South Africa: High Courts - Gauteng

[3]The Applicant was appointed as acting District Senior Manager in the Department of Education, Limpopo with effect from 1 July 2004, and held this position until her summary dismissal by the Second Respondent on 31 May 2005.The dispute which led to the said dismissal has its origin in a SADTU sit-in staged in the Applicant’s office on the night of 10 May 2005.The Applicant, as a member of the District Management, was to have met with the SADTU regional structure to address the grievances of the latter. SADTU required as a pre-condition, the attendance of all management members. However, various members of the district management were unable to attend the meeting, and consequently the Applicant avers that she was given conflicting instructions as to whether she should be present at the sit-in or not. Furthermore, the team leader, Mr Marishane, had also left.
[4]The Applicant received a telephone call from the Second Respondent during the course of which she was told not to report to her General Manager, and that she would be removed from her post as she was simply employed in an acting capacity. There was no suggestion that her dismissal would be for any other reason than her non-attendance at the meeting. It is further apparent that, on the Second Respondent’s version, they had spoken telephonically at about 20h30 when the Applicant indicated that she “would go if accompanied by the police and I did not want the police to become involved.” On the 23^rd May 2005, the dispute between the Applicant and the Second Respondent was brought to the attention of the MEC concerned, who was requested to intervene so that the dispute could be dealt with in a proper fashion. It is common cause that no response was forthcoming from the Respondents. Notwithstanding such request, no formal disciplinary or dispute resolution procedures were implemented. Instead the Applicant was dismissed on 31 May 2005 without notice and accordingly placed back in her earlier position from whence she was appointed. It has subsequently come to light that on the same day a successor was formally notified of his appointment.

[5] It was submitted that in so acting the Applicant was denied a clear statement of the allegations against her and the consequences attaching thereto as well as a reasonable opportunity to make representations. She had, according to her, been unfairly dismissed (both substantively and procedurally) in terms of the Labour Relations Act 1995 (LRA), the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and s 23 of the Constitution. It should be pointed out that “dismissal” is not the correct term in the circumstances. Since she was in the employ of the department and was simply placed back in her old position, she was demoted from the acting position. Nevertheless, her case that she was treated unfairly both procedurally and substantively remains at the core of her complaint.
Argument

[6] Mr Shaba, for the Respondents, argued in limine that the relief sought by the Applicant is catered for by sections 158(1)(i), 158(1)(ii), 158(1)(iii) and 158(h) of the LRA and must be determined by the Labour Court, alternatively through the dispute resolution procedures of the accredited Bargaining Council namely, the Education Labour Relations Council or the General Public Service Sectoral Bargaining Council. A vital component of the issue raised by the Applicant in the founding papers concerns procedurally and substantively unfair “dismissal”. These issues resort, it was submitted, under the exclusive jurisdiction of the Labour Court, the CCMA and/or the relevant Bargaining Councils. Mr Davies, for the Applicant, however argued that several High Court judges have heard similar matters on the merits and that the founding affidavit had widened the scope of the present inquiry by also basing the case on s 23 of the Constitution of the Republic of South Africa and PAJA.
Evaluation

[7] The first matter to be decided is whether this Court has jurisdiction to hear this labour dispute. S 157(1) and (2) of the LRA provide as follows:

         '157     Jurisdiction of Labour Court
         (1) Subject to the Constitution and s 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.
         (2) The Labour Court has concurrent jurisdiction with the Supreme Court -
         (a)      in respect of any alleged violation or threatened violation, by the State in its capacity as employer, of any fundamental right entrenched in chap 3 of the Constitution; and
         (b)      in respect of any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as employer.

        

The section confers exclusive jurisdiction on the Labour Court in respect of matters that in terms of that Act are to be determined by the that Court. In terms of Chapters VII and VIII of the LRA read together, such a dispute (save for automatically unfair dismissals and dismissals for operational requirements which fall within the exclusive jurisdiction of the Labour Court), are to be adjudicated by the CCMA and/or any other accredited institution in terms of the LRA through conciliation and/or arbitration processes; ultimately to resort under the Labour Court. S 23(1) of the LRA provides that a collective agreement is binding on parties to such an agreement. In the First Respondent’s affidavit it is stated that the Applicant is bound by the grievance procedures as contained in Chapter H of the Personnel Administration Measure (Government Gazette 19867) of 18 February 1999 and/or Public Service Grievance Procedure, applicable to her whilst acting as the Senior District Manager. The Applicant did not file a replying affidavit and, accordingly, did not deny these averments. I will, nevertheless, in the interests of justice, accept that the Applicant has denied that she is bound by the said procedures.

[8]The fairness of the procedure followed by the Second Respondent in terminating the Applicant's acting cannot be determined without having reference to matters that fall within the purview of the LRA and more particularly Chapters VII and VIII thereof. Such matters are to be determined by the CCMA and/or relevant Bargaining Councils in terms of Chapters VII and VIII of the LRA and ultimately resort under the Labour Court in terms of S 157(1) of that Act.

[9] In Manyathi v MEC for Transport, Kwa Zulu Natal, and Another Magid J held that s 157(2) LRA merely extends the jurisdiction of the Labour Court. With reference to s 169(a) of the Constitution of the Republic, the High Court does not have authority to decide matters which are entrusted to another Court of a status similar to a High Court. I quote what the learned Judge says in this regard in a footnote and, with respect, fully agree with his interpretation of s 157(2). This approach to s 157(2) has also been approved of by Botha J in Hugh Jones and Ken Dickenson v Telkom South Africa Ltd. Supra note 1. Botha J says the following at p 5:

“In this case I am convinced that a vital component of the issue to be determined concerns unfair dismissals, unfair labour practices, and dismissals based on operational requirements, all issues that ultimately resort under the exclusive jurisdiction of the Labour Court. The applicants have attempted to disavow a reliance on unfair dismissal in their prayers, but it is clear from the body of their affidavits that they consider the process adopted by the first respondent as one that has unfairly led to the termination of their employment…”

The trend of Full Bench decisions of this Division also supports the view that where a matter is catered for in the LRA, it should be dealt with in terms of the LRA. See Molato & Others v DMG Construction 2004(4) SA 414(T); Ampofo & Others v MEC for Education, Culture, Sports & Recreation, Northern Province and Another 2002(2) SA 215(T).

[10] It could not have been the intention of the Legislature to permit an employee to raise what is essentially a labour dispute in terms of the LRA as a constitutional matter under the provisions of s 157 (2) of the LRA. Any view to the contrary would run counter to the purpose and objects of the LRA, because it would effectively mean that the High Court is called upon to determine rights which have already been given effect to and which are regulated by the LRA. To hold otherwise would be to ignore the remainder of the provisions of the LRA and the dispute resolution mechanisms created by that Act. A less narrow approach may give rise to unnecessary "forum shopping” simply because it is convenient to do so. The relief sought by the Applicant is catered for in Section 158 of the LRA. I shall now determine whether the Applicant does not, in any case, have the right to approach this Court.

[11] The applicant has based her application on the unfair procedure followed in terms of the LRA, the Promotion of Administrative Justice Act 3 of 2000 and s 23 of the Constitution of the Republic of South Africa. It has been held that s 157(1) does not necessarily mean that the LRA governs all facets of employment contracts. In Fedlife Assurance Ltd v Wolfaardt 2002(1) SA 49(SCA). it was held that the common law right of an employee to sue an employer for specific performance or damages has not been withdrawn by the LRA and that a Court other than the Labour Court may be approached in such a case. Nugent AJA ( as he then was) states the following at para [22]:

“ In my view chap 8 of the 1995 Act [ the LRA] is not exhaustive of the rights and remedies that accrue to an employee upon the termination of a contract of employment. Whether approached from the perspective of the constitutional dispensation and the common law or merely from a construction of the 1995 Act itself I do not think the respondent has been deprived of the common-law right that he now seeks to enforce. A contract of employment for a fixed term is enforceable in accordance with its terms and an employer is liable for damages if it is breached on ordinary principles of the common law.”

This interpretation does not support the applicant. The causa for her application is not a common law one on the papers, but is focused on unfair dismissal in terms of the LRA and PAJA. The causa is also not similar to the causa referred to in Naptosa & Others v Minister of Education Western Cape & Others. Supra.In that matter the Court held that the validity of the clauses in a re-employment contract were not catered for in the LRA.

[12] Applicant has also based her application on s 23 of the Constitution, which guarantees every one the right to fair labour practices. In this regard the following was stated by O’Regan J in Fredericks & Others v MEC for Education & Training, Eastern Cape & Others at paras [32], [34] and [38] : 2002(2) SA 693(CC)

“[32] As stated above, the applicants in this case have alleged an infringement of their rights under ss 9 and 33 of the Constitution. Their claim is not based on contract. It is based on their constitutional rights to administrative justice and equal treatment. They allege that the State, acting in its capacity as employer, did not act procedurally fairly in the administration of Resolution 3, and in particular in considering their applications for voluntary retrenchment. To decide this matter it is not necessary for us to consider the merits of their claim or the extent to which the State acting in its capacity as employer is obliged to comply with the dictates of s 33 or s 9. What is clear, however, is that the applicants' claim does not arise only from the provisions of Resolution 3 itself. It arises from the special duties imposed upon the State by the Constitution.

[34] It is important to note that in this case the applicants expressly disavow any reliance on s 23(1) of the Constitution, which entrenches the right to fair labour practices. The preamble to the Labour Relations Act makes it plain that the purpose of the Act is to give statutory effect to this right. The question therefore does not arise in this case whether a dispute arising out of the interpretation or application of a collective agreement gives rise to a constitutional complaint in terms of s 23(1). That question raises difficult issues of constitutional interpretation that we need not address now.”

[38] S 157(1) therefore has the effect of depriving the High Court of jurisdiction in matters that the Labour Court is required to decide except where the Labour Relations Act provides otherwise. Deciding which matters fall within the exclusive jurisdiction of the Labour Court requires an examination of the Labour Relations Act to see which matters fall to be determined by the Labour Court. It is quite clear that the overall scheme of the Labour Relations Act does not confer a general jurisdiction on the Labour Court to deal with all disputes arising from employment.” (emphasis in italics added)

Applying these principles the Constitutional Court held that the Court a quo should have dealt with the labour dispute in terms of ss 9 and 33 of the Constitution. In the present matter the applicant has referred to seven grounds in s 6 of PAJA as a basis for attacking her unfair “dismissal”. I am not convinced that a mere reference to PAJA brings her case within the jurisdiction of this Court. Of course, the facts on which the application is based are set out, but they lack the specificity to bring them under s 6 of PAJA.
[13] This is also not a case where this Court is called upon to interpret legislation in the light of the Constitution or where the constitutionality of legislation is attacked. The relevant dicta in National Education Health and Allied Workers Union v University of Cape Town and Others 2003(3) SA 1(CC). are, accordingly, also not applicable. :

[14] My conclusion is accordingly that the papers in this matter have not established any route to this Court. The Court, accordingly, does not have jurisdiction to hear this matter.

The application is dismissed with costs.

JCW van Rooyen…………………….
Acting Judge of the High Court
2005-10-24

Applicants’ Advovate : SW Davies Who did not draft the papers., New Court Chambers, Pretoria, instructed by JW Wessels & Partners Inc, Pretoria.

Respondents’ Advocate: SM Shaba, Pretoria, instructed by the State Attorney, Pretoria.