the employees was that the affected employees had in fact been re-employed and not reinstated.
47. Notably, it has been recognised that, where an employee is re-employed on a different medical aid, it is re-employment and not reinstatement (Johnson Matheu (Pty) Ltd v National Union of Metalworkers of South Africa and Others (2012) 33 ILJ 2420 (LC), paras 19 to 20).
application of conclusions reached by SCA: if no salaries and benefits paid retrospectively and they were not paid for period of unemployment, it means that no contributions would be deducted for payment to Fund for that period – thus Fund was not entitled to enforce payment of such contributions
48. The benefits in terms of paragraph 2 of the settlement agreement ordinarily refer to contributions to an employee’s pension fund and medical aid, which are part of the employee’s remuneration. Thus, if no salaries and benefits were paid retrospectively and none would be paid for the period that the employees were unemployed, as paragraph 2 provided, then it means that no contributions would be deducted for payment to the Fund for that period. Accordingly, the Fund was not entitled to enforce payment of such contributions. It also could not revive the membership of the employees based on the arrangement they had with the employer, except if provided for in the settlement agreement or the Fund rules (if/where legally permitted to do so).
SCA further conclusion: HC’s finding, that employees had been re-employed and not reinstated, was correct; appeal not successful
49. In sum, the supreme court of appeal agreed with the submissions made by the respondents’ counsel that, in line with the authorities, the only possible interpretation which could be given to the settlement agreement was that the high court’s findings, that the employees had been re-employed and not reinstated, was correct. The appeal on this ground could not therefore succeed.
order
50. In the result, the following order was made: The appeal was dismissed with costs, including the costs of two counsel.
3.1 DELICTUAL CLAIM CANNOT CO-EXIST WITH A CLAIM UNDER THE LRA; IN THE CASE OF AN ALLEGED OMISSION, THE ENQUIRY INTO WRONGFULNESS ENTAILS A DETERMINATION WHETHER OR NOT THERE IS A LEGAL DUTY ON THE EMPLOYER TO ACT POSITIVELY TO PREVENT HARM
Member of the Executive Council for Education, KwaZulu-Natal v Singh
Unreported case no 1188/2021
(2023) 44 ILJ 2447 (SCA)
[2023] 9 BLLR 863 (SCA)
(2023) 34 SALLR 370 (SCA)
(a) What is the approach to be applied to determine whether there is a legal duty on an employer to avoid harm being negligently caused to an employee?
(b) With reference to Gouda Boerdery BK v Transnet Ltd 2005 (5) SA 490 (SCA), what approach did the supreme court of appeal follow in determining the presence or otherwise of wrongfulness, as opposed to the presence or otherwise of negligence?
(c) There is a traditional reluctance in our law to impose liability for omissions, now supported by the constitutional right to equality. On the other hand, where the conduct of a public authority or functionary is involved, it is usually the business of such public authority or functionary to serve the interests of others. What are some of the considerations identified by the supreme court of appeal as to the imposition of legal duties on such authorities or functionaries and, more specifically, in the employment environment?
(d) In the scenario where an employee is employed in the public sector and was allegedly victimised by a co-employee in a more senior position, and the employer did not intervene, is such negligent omission actionable in delict, thereby generating an obligation on the employer to compensate the employee?
(e) The supreme court of appeal had the opportunity to consider the judgment of the high court in Jacobs v Chairman, Governing Body, Rhodes High School and Others 2011 (1) SA 160 (WCC). In this case, the governing body of the employer was held liable in delict for the attack executed by a learner on a teacher. On what basis did the supreme court of appeal determine that the question as to whether or not an employer must take reasonable steps to prevent psychological or physical harm to its employee and the failure to do so justifying an award of compensation must always be answered with reference to the facts and circumstances of a particular claim?
(f) On what basis did the supreme court of appeal find that the mere employment relationship between parties, without more, does not establish a duty on the employer to ensure that no harm is suffered by an employee?
(g) In the scenario where an employee elects not to follow an internal grievance procedure but, instead, makes a conscious decision to institute action against the employer on the basis of a delict, what are the considerations identified by the supreme court of appeal to be taken into account when determining that such employee will not be entitled to this cause of action?
(h) The supreme court of appeal also found that public policy dictates that a delictual claim is not to co-exist with a claim under the LRA – it found that, if a delictual claim is permitted, a dismissed employee can litigate in the court for more compensation than that provided by the legislature in the LRA. What were the main considerations underpinning such approach?
INTRODUCTION
Ms Singh (employee) instituted action in the HC, claiming compensation in delict from her employer; awarded R1.3m, together with interest and costs (±7 years’ income)
1. The respondent (Ms Singh) instituted action in the KwaZulu-Natal Division of the High Court, Durban (the trial court), claiming compensation in delict, citing the Member of the Executive Council for Education as the defendant.
2. The high court granted judgment in favour of Ms Singh for payment of a sum of just under R1.3 million, together with interest and costs (the amount was said to represent the present value of seven years’ income).
3. With the leave of the supreme court of appeal, the department appealed against that order.
PERTINENT FACTS OF THE CASE
about 7 years before reaching compulsory retirement age of 65, employee took early retirement; alleged that she was compelled to do so because she suffered from clinical depression on basis of her employer not taking reasonable steps to prevent principal of school (Mr Padayachee) from victimising her over long period of time
4. Ms Singh had been employed for many years by the Provincial Department of Education, KwaZulu-Natal (the department) as an educator. During the period material to this appeal she was employed to teach at a primary school in the department’s Umlazi district.
5. In July 2011, about seven years before she reached the usual compulsory retirement age of 65, the respondent took early retirement, which she was entitled to do.
6. The respondent alleged that she had been compelled to that course as she had started to suffer from clinical depression because of the failure of her employer to take any reasonable steps to prevent the principal of her school, a Mr Padayachee (Padayachee), from victimising her over a long period of time. But for that, the respondent alleged, she would have worked until age 65, and, in the result, was entitled to be compensated by her employer for the income she had lost as she did not, and could not, work for what would have been the last seven years of her working life.
Padayachee died while trial was under way and was not able to give evidence –employer argued appeal on basis that Singh had been victimised
7. The central feature of the case Ms Singh sought to make in her pleadings, and through the presentation of evidence at trial, was that she had been victimised by Padayachee. Counsel for the department was content to argue the appeal on the basis that Ms Singh had been victimised. They had little choice in the matter as, unfortunately. Padayachee died whilst the trial was underway, and before he was able to give evidence. Almost all, if not all, the allegations of victimisation made by Ms Singh could only be answered in a meaningful fashion on behalf of the department by Padayachee.
8. Notwithstanding counsel’s concession, an understanding of what is meant by ‘victimisation’ in this litigation was necessary in order to contextualise, in part, the claim that a cause of action had indeed been available to Ms Singh, and that it was proved. The account of the complaints came almost exclusively from Ms Singh’s evidence, and could be summarised as follows:
8.1 in 2002, it had come to Ms Singh’s attention that a child had been mistreated by another teacher and, through the head of department, she made a report about the incident. She expected to be told of what had become of the matter, despite the fact that her head of department told her that it was not the duty of the principal to report back to her;
8.2 Ms Singh had been called to a meeting in the principal’s office where, instead of dealing with the issue, the principal had raised what Ms Singh described as petty issues, such as the way she dressed and the time she spent chatting to colleagues, and the like, complaints which, according to Ms Singh, Padayachee could have raised with any number of her colleagues, but had not. Her evidence was to the effect that, from this point onwards, Padayachee had adopted a vindictive attitude to her;
8.3 in March 2003, a meeting had been convened to select a head boy and head girl. On 10 March 2003, the principal had entered her class and, in front of the learners, had told her that he was going to charge her for breaching confidentiality, presumably in connection with the matter of the selection process that was underway. He instructed her to see him in his office after school, but it appeared that nothing came of the matter;
8.4 during 2003, the post of head of department was advertised and Ms Singh was not shortlisted. She lodged a grievance pertaining to Padayachee’s participation in the shortlisting process and the outcome was a direction that the process be recommenced. The record revealed that the committee dealing with the grievance directed that Padayachee should not take part in the process in order to avoid any perception of bias. Notwithstanding this, Ms Singh was aggrieved at ultimately not being appointed;
8.5 in 2004, Padayachee removed Ms Singh from the science department, notwithstanding that the subject was her speciality. In the result, she had to prepare to teach in new learning areas;
8.6 in 2004, her teaching load was increased substantially and Ms Singh found it difficult to cope with marking. The principal’s attitude was that he controlled the allocation of work. In the same year, Padayachee stopped sending Ms Singh to workshops;
8.7 during 2006, Padayachee ignored Ms Singh altogether, but was nevertheless responsible for allocating her a heavy workload. It seemed that he no longer allowed her to run assemblies and continued to exclude her from going to workshops;
8.8 in 2008, her allocated subjects included Afrikaans, which she was not qualified to teach. It did appear that she nonetheless managed to do it. There was also an issue around Valentine’s Day. It appeared that a circular had been sent to the staff, but not to her, about some decorations and celebratory refreshments being available in the staff room on 14 February. Ms Singh wrote a letter to Padayachee saying that she was being marginalised. Some days later, the principal opened the letter and read it to the staff; and
summary of complaints from Singh’s evidence: (i) after making report that a child had been mistreated by another teacher, Padayachee adopted a vindictive attitude; (ii) Padayachee removed Singh from science department, notwithstanding that this subject was her speciality; (iii) her workload was increased; (iv) Padayachee stopped sending Singh to workshops; (v) Padayachee treated Singh differently to other staff members, e g when her family member died and she wanted to attend a funeral, she was required to produce death certificate, which was not case iro other staff
8.9 in September 2009, a member of Ms Singh’s family died and she wanted to attend the funeral. She asked a colleague to seek permission for her, and the head of the department called her to say that the principal had said that, if she wished to leave at 11 o’clock in the morning, she had to produce a death certificate. Ms Singh asked the principal why it was that the same request was not made of other staff members. His response had been to become aggressive and he told her that, if she was not happy, she should leave the school.
9. A report of an investigation into the affairs at the school, undertaken in 2005, was annexed to Ms Singh’s particulars of claim. This report identified ‘deep-rooted divisions
that existed in the school’. The report, however, did not address the relationship between Mr Padayachee and Ms Singh. The report made no recommendations which could possibly have been construed by the officials of the Department, to whom it was delivered, as a call upon them to attend, in particular, or indeed at all, to the relationship between Mr Padayachee and Ms Singh.
FINDINGS OF THE SUPREME COURT OF APPEAL
Olsen AJA (Ponnan ADP and Meyer JA concurring)
10. It was against the above factual background that the central allegations in Ms Singh’s particulars of claim had to be read. After setting out the fact that the investigation had occurred, and its recommendations, the pleading continued as follows:
‘Despite the aforegoing, [the appellant] negligently, wrongfully and unlawfully failed to take any or all of the intervention steps referred to in [the report of the investigation discussed above] or to take any other reasonable steps to protect [the respondent] from being harassed by the principal, as a consequence of which the principal was able to intensify his victimisation of [the respondent] unchecked.’
11. It was pleaded, in the alternative, that, because the report had not identified measures to deal with her particular situation, the victimisation of Ms Singh could continue. However, the report itself advised against interventions in respect of particular educators. Steps that could or should have been recommended and taken were neither pleaded nor revealed in evidence.
12. The Department denied each of these allegations. Wrongfulness and negligence were put squarely in issue by that denial.
13. The particulars of claim went on to allege that, as a result of the victimisation, Ms Singh had become severely depressed and had to be hospitalised, could no longer function as an educator, and had been compelled to take early retirement. Those allegations were also denied. Causation was accordingly also in issue.
Singh sought to hold her employer liable in delict to compensate her on grounds of its alleged omission to take steps to prevent the onset of depression and associated emotional cost to her
14. Ms Singh sought to hold the department liable in delict to compensate her on the grounds of its alleged omission to take steps to prevent the onset of depression and the associated emotional cost to her.
wrongfulness, negligence and causation were placed in dispute
15. No authority is needed for the proposition that, in our law, wrongfulness in the case of omissions is not assumed as it is in the case of physical injury or damage to property. A plaintiff relying on an omission must establish that circumstances were such that the defendant came under a legal obligation to act positively in order to prevent the harm.
a plaintiff relying on an omission, such as Singh in casu, must establish that there is a legal duty to act positively in order to prevent harm – Singh bore the onus of establishing wrongfulness, negligence and causation
16. In the circumstances, Ms Singh bore the onus to establish each of wrongfulness, causation and negligence.
17. In terms of s4(1) of the Employment of Educators Act 76 of 1998 (the Act), the Minister of Education (the minister) determines the conditions of service of educators, but must do so subject to both the provisions of the LRA and any collective agreement concluded in the Education Labour Relations Council. Acting in terms of that section, the minister’s
determination of such conditions was first published in Government Gazette No 19767, dated 18 February 1999. The document is entitled ‘Personnel Administrative Measures’, and is commonly referred to as ‘PAM’.
18. Subsequently, and by publication in Government Gazette No 29248, dated 22 September 2006, a ‘Policy and Procedure on Incapacity Leave and Ill-Health Retirement’ (PILIR), which had been prepared by the department of Public Service and Administration, was declared to be applicable to educators. That was also done in terms of s4 of the Act. It became in effect an addition to PAM and is commonly referred to as ‘PILIR’.
19. In terms of s6(1)(b) of the Act, the appointment, promotion or transfer of an educator in the service of a provincial department is to be made by the head of the department. The department, in this case, compiled and implemented a Policy on Transfer for Educators. The version of that document is the one implemented with effect from 1 March 2008.
20. Section 18(1) of the Act introduces a list of other misconduct with the introductory statement:
‘Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –’.
21. Three of the items on the list that follows are relevant in the present context.
21.1 an employee ‘misuses his or her position in ... a school . to prejudice the interests of any person’ (s18(1)(g));
21.2 an employee ‘displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour’ (s18(1)(t)); and
21.3 an employee ‘intimidates or victimises fellow employees, learners or students’ (s18(1)(u)).
22. It is worth observing that these provisions applied equally to both Ms Singh and Padayachee. The latter was not the former’s employer. They were co-workers, the one having a level of authority over the other.
23. Subsection 18(2) of the Act is to the effect that, if it is alleged that an educator has committed any such misconduct, the employer is obliged to institute disciplinary proceedings in terms of the disciplinary code and procedures which are contained in schedule 2 to the Act.
24. Item 3(1) of schedule 2 of the Act provides that the Code of Good Practice contained in schedule 8 to the LRA, insofar as it relates to discipline, constitutes part of schedule 2 to the Act.
25. PAM is divided into chapters dealing with many employment-related issues affecting educators teaching in schools administered by a provincial department. Grievance procedures are dealt with in chapter H. There is no need to furnish a full account of them.
Singh was entitled to lodge formal grievance and, seeing that it concerned the headmaster, she could do so directly to regional or district level; if grievance did not generate satisfactory outcome, employee would then be entitled to register formal grievance with Education Labour Relations Council (Council) and matter would proceed from there
26. An employee, like Ms Singh, is entitled to lodge a formal grievance, and, where it concerns the conduct of the employee’s headmaster, to do so directly to the regional or district level. If lodging the grievance does not generate a satisfactory outcome, the