Unlawful Dismissals

The labour court, in Archer v The Public School – Pinelands and Others (2018) 29 SALLR 20 (LC), considered the following important issue: In the scenario where an employee challenges the termination of his employment contract as an unfair dismissal before the CCMA, is such employee subsequently entitled to claim that the said termination does not constitute a dismissal in law?

INTRODUCTION

In a pre-trial conference, the applicant and the first and second respondents agreed that certain points in limine should be heard by way of a separate hearing, supported, to the extent necessary, by oral evidence.

It was agreed that the first point in limine, relating to whether due notice was given of the institution of proceedings to the third respondent, be dealt with at a later stage of the litigation.

CCMA: finding that applicant’s dismissal was procedurally and substantively unfair; neither the award nor ruling, that Pinelands High was the employer, was taken on review

The further points in limine challenge the labour court’s jurisdiction to hear the applicant’s claim. It is common cause that an arbitration award exists, finding that the applicant’s dismissal from his position at Pinelands High School was procedurally and substantively fair. In line with an in limine ruling by the CCMA, Pinelands High was regarded as the employer party.  Neither the ruling nor the award were taken on review and were thus binding on the parties.

PERTINENT FACTS OF THE CASE

In the labour court, the legal issues were framed by the applicant as follows:

legal issues: removal of applicant by governing body of Pinelands High unlawful as it was not the employer of the employee

‘The removal of the Applicant by the Second Respondent from the Applicant’s place of employment was unlawful in that the Second Respondent was not the Employer of the Applicant.

further issue: failure by Pinelands High to reinstate applicant and/or remedy the unlawful actions of the governing body constitutes an unlawful breach of applicant’s contract of employment

The failure on the part of the First Respondent to re-instate the Applicant and/or to remedy the unlawful actions of the Second Respondent constitutes an unlawful breach of contract of employment.’

The applicant sought reinstatement of the employment contract, alternatively, damages, to be paid by the first and second respondents jointly and severely.

Steenkamp judgment (CC): CCMA has jurisdiction to determine unfairness of dismissal but not unlawfulness

Simply put, the applicant approached the CCMA on the basis that he had been unfairly and unlawfully dismissed.  The CCMA had jurisdiction to hear his dispute only insofar as unfairness of the dismissal was concerned. The applicant was unsuccessful.

In the labour court, the applicant pleaded that his employment contract was unlawfully terminated.

FINDINGS OF LABOUR COURT

James judgment (LAC): CCMA – dismissal substantively fair; LC – employees relied solely on breach of applicable collective agreement, contended no valid dismissal: LAC rejected argument –employees themselves found that the termination of their employment contracts constituted an unfair dismissal

In James and Another v Eskom Holdings SOC Ltd and Others (2017) 38 ILJ 2269 (LAC), the labour appeal court dealt with a matter in which the two appellants referred an unfair dismissal dispute to the CCMA, where the commissioner found that their dismissal was substantively fair. On review, the employees relied solely on breach of the applicable collective agreement.  They argued that the decision of the appeal tribunal was final and binding and that the general manager’s decision to overturn the appeal tribunal’s decision was invalid and unlawful.  They therefore contended that there had been no valid dismissal and that the commissioner lacked jurisdiction to arbitrate the dispute.  The labour court rejected this argument and upheld the arbitration award.  The employees appealed to the labour appeal court, which stated as follows:

‘[20]      Section 186 of the LRA defines dismissal to mean, inter alia, that an employer has terminated a contract of employment with or without notice. The ordinary meaning of “termination” is to bring to an end. In this case, the respondent has … brought the contracts of employment of the appellants to an end. It does not matter that the general manager did so contrary to the collective agreement. The appellants were in the circumstances entitled to approach the CCMA to challenge the fairness of the conduct of the respondent as they did. Having done so, it is not open to them to abandon their arbitrated referred dispute, and claim that they had not been dismissed. Nothing barred the appellants from approaching the CCMA for relief. It all depended on how they pleaded their case to the CCMA. Termination of the contracts of employment of the appellants was a factual phenomenon which they themselves found to constitute a dismissal that was unfair. In Gcaba the Constitutional Court warned that: “Once a litigant has chosen a particular cause of action and system of remedies (for example, the structures provided for by the LRA) she or he should not be allowed to abandon that cause as soon as a negative decision or event is encountered.”’

LC: applicant not entitled, after pursuing a case before the CCMA based upon the existence of an alleged unfair dismissal, to approach the LC on the basis that the termination did not constitute a dismissal in law

The applicant in this case could not, after unsuccessfully pursuing a case in the CCMA based on the existence of an alleged unfair dismissal, now approach the labour court on the basis that the termination of his employment contract did not constitute a dismissal in law.

The labour court stated that, if an employee were to be able to pursue a new cause of action as the applicant had sought to do, the architecture of our employment law would be breached and that our guiding principle of speedy resolution of disputes would be undermined.

order of the LC

No order was made as to costs against the applicant and the labour court dismissed the claim for want of jurisdiction.

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.

What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:

(a)     where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;

(b)     where the parties reached an agreement as to what such documents purport to portray?;

(c)     where the parties reached an agreement that the documents should be regarded as evidence?

The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?

The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:

(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]

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