Dwane-Alpman v Premier, Eastern Cape (485/2007) [2007] ZAECHC 65; (2008) 29 ILJ 541 (E) (31 July 2007)

Dwane-Alpman v Premier, Eastern Cape (485/2007) [2007] ZAECHC 65; (2008) 29 ILJ 541 (E) (31 July 2007)

The court found that a valid and binding contract of employment existed between the applicant and the Premier, Eastern Cape, despite the absence of a finalized performance agreement. It was an implied term that the applicant would perform duties assigned by the Premier until such agreement was concluded. The Premier's reliance on the right to terminate during probation without a hearing was misplaced, as the applicable regulations and the Labour Relations Act required procedural fairness, including a hearing before dismissal. The applicant was not afforded such a hearing, rendering the dismissal prima facie procedurally and substantively unfair. The court further held that the applicant's...

Citation
[2007] ZAECHC 65
Parties
Applicant: Phumla Dwane-Alpman; Respondent: The Premier, Eastern Cape
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
31 July 2007
Case Number
485/2007
Procedural Posture
Urgent Application / Application for Interim Relief Pending Mediation and Arbitration
Outcome
Application granted. The applicant is reinstated with retrospective effect and full benefits pending mediation and arbitration.
Judges
Kroon
Legal Topics
Unfair Dismissal, Procedural Fairness, Interim Interdict, Public Service Act, Performance Agreement
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Interim Interdict Public Service Act Performance Agreement

Case Brief

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Parties

Phumla Dwane-Alpman

Applicant

The Premier, Eastern Cape

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief Pending Mediation and Arbitration

Legal Issues

  1. 1 Whether a valid contract of employment existed between the applicant and the Premier, Eastern Cape.
  2. 2 Whether the termination of the applicant's employment during probation was lawful and procedurally fair.
  3. 3 Whether the applicant is entitled to urgent interim reinstatement pending mediation and arbitration.

Ratio Decidendi

The court found that a valid and binding contract of employment existed between the applicant and the Premier, Eastern Cape, despite the absence of a finalized performance agreement. It was an implied term that the applicant would perform duties assigned by the Premier until such agreement was concluded. The Premier's reliance on the right to terminate during probation without a hearing was misplaced, as the applicable regulations and the Labour Relations Act required procedural fairness, including a hearing before dismissal. The applicant was not afforded such a hearing, rendering the dismissal prima facie procedurally and substantively unfair. The court further held that the applicant's...

Court Disposition

Application granted. The applicant is reinstated with retrospective effect and full benefits pending mediation and arbitration.

Orders

  • The respondent is directed forthwith to reinstate the applicant, with retrospective effect to 7 July 2007, in her position as special adviser to the office of the Premier, Eastern Cape, with full benefits, pending the determination of mediation and arbitration proceedings as provided for in the contract, annexure...
  • The costs of the application will be paid by the respondent, such costs to include the costs attendant on the employment of two counsel.