IN THE HIGH COURT OF SOUTH AFRICA

Transcription

1 CASE NO: 471/2007 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: UNIVERSITY OF NORTH WEST 1 st APPLICANT STAFF ASSOCIATION TABANE SAMUEL MATSHEGO QHOBELA KITCHNER SEMULI THABO SAMUEL MOLELEKENG 2 nd APPLICANT 3 rd APPLICANT 4 th APPLICANT and THE CAMPUS RECTOR FOR THE 1 st RESPONDENT NORTH WEST UNIVERSITY M P KHUMALO N O THE VICE CHANCELLOR OF THE NORTH 2 nd RESPONDENT 3 rd RESPONDENT WEST UNIVERSITY THE NORTH WEST UNIVERSITY 4 th RESPONDENT MAFIKENG CAMPUS

2 PATRICK DEALE N O 5 th RESPONDENT J U D G E M E N T LEEUW J: INTRODUCTION: [1] This is an application for review in terms of Rule 53 of the Uniform Rules of the Superior Courts ( the Uniform Rules ). The grounds for review are stated as follows in the Notice of Motion: 1 Reviewing, correcting and setting aside the ruling and/or award made by the Second Respondent in his capacity as the chairperson of the disciplinary committee, wherein he found the Second, Third and Fourth Applicants to be guilty of misconducts and meted out sanction of dismissals against them. 2. Reviewing, correcting and setting aside the ruling and/or award made by the Fifth Respondent in his capacity as the chairperson of the review panel wherein he confirmed the dismissals of the Third and fourth Applicants. 3. That the First Respondent and any other Respondents opposing this application be directed to pay the costs of this application jointly and severally, the one paying the other to be absolved. 4. Further and/or alternative relief. Background: [2] The First Applicant ( the Staff Association ) is the 1 trade union established in accordance with the provisions of the Labour Relations Act No 66 of 1995 ( The LRA ). The Second Applicant ( Matshego ) was the president of the Staff Association, and the Third Applicant ( Semuli ) and the Fourth Applicant ( Molelekeng ) were the deputy 1 Section 95(5) and (6) of the LRA 2

3 presidents of the Staff Association. Matshego, Semuli and Molelekeng ( the three applicants ) were all employees of the Fourth Respondent ( the university ). [3] Matshego, who was appointed as a lecturer at the university from 1997 was on study leave from February 2006 until September When he returned from study leave he wrote and disseminated a letter ( communiqué ) dated 4 October 2006, which was addressed to all members of the Staff Association. For easy reference, I quote it hereunder: Now is the time 1. I take this opportunity to thank you for supporting the leadership of the Staff Association during my absence from the University. I also thank the Staff Association Executive Committee for the strong leadership in my absence. However, there is time for everything in life and now is the time to seriously challenge the status quo and promote our sense of unity at Mafikeng Campus and North West University, in general. 2. I regret that in my absence the institutional landscape has been altered in various ways which negatively affect and threaten not only employment and service conditions, but also our freedom and rights to be treated equally with dignity and respect. THE MINORITY CANNOT RULE OVER THE MAJORITY FOREVER!!!!! 3. It has come to my attention that Mafikeng Campus has become an academic colony of the North West University under White minority rule who core HR functions and systems, under representation at top management and Council levels, devious appointments, lack of opportunities for promotion of staff, planned staff retrenchments, mean closure of support and academic departments, unilateral redeployment of White staff from Potch, malicious termination of electronic services to our vocal nonconformists, lack of consultation and participation in decision making and constructive/open communication by Mafikeng Campus Management, incessant acting positions by former Potch White descendants only at strategic positions (and eventual settlement for permanent employment) and threats of dismissals, to name but a few. It is now clear that North West University advocates federalism, autocracy, racism, sexism and disrespect for the rights and freedom of the AFRICAN personnel at Mafikeng Campus. ENOUGH IS ENOUGH!!!!!!! 3

4 4. The Staff Association cannot accept that the pre 1994 era be perpetuated at the North West University. I, therefore, request you to revolutionize the calling for collective and unified struggle against oppression and suppression. AN INJURY TO ONE IS AN INJURY TO ALL, INCLUDING OUR GENERATION AND CIVILIZATION!!!!! 5. By this communiqué, I will appreciate your way forward when we meet soon. I also look forward to meeting MAFIKENG CAMPUS SPIES! Tabane Matshego President [4] This communiqué was brought to the attention of the university. The university regarded Matshego s conduct as a breach of the Recognition Agreement entered into between the university and the Staff Association on the 15 th November 2004 in accordance with section 213 of the LRA. 2 Matshego was requested by the university to unequivocally retract the communiqué. The following letter dated 20 October 2006 was addressed to him by the university, which was co signed by the Third Respondent ( Dr Eloff ) and First Respondent ( Prof Kgwadi ) YOUR COMMUNIQUE DATED 4 OCTOBER 2006 (NOW IS THE TIME) We refer to your communication of 4 October 2006, which we attach for ease of reference. We take note of the contents of your communiqué displayed in public to your members. We view your communiqué contents as tantamount to bad faith actions on your part and as a total disregard of our Recognition Agreement. You have displayed total disrespect of our valid Recognition Agreement, to which you are a signatory party. 2 Section 213 defines collective agreement means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the hand (a) one or more employers; (b) one or more registered employers organisations; or (c) one or more employers and one or more registered employers organisations; 4

5 Our view is that you are in material breach of the following clauses of the Recognition Agreement: 3.2 The parties recognise and acknowledge that sound and equitable labour relations and practices are essential for the promotion of goodwill and the economic and general well being of employees, and the effective operation of the University. 3.3 The parties declare their commitment to: the common objectives of labour peace and stability; fairness and justice for employees at their workplace and in connection with their employment; and the maintenance of lawful and acceptable work, behavioural standards, and productivity; 3.4 The Union agrees to ensure that its official and members cooperate with the University in creating an orderly and productive work situation. 3.5 The parties commit to abide by this agreement in a spirit of mutual respect and understanding and shall use their best endeavours to ensure that this agreement is fully understood and adhered to by all concerned. 3.6 The Union agrees to take all possible steps to persuade its members from participating in any form of intimidation or victimisation of any employee of the University The Trade Union Representative (shop stewards) shall endeavour to facilitate the settlement of disputes, between members and between members and the University They shall also ensure that this agreement and other agreements regulating employment by the University are properly observed both by themselves and the Union s members and management Both parties re affirm their fundamental belief in dialogue, discussion and negotiation as being the preferred method of conducting industrial relations. We view your letter to Staff Association members as an attempt to alienate employees 5

6 from Institutional Management and campus management. Your allegations against management of advocating federalism, autocracy, racism, sexism and disrespect for the rights and freedom of the AFRICAN personnel at Mafikeng Campus are both unfounded and unsubstantiated. Your letter is interspersed with all kinds of allegations which are not conducive to relationship building and/or maintenance. On the contrary it creates a sense and an impression of advocating negative and ill feelings towards the campus and Institutional Management. Your call in para. 4 amounts to an incitement to unrest and instability. Nothing in the letter creates the impression of positive attitude to assist with labour relationship building. There are adequate processes and procedures to be used in order to resolve differences and disputes contained in the Recognition Agreement. In the circumstances and in terms of clause we insist that you as an employee organisation rectify the situation in the following manner. Retraction of the communiqué dated 4 October 2006, unequivocally and in writing to Institutional and Campus Management. Retraction to be faxed to the Institutional and Campus Managements. The written retraction must be placed on all Mafikeng campus notice boards. You are hereby given 5 working days written notice to rectify such breaches in terms of clause 16.2 of the Recognition Agreement. We expect a written response and confirmation of compliance with our requirement by no later than the close of business on 30 October We remain, as in the past, committed to mutual respect in the spirit of the Recognition Agreement. We trust you will approach this situation as seriously as we do and urgently call upon you to respond as required. Yours faithfully T Eloff Vice Chancellor D Kgwadi Campus Rector 6

7 cc : Council Executive [5] Matshego responded through a letter addressed to Dr Eloff and Prof Kgwadi wherein he categorically refused to retract the communiqué. He further stated the following in his response.we would appreciate your reply to our memoranda of demands dated 14 October 2005 and 8 th August 2006 in order to appreciate how you value and respect the processes and procedures of the clauses of the Recognition Agreement and the LRA (My emphasis). The university responded through a letter signed by Dr Eloff and Prof Kgwadi on the 26 th October 2006 and addressed to Matshego reminding him of the grievance procedures prescribed in the Recognition Agreement and reiterated their demand that he retract the communiqué. Matshego was given up to the 30 th October 2006 to rectify the breach of the Recognition Agreement. [6] When Matshego failed to act accordingly and despite his protestations, the university decided to withdraw the recognition agreement and stated the following, inter alia, in a letter dated 31 st October 2006 which was addressed to Matshego:.. the university is left with no option but to withdraw your union s recognition and to terminate the agreement insofar as you are concerned. 5. The termination and withdrawal are effective from 6 November Normal organizational rights as provided for in the Labour Relations Act 66/1995 will be accorded to yourselves from 7

8 the 6 th November [7] According to Matshego in his founding affidavit, the Staff Association decided to refer the matter to the Commission on Conciliation, Mediation and Arbitration (CCMA) to resolve the legality of the cancellation and/or the withdrawal of the Recognition Agreement by the university. The CCMA ruled that the matter should be resolved internally. Prof Kgwadi, who deposed to the affidavit on behalf of all the Respondents, avers that during the CCMA proceedings, it was common cause that the recognition agreement had validly been terminated. Subsequently on the 22 nd November 2006, the Staff Association, through a notice signed by Matshego as the President and Simuli and Molelekeng as the 1 st and 2 nd Deputy Presidents respectively, informed the university that they were embarking on a Protest Action. They stated, amongst others, that their action was in accordance with the LRA which gives statutory recognition to such protest action only when it is aimed at promoting or defending the socio economic interests of workers. [8] Simultaneously with the letter dated 22 November 2006 referred to above, the Staff Association directed a letter signed by the three employees and titled MOTION OF NO CONFIDENCE IN THE RECTOR OF MAFIKENG CAMPUS to the Acting Chairperson of Council (the University Council). The university responded through a 8

9 letter signed by Prof Kgwadi and addressed to Matshego as President of the Staff Association on the same date (22 November 2006) wherein he directed his attention to the provisions of the Labour Relations Act and stated, inter alia that: This letter serves to bring to your attention that your intended action(s) do not comply with the LRA and the Code of Good Practice on Picketing, as well as the Regulation of Gatherings Act, 1993 specifically in the communication of your intention, the circumstances in which the intended action(s) are planned and the appropriate and prescribed procedures to be followed. Your intended actions and conduct are viewed as a violation of the prescriptions of the said Acts and Code of Disciplinary Code of the university. You are hereby advised to comply with the prescriptive provisions in the interest of your members and North West University employees in general failing which disciplinary and other legal measures will be taken against you. [9] Despite the university s warning, some of the employees of the university inclusive of Semuli and Molelekeng, participated in a march to the office of the MEC for Education of the North West Province on the 23 rd November 2006 and delivered a Memorandum of Grievances which was to be conveyed to the National Minister of Education. There were also some protest actions which took place within the Mafikeng Campus. [10] Consequential upon the employees protests, the university served the three employees with notices on the 22 nd November 2006, temporarily suspending them with immediate effect from employment with full pay. The reasons for their suspension were inter alia, that they were investigating allegations of disruptive, disorderly and unacceptable behaviour in respect of the unprotected protest action which was sanctioned by the three employees without having 9

10 followed the correct procedures in terms of the LRA. [11] Matshego was served with a notice on the 28 th November 2006, calling upon him to attend a disciplinary hearing to be held on the 4 th December He was charged with four different counts relating to the abovementioned correspondence directed at the university and at the members of the Staff Association and insubordination. At the disciplinary hearing he was acquitted of two of the four charges of misconduct proferred against him on the bases that he acted in his capacity as the president of the Staff Association when he issued the letters and the communiqué and further that he was not at the Mafikeng Campus on the 22 nd November 2006 when the protest marches took place. He was however convicted of having incited the protest action by writing the letter of the 22 nd November 2006 and for aligning himself with the protest action, which took place in his absence. After the finalization of the disciplinary hearing, he was served with further notices inviting him to a disciplinary hearing of the 4 th December Semuli and Molelekeng were also served with disciplinary notices for the date of the 4 th December They were all charged with similar counts of misconduct save for Semuli who had an additional charge of having signed a bulletin of the 17 th November 2006 in which he discouraged members of the Staff Association from attending a meeting called by the Vice Chancellor of the university. 10

11 [12] Disciplinary hearings were jointly conducted in respect of all three employees on the 4 th and 13 th December They were each charged with four counts of misconduct which ranged from, gross insubordination, conduct aimed at interfering with normal activities of the university and misconduct based on their failure to comply with the provisions of the LRA in respect of the protest action of the 22 nd and 23 rd November 2006 respectively. The three employees were convicted of some of the charges by the chair of the disciplinary hearing and acquitted of others. A sanction of dismissal was recommended. It is not necessary at this stage to refer to the details of the charges proferred against the three employees. To the extent that is necessary I may deal therewith at a later stage in my judgement. I have already alluded to the fact that Matshego was acquitted of three counts. Semuli was convicted of 3 counts whilst Molelekeng was found guilty of two counts. They were all dismissed on the 11 th January 2007 by the university. Semuli and Molelekeng lodged notices of an internal review on the same date. The Review Committee confirmed their dismissals on the 2 nd February The decision was communicated to them in writing by the university on the 7 th February They decided to institute review proceedings in this Court. The Notice of Motion was filed with the Registrar of this Court on the 12 th March Points in limine 11

12 [13] Prof Kgwadi, on behalf of the Respondents, took a preliminary point of misjoinder, based on the fact that he was cited in his personal and official capacity as Campus Rector, and the joinder of Dr Eloff, who was also cited in his personal and official capacity. Prof Kgwadi further intimates that there is no indication that he has been cited in his representative or official capacity and further that he did not employ the individual respondents. [14] They further took a point that the Staff Association has no legal standing to institute these proceedings and further that the Applicants cannot act on behalf of the Staff Association because they are no longer employees of the university. The Applicants aver that Prof Kgwadi and Dr Eloff have been cited in their official capacities in that they act on behalf of the university and as such have a direct and substantial interest in these proceedings. They further assert that they are officials of the university and had to be cited in order for them to pertinently answer to issues raised against them in the founding affidavit. They further state that they (the three Applicants) are still employees of the university and that they will be regarded as such until the challenge against their unlawful dismissal is resolved by this Court. I will defer the preliminary points for later in my judgement and will proceed with other issues raised by the parties hereto. Applicants Assertions 12

13 [15] The Applicants have amplified their grounds of review in the founding affidavit of Matshego whose deposition is on behalf of all Applicants. He states that the ruling made by the chairperson of the disciplinary hearing and the chairperson of the Review Panel must be reviewed and set aside on the following basis: In substance, 15.1 That the Second and Fifth Respondents failed to apply the appropriate test in evaluating the evidence before them and by improperly drawing inferences which were not supported by facts The Second and Fifth Respondents have misdirected themselves by failing to apply their minds to the issues which they were called upon to decide The Second and Fifth Respondents have misdirected themselves as to the nature of the dispute and have issued rulings that failed to take into account the direct evidence that was adduced before them corroborated by documentary proof It is not justifiable in the light of the reasons given thereof and the evidence before the Second and Fifth Respondents; 74.2 Alternatively, the Second and Fifth Respondents committed a gross irregularity in the conduct of the disciplinary and review proceedings; 74.3 Further in the alternative, they should be reviewed in terms of the broader grounds envisaged in Section 158(1)(g) of the Act Further in the alternative, the conduct of the Second and Fourth Respondents constitutes administration action for the purpose of PAJA and furthermore constitutes an exercise of public power which is reviewable under the constitutional principle of legality and/or the rule of law, more so that: these decisions did not comply with the mandatory and material procedure or conditions prescribed by the Labour Relations Act read with the Constitution of the Republic of South 13

14 Africa which recognises labour rights, freedom of expression and freedom of association (section 6(2)(b) of PAJA); the decisions were influenced by material error of law (section 6(2)(d) of PAJA); the decisions were taken for reasons not authorised and/or justifiable in law, more so that the Second Respondent failed to disclose his interest in the matter and the Fifth Respondent who was not in the Management of the Fourth Respondent was called as a chairperson of the Review Committee (section 6(2)(3)(i) of PAJA; the decisions were taken because relevant considerations were not taken into account (section 6(2)(e)(iii) of PAJA; the decisions were arbitrary and capricious in nature in that despite the material that was placed before the Second and Fifth Respondents, the sanction of dismissal was meted out against the Second, Third and Fourth Applicants (section 6(2)(e)(vi) of PAJA. 75. The Second and Fifth Respondents committed a defect and/or a gross irregularity and/or that their rulings/awards are not justifiable in the light of the reasons given, in particular, when they found that the Fourth Respondent (as the employer) has discharged its onus and/or that the Second, Third and Fourth Applicants dismissals are both procedurally and substantively fair despite the following: 75.1 they failed to distinguish that the Second, Third and Fourth Applicants were acting in their capacities as officials and/or office bearers of the First Applicant; 75.2 they failed to recognise that the Second, Third and Fourth Applicants were acting within the Constitution of the First Applicant when they were charged with the misconduct levelled against them; 75.3 they failed to recognise that the Second, Third and Fourth Applicants were not acting in their personal capacities and for their own interests, but were acting in the interests of the First 14

15 Applicant s constituency and advancing their interests; 75.4 they failed to recognise that the Second, Third and Fourth Applicants were carrying the functions, mandates and instructions of the First Applicant when they were charged under the circumstances which led to their dismissals. 76. Furthermore, the Second and Fifth Respondents rulings/awards are reviewable for the following reasons; 76.1 allegations of misconduct which were levelled against the Second, Third and Fourth Applicants are not genuine misconducts committed by themselves because they carried the objectives and the mandate of their subjects as informed by the Constitution of the First Applicant; 76.2 the Fourth Respondent when dismissing the Second, Third and Fourth Applicants did so by inconsistently applying his disciplinary rules and choosing the Second, Third and Fourth Applicants to be dismissed, despite the fact that they were not the only ones involved in the alleged charges of misconduct levelled against them which led to their dismissals; 76.3 the Rector who was the first witness and having a direct interest in the proceedings which led to the dismissals of the Second, Third and Fourth Applicants also wore a different hat when he confirmed the dismissals of the Applicants during and subsequent to the internal review proceedings and this constitutes an anomaly which goes to the core of unfair dismissals; 76.4 an outsider not being a management official (Fifth Respondent) chaired the review panel, deliberated and confirmed the dismissals of the Third and Fourth Applicants the dismissals of the Second, Third and Fourth Applicants were based on the charges and reasons found by the Second and Fifth Respondents. However, then their dismissals were confirmed by the First Respondent, different reasons for dismissals were furnished. [16] The further grounds of review are that the Second and Fifth Respondents rulings/awards failed to take into account the following 15

16 relevant provisions of the Labour Relations Act which ought to have guided them when dealing with the Applicants. : a) Section 4 of the Labour Relations Act No 66 of 1995 ( LRA ); b) Section 5 of the LRA; c) Section 8 of the LRA; d) Section 12 of the LRA; e) Section 69 (1) of the LRA; and f) Section 97 of the LRA. Submissions: behalf of applicants [17] It is submitted by Mr Mokoena on behalf of the Applicants that their right to recourse is not only limited to the dispute resolution mechanisms provided by the LRA but that this Court has jurisdiction to adjudicate over this dispute because the three employees convictions on misconduct and dismissals were not only unfair but unlawful as well. Mr Mokoena further argues that this Court should determine: a) Whether the employees should be penalised and victimized by being dismissed for participating in union activities; b) Whether the employees should have been dismissed for participating in a protest action which they had not physically participated in; 16

17 c) Whether the Respondents, in dismissing the employees, applied the sanction consistently as against the other employees who had participated in the protest action; d) Whether the Chairpersons rulings were justifiable in relation to the reasons given and the evidence adduced before them; and e) Whether the employees dismissals were both procedurally and substantively fair. Respondents Averments and submissions on their behalf [18] Prof Kgwadi, who deposed to the answering affidavit on behalf of the Respondents, states that the Applicants are limited to the common law grounds of review, which are to be distinguished from an appeal. The Respondents further add that the Applicants ought to have exercised their rights as prescribed in the LRA by referring their alleged unfair dismissal dispute to the dispute resolution mechanisms or forums prescribed by the LRA. Respondents aver that the fact that Matshego intimates that he was absent during the protest action would have entitled him to refer the alleged unfair dismissal based on this misconduct to the CCMA. With regard to the sanction, the Respondents submit that the issue of fairness of the sanction should be adjudicated in terms of the dispute resolution mechanism of the LRA and not by way of review in this Court as this would not 17

18 constitute a ground for review. [19] Respondents further take the view that the Promotion of Administrative Justice Act No 3 of 2000 (PAJA) is not applicable in this dispute and that the Constitution does not convey any further or additional grounds of review since the rights of Applicants with regard to a fair labour process and fair administrative action in terms of the Constitution have been codified and specified in the LRA and PAJA respectively. [20] Counsel for the Respondents Mr Pretorius further argues that: a) the fact that the Applicants allege that they were dismissed because of their union activities constitutes an automatically unfair dismissal that should be adjudicated by the Labour Court in terms of section 191 (5)(b) of the LRA; b) an unfair dismissal dispute should be dealt with in terms of the dispute resolution procedures provided for in the LRA; c) a breach of freedom of association in respect of the three employees activities in the Staff Association falls squarely within the definition of unfair labour practice which has to be adjudicated in terms of the LRA; d) the dismissals did not constitute administrative action and 18

19 therefore PAJA would not apply; e) dismissals cannot be classified as performance of any functions in terms of the LRA and may therefore not be reviewed under section 158 (I)(g) of the LRA; f) allegations concerning inconsistency and bias would relate to the fairness of the dismissals which should be dealt with in terms of the LRA; g) section 97 (2) & (3) of the LRA does not grant immunity from disciplinary action but only indemnifies liability for losses suffered by third parties. h) Applicants participated in an unlawful picket, (an unprotected strike) which took place in the employee s premises without the necessary permission being granted by the University; i) the First and Fifth Respondents ((the Chairpersons) considered all the facts and duly applied their minds during the adjudication of the disciplinary hearing and review thereof respectively; j) the employees were charged in their personal capacities as employees; k) the appointment of an independent chairperson for the review 19

20 process was fair and that the Applicants did not object to his appointment and further that this does not constitute a ground for review; l) the Staff Association has no locus standi to institute these proceedings; m) Prof Kgwadi and Dr Eloff have been misjoined; and n) That the Applicants failed to establish grounds for review. The Law [21] Section 157 (1) and (2) of the LRA provides that: (1) 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. (2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996 and arising from (a) employment and from labour relations; b) 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 an employer; and c) the application of any law for the administration of which the Minister is responsible. There have been conflicting decisions in our Courts with regard to whether or not section 157(1) of the LRA ousts the jurisdiction of the 20

21 High Court in respect of labour disputes even though section 157 (2) (a) of the LRA prescribes for concurrent jurisdiction. [22] The interpretation of the provisions of section 157 (1) were dealt with in the case Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA). In this case, the Respondent (Wolfaardt) had instituted an action for breach of contract emanating from his contract of employment with the Appellant (Fedlife Assurance). Wolfaardt claimed damages for the breach based on the fact that Fedlife Assurance, terminated his fixed term contract of employment prior to its expiry, this repudiated the contract and consequently committed a breach of their contract. Fedlife took a preliminary point of lack of jurisdiction by the High Court to adjudicate labour disputes. Nugent AJA (as he then was) in (par [7] of the judgement, which was the majority decision of the Court, held the view that The 1995 Act (LRA) does not expressly abrogate an employee s common law entitlement to enforce contractual rights and nor do I think that it does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the Legislature had no intention of doing so. The Court took the view that the common law right to enforce a fixed term employment contract remained intact because section 186 (b) of the LRA designed a new remedy available to employees whose fixed term contracts would not be renewed by the employer, to seek redress based on unfair dismissal whereas the premature termination of a fixed term contract is not covered under this section (emphasis added). The Court further held the view that [27] whether a particular dispute falls within the terms of section 191 of the LRA 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 21

22 employee s complaint. Where it is not, and the subject in dispute is the lawfulness of the dismissal, then the fact it might also be, and probably is, unfair, is quite coincidental for that is not what the employee s complaint is about. (My emphasis). The Court then concluded that the premature termination of the fixed term contract of employment was unlawful and that the High Court had jurisdiction to hear the matter. Even in this case, Nugent AJA held the view that where the employee s dispute is based on the unfairness of his or her dismissal, the matter falls to be adjudicated by the Labour Court as contemplated by section 157 (1) of the LRA. [23] Almost three months after the decision of Fedlife Assurance Ltd v Wolfaardt, supra, the Constitutional Court dealt with the same question raised in respect of section 157 (1) of the Act in Fredericks and Others v MEC for Education and Training, EC 2002 (2) SA 693 (CC). The Applicants, who were teachers employed by the Department of Education in the Eastern Cape Province, (the Department) had applied for voluntary retrenchments, which applications were turned down by the Department. They lodged an application in the High Court wherein they sought relief against the Department, contending that their right to equality in terms of section 9 of the Constitution of the Republic of South Africa Act No 108 of 1996 (the Constitution) was violated as well as their right to administrative justice in terms of section 33 of the Constitution. The Department took the point that the High Court s jurisdiction was ousted by the provisions of section 157 (1) of the LRA. The High Court granted an order in favour of the Department. The teachers were granted leave by the High Court to 22

23 argue this point at the Constitutional Court. The basis of the High Court decision was that 3 section 24 of the LRA ousted the jurisdiction of the High Court to adjudicate upon a dispute that arose out of the interpretation and application of a collective agreement. The Constitutional Court held that had the Court a quo considered section 169 of the Constitution, 4 it would have realized that the CCMA is not a Court (in terms of the LRA) which has equivalent jurisdiction with the High Court; that the arbitration proceedings in the CCMA were subject to review in the Labour Court; that section 169 of the Constitution, by assigning or taking away jurisdiction from the High Court in certain matters, confers such jurisdiction to a Court of similar status. The Court went further to held that the CCMA may have the power to interpret collective agreements (even those that are founded on infringements of constitutional rights) but it does not have the same power of review, assigned to the Labour and High Courts. The Constitutional Court concluded that there is no general jurisdiction afforded to the Labour Court in employment matters, and that the jurisdiction of the High Court is not ousted by section 157 (1) simply because a dispute is one that falls within the sphere of employment relations. Furthermore, the Court held [41] that there is no provision affording the Labour Court jurisdiction to determine disputes arising from an alleged infringement of constitutional rights by the state acting in its capacity as employer, other than section 157 (2). 3 Section 24(1) of the LRA provides: Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 142A or 158 (1) (c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration. 4 Section 169 of the Constitution: A High Court may decide (a) any constitutional matter except a matter that (i) only the Constitutional Court may decide; or (ii) is assigned by an Act of Parliament to another court of a status similar to a High Court; and (b) any other matter not assigned to another court by an Act of Parliament. 23

24 That section 157 (2) cannot be interpreted as ousting the jurisdiction of the High Court since it provides for concurrent jurisdiction. [24] In United National Public Servants Association of SA v Digomo NO & Others (2005) 26 ILJ 1957(SCA) at par [5] the Court, through Nugent AJ, who wrote the majority judgement, endorsed the above decisions and reiterated the fact that it is sufficient to say that the appellant s claim as formulated in its application did not purport to be one that falls within the exclusive jurisdiction of the Labour Court the High Court has jurisdiction even if the claim could have been formulated as an unfair labour practice. (emphasis added). It was held that High Court had jurisdiction. [25] In Boxer Superstores Mthatha & Another v Mbenya [2007] 8 BLLR 693 (SCA), Cameroon JA, having referred to the cases of Fedlife Assurance Limited v Wolfraardt supra, and Fredericks v MEC for Education and Training, Eastern Cape supra, held the view that section 157 (1) of the LRA does not oust the jurisdiction of the High Court simply because a dispute is one that falls within the overall sphere of employment relations. Cameroon JA referred to several other cases, inter alia United National Public Servants Association of South Africa v Digomo NO & Others supra and Denel (Pty) Ltd v Vorster 2004 (4) SA 481 (SCA) and concluded that it is now well established that the jurisdiction of the High Court (in respect of labour matters) is not excluded by the provisions of section 157 (1) of the LRA. 24

25 [26] In Denel (Edms) Bpk v Vorster supra, the employee (Vorster) was summarily dismissed by his employer (Denel) without disciplinary proceedings having been followed. Vorster instituted an action in the High Court for damages based on breach of his employment contract and injuria. Vorster s action was not based on the substantive unfairness of his dismissal but rather the procedural aspect thereof, which he alleged was flawed. The disciplinary procedures were stipulated in the disciplinary code and were expressly incorporated in the conditions of employment of each employee. Denel withdrew its objection to the jurisdiction of the High Court but Cameron JA held the view that the Court would have been entitled to raise the issue of jurisdiction mero motu. [27] In Transnet Ltd and Others v Chirwa 2007 (2) SA 198 (SCA), which matter was decided on the 29 th September 2006, the majority decision of the Court, through Mthinyane JA, held that the employee (Ms Chirwa) had raised a constitutional issue justiciable in the High Court and that the High Court s jurisdiction was not ousted by the provisions of section 157 (1) of the LRA. Ms Chirwa s case was based on the provisions of section 188 of the LRA read with item 8 and 9 of the Code of Good Practice: (Dismissal), as well as remedy under the provisions of PAJA. The Court also had opportunity to determine whether the dismissal of an employee constituted an administrative action as defined in section 1 of PAJA. The Court decided that dismissal of Ms Chirwa by Transnet, her employer, did 25

26 not constitute an administrative action, because Transnet was not exercising public power or performing a public function as defined in PAJA. But the majority of the Court decided that the act of dismissal from employment by an employer constituted administrative action. The Court, through Conradie JA held in his separate judgement, that an employee, even though he or she has a claim or cause of action under PAJA, such employee is limited to the dispute resolution mechanism prescribed in the LRA. Ms Chirwa appealed to the Constitutional Court with the leave of the Supreme Court of Appeal. The matter was heard at the Constitutional Court on the 28 th November [28] Boxer Mthatha & Another v Mbenya supra, the SCA held the view that unlawful dismissal is distinguishable from the unfair dismissal as prescribed in section of the LRA. The Court held that an employee may sue in the High Court for relief based on the fact that disciplinary proceedings and the dismissal were unlawful. The basis of this view is that every employee has a contractual claim under the common law to a pre dismissal hearing which, if breached, is triable in the High Court. (See par [6] of the judgement.) Cameroon JA further took the view that characterization of the employee s dispute by its substance rather than form, leaves out of account the fact that jurisdictional limitations often involve questions of form, and that the employee.. formulated her claim carefully to exclude any recourse to fairness relying solely on contractual 5 Every employee has the right not to be (a) unfairly dismissed; and (b) subjected to unfair labour practice. 26

27 unlawfulness. See par [12] on 697 of the judgement. (My emphasis). [29] The Constitutional Court in the case of Chirwa v Transnet Ltd and Others 2008 (3) BLLR 251 (CC), had opportunity to pronounce on the provisions of section 157 (1) of the LRA. The question which was to be decided, was whether or not Parliament, by conferring the jurisdiction to determine labour disputes upon the Labour Court and other mechanism established in the LRA. expressly or by implication excluded the High Court from adjudication of labour disputes. The other issue considered was whether the action of dismissal from employment by an employer constituted an administrative action as defined in PAJA. [30] The facts of the case in Chirwa s case, supra, are that Ms Chirwa was employed by Transnet Limited and was found guilty of misconduct after a disciplinary enquiry was held. She decided to lodge a formal written grievance against Ms Smith who was her senior and had presided at the disciplinary enquiry. She refused to participate in the disciplinary proceedings. The enquiry was finalized in her absence. Ms Chirwa referred the dispute to the CCMA for conciliation, alleging that her dismissal was both procedurally and substantively unfair. When the dispute could not be resolved, the certificate of outcome was issued by the Commissioner of the CCMA. The dispute was referred to the CCMA for arbitration in accordance with section 191 of the LRA. Ms Chirwa approached the High Court instead of proceeding with the dispute at the CCMA for arbitration. She sought an order setting aside the disciplinary proceedings as well as reinstatement to her former position. [31] At the hearing of Ms Chirwa s matter at the High Court, her case was 27

28 based on the fact that her employer failed to comply with the mandatory provisions of Items 8 and 9 of schedule 8 of the LRA, and further submitted that the decision to dismiss her from employment was reviewable in terms of section 6 (2)(b) and 6 (2)(f)(i)of PAJA. I will deal with the latter issue later in my judgement. [32] The Constitutional Court made a critical analyses of the Supreme Court of Appeal decision in Chirwa and referred to the cases therein cited, which authorities had persuaded the Supreme Court of Appeal to conclude that the High Court has concurrent jurisdiction with the Labour Court in relation to Ms Chirwa s claim. [33] In dealing with the provisions of section 157 of the LRA, Skweyiya J, who wrote the majority decision, stated the following: (41) It is my view that the existence of a purpose built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non purpose built processes and forums in situations involving employment related matters. At least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims. [34] Skweyiya J went further to refer to the Explanatory Memorandum on the Labour Relations Bill wherein the main purpose and objectives of the LRA were fully explained, and stated the following: [47] The purpose of labour law as embodied in the LRA provide a comprehensive system of dispute resolution mechanism, forums and remedies 28

29 that are tailored to deal with all aspects of employment. It was envisaged as a one stop for all labour related disputes. The LRA provides for matter such as discrimination in the workplace as well as procedural fairness, with the view that even if a labour dispute implicates other rights, a litigant will be able to approach the LRA structure to resolve the dispute. [35] The Constitutional Court in par [50] of the judgement, referred to section of the LRA and held the view that this section heralds the LRA as the pre eminent legislation in labour matters that are dealt with by that Act. Only the Constitution itself or a statute that expressly amends the LRA can take precedence in application to such labour matters. [36] Of great significance in the judgement of Skweyiya J, is what is stated in par [54] of the judgement of Chirwa supra. keeping in mind the aim of the LRA to be a one step shop dispute resolution structure in the employment sphere, it is not difficult to see that the concurrent jurisdiction provided by section 157 (2) at the LRA is meant to extend jurisdiction of the Labour Court to employment matters that implicate constitutional rights. However, this cannot be seen as derogating from the jurisdiction of the High Court in constitutional matters, assigned to it by section 169 of the Constitution, unless it can be shown that a particular matter falls into the exclusive jurisdiction of the Labour Court. (My emphasis). [37] The Constitutional Court further distinguished the case of Fredericks and Others v MEC for Education and Training, Eastern Cape and Others supra, from Chirwa s case, in that in the former case, the Applicants did not rely on section 23 (1) of the Constitution and they did not rely on the provisions of the LRA. Skweyiya J concluded in Chirwa supra at par [59] that.where exclusive jurisdiction over a matter is 6 Section 210 of the LRA provides If any conflict, relating to matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution or any Act expressly amending this Act, the provisions of this Act will prevail 29

30 conferred upon the Labour Court by the LRA or other legislation, the jurisdiction of the High Court is ousted. The effect of section 157 (1) is therefore to divest the High Court of Jurisdiction in matters that the Labour Court is required to decide except where the LRA provides otherwise. (emphasis added). [38] This pronouncement by the Constitutional Court settles the uncertainty surrounding the issue of concurrent jurisdiction between the Labour Court and the High Court as prescribed in section 157 of the LRA. This leads me to the issue on whether or not dismissal from employment constitutes an administrative action as defined in PAJA. [39] Section 1 of PAJA defines an administrative action as meaning any decision taken, or any failure to take a decision, by a) an organ or state, when (i) (ii) exercising a power in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation; or b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect. [40] In Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and 30

31 Others [2006] II BLLR 1021 (SCA) the Supreme Court of Appeal held that PAJA, by necessary implication, extended the power to adjudicate and apply the remedies available to parties at the CCMA arbitrations to the High Court. In this case, unlike in the case of Ms Chirwa, the employee had referred his dispute to the CCMA and the Commissioner had issued an arbitration award in the employee s favour. (It is not necessary to refer to the facts of the case). The majority of the Supreme Court of Appeal judges, through Cameroon JA concluded that a Commissioner of the CCMA is performing an administrative function as defined in section 1 of PAJA in arbitration proceedings. An appeal was lodged in the Constitutional Court, leave having been granted by the Constitutional Court to the employee (Sidumo) and the Congress of South African Trade Unions ((COSATU) which union was allowed by the Constitutional Court to join as party to the proceedings. [41] In Sidumo v Rustenburg Platinum Mines 2008 (2) BLLR 158 (CC), the question was whether or not the review provisions of PAJA are automatically applicable to the administrative action of a Commissioner of the CCMA. The Constitutional Court did a comparison exercise of the review procedures in the LRA and PAJA. Navsa AJ (as he then was) endorsed the finding by the SCA that the arbitration by a commissioner is a administrative action (par [94]) but went further to state that the review provisions of PAJA do not automatically apply to the dispute. He went further to remark that: 31

32 (97) If PAJA were to apply, section 6 thereof would not allow for such exclusivity and would enable the High Court to review CCMA arbitrations. This would mean that the High Court would have concurrent jurisdiction with the Labour Court. This negates the intended exclusive jurisdiction of the Labour Court and provides a platform for forum shopping. The Court then held that the SCA erred in holding that PAJA applied to arbitration awards in terms of the LRA. [42] In Chirwa v Transnet Ltd and Others referred to above, the Constitutional Court was also faced with the question of whether Ms Chirwa was entitled to rely on PAJA by contending that her dismissal as an employee of a State organ amounted to an administrative act as defined in PAJA. Ms Chirwa s application did not succeed with regard to her reliance on PAJA, because she failed to prove that Transnet s action, in dismissing her, constituted administrative action as defined in section 1 of PAJA. The Supreme Court of Appeal, through the majority decision, in the case of Transnet Ltd and Others v Chirwa, held the view that Transnet, even though it was a State organ, by dismissing Ms Chirwa from employment, was not exercising public power or performing a public function in terms of any legislation, but that it had derived its power from its employment contract between itself and the employee. Conradie JA, who agreed with the judgement of Mthinyane JA and Japhta JA (who concurred with Mthinyane JA), went further and held the view that It would thus seem perverse that PAJA should, in respect of those matters specially assigned to the Labour Court, and without expressly saying so, effectively have repealed the exclusivejurisdiction provision of the LRA in respect of public sector 32