NEHAWU obo Luphumulo v General Public Service Sectoral Bargaining Council and Others (JR1285/17) [2021] ZALCJHB 472 (17 March 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: JR1285/17

In the matter between:

NEHAWU obo LUPHUMULO JAMES Applicant and THE GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL First Respondent COMMISSIONER MONDE BOYCE Second Respondent DEPARTMENT OF SAFETY AND LIAISON Third Respondent

Heard: 11 March 2021

Delivered: 17 March 2021 (This judgment was handed down electronically by emailing a copy to the parties. The 17th March 2021 is deemed to be the date of delivery of this judgment).

Summary: Application to review a jurisdictional ruling – where the jurisdictional requirements of section 17 of the Public Services

Act (PSA) are not met, there is no termination by operation of law. The effect thereof is that an employee must be allowed to resume

duty. There is no room for a claim for unfair dismissal. The bargaining council lacks jurisdiction where there is no dismissal

within the meaning of section 186 of the Labour Relations Act (LRA). The second respondent was correct in concluding that the bargaining

council lacked jurisdiction. Held: [1] The application for review is dismissed. Held: [2] There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an application in terms of which the applicant seeks to review and set aside a jurisdictional ruling issued by the second respondent. The second respondent ruled that the bargaining council lacked jurisdiction to entertain the dispute. Aggrieved thereby, the applicant launched the present application. The application is duly opposed.

Background Facts

[2] The dispute involved herein is archaic. It spurns a period of a decade and two years. Mr James Luphumulo (James) was employed by the Department of Safety and Liaison in the Eastern Cape Provincial Government (Department) as a Community Liaison Officer (CLO). From 11 May 2009 up to and including 30 June 2009, James was absent from duty. Owing to the provisions of section 17 (5) (a) (i) of the Public Services Act (PSA)[1], James was terminated as an employee of the department. On 24 August 2009, James was informed of his discharge and was invited to make any representations why the discharge should not be effected.

[3] Instead, James referred a dispute alleging unfair dismissal to the bargaining council. The appointed commissioner Robertson (Robertson) assumed jurisdiction and concluded that the dismissal of James was fair. Aggrieved thereby, James launched a review application. The application served before my sister Lallie J. In a written judgment, my sister, reviewed and set aside the arbitration award issued by Robertson and remitted the dispute back to the bargaining council. Her written judgment was delivered on 24 August 2014.

[4] The dispute was again enrolled for arbitration hearing before the second respondent, Mr Boyce. The second respondent subsequently issued the impugned ruling. He concluded that James was not dismissed.

Evaluation

[5] The applicable test in matters of this nature is that of correctness as opposed to reasonableness.[2] The applicant submits that where the jurisdictional requirements of section 17 are found to be absent, a commissioner retains jurisdiction to entertain a claim for unfair dismissal. In support of this submission reliance was placed reliance on two[3] of this Court’s judgments. One by Francis J and the other by Prinsloo J when she was still acting justice of this Court. In Khoeta, Francis J reached the following conclusion.

“[17] Once it is found that the requirements have been met, the bargaining council will lack jurisdiction to hear the dispute on the basis of s 17 (5) (a) (i) of the PSA. If the requirements have not been met, the said provisions will not have come into operation and the discharge will be invalid and the dismissal will be substantively and procedurally unfair.

[6] I am unable to agree that there will be a dismissal which is capable of being substantively and procedurally unfair. In Department of Health, Prinsloo AJ (as she then was) reached the following conclusion.

“[30] …If the requirements have not been met, the discharge will not be ex lege and the fairness of the dismissal should be considered.

[7] Regrettably I am unable to agree with a conclusion that the fairness of the dismissal should be considered. Hereunder follows my reasons why I disagree with the conclusions reached by Francis J and Prinsloo AJ.

[8] In terms of section 186 (1) (a) the LRA defines a dismissal to mean that an employer has terminated a contract of employment with or without notice. Owing to the definition, of significance is that dismissal means termination of a contract of employment and that termination must be effected by the employer. The reason why it was consistently held that section 17 terminations are not a dismissal within the meaning of the LRA is that those terminations occur by operation of law, whilst the dismissal in terms of the LRA is effected by an employer. The other reason is that in the former, no decision is required, whereas in the latter, a decision is required. The LAC in SAPO Ltd v Mampuele[4] aptly stated the law as follows:

“[12] …I am in agreement with the court a quo that ‘dismissal’ means any act by an employer which results, directly or indirectly in the termination of an employment contract.”

[9] To my mind, in an instance where the jurisdictional requirements of section 17 are not met, what becomes is the fact that the law cannot operate. Put it differently, a termination does not occur in law. Where an employer calls into aid the provisions of the section in the circumstances where the jurisdictional requirements are not met, such an employer shall be acting unlawfully and on application of the principle of legality, a Court with the necessary jurisdiction may declare that an employee has not been terminated. In such an instance, there is no room for fairness or unfairness of a dismissal. The Constitutional Court in Grootbom v NPA and another[5] concluded that where one of the essential requirements of section 17 (5) (a) (i) of the PSA has not been met, the section cannot be invoked. Importantly, the Court made the following order:

“[48] …5 it is declared that the applicant did not absent himself from his official duties without permission as contemplated in section 17 (5) (a) (i) of the Public Services Act 103 of 1994 and he continues to be in the first respondent’s employ…”

[10] Similarly, the Constitutional Court in Maswanganyi v Minister Veterans and others[6] relying on Grootbom concluded that Mr Maswanganyi did not need to apply for reinstatement as the provisions of section 59 (1) (d) of the Defence Act[7] did not find application. This was after confirming the view expressed in Steenkamp v Edcon Ltd[8] that an employee whose dismissal is invalid does not need an order of reinstatement. An appropriate order is to order an employer to allow the employee into the workplace for purposes of performing his or her duties.

[11] Regard being had to the above explicit legal position, it cannot be correct that an employee who has been invalidly terminated has as an added string to the bow, being a claim for unfair dismissal within the contemplation of the LRA. Section 185 of the LRA explicitly provides that every employee has the right not to be unfairly dismissed. Section 213 perspicuously defines dismissal to mean dismissal as defined in section 186. As indicated earlier, a termination by operation of law does not fit the definition of a dismissal as

defined[9]. It must axiomatically follow that the right set out in section 185 does not avail to an employee whose termination occurred by operation of law.

[12] Section 191 of the LRA deals with disputes about unfair dismissals. Clearly, owing to the definition of a dismissal, section 191 does not cater for any other form of termination other than one that fits the definition of termination in section 186 of the LRA. The section mandates that such disputes are to be resolved by first referring them for conciliation and if conciliation fails to

resolve them, they be referred for adjudication or arbitration, depending on the nature of the dispute.

[13] In my view, it is a fallacy to suggest that a commissioner is empowered to enquire into whether the jurisdictional requirements of a section bringing about termination by operation of law are present[10]. It is one thing for a commissioner to establish whether a dismissal as defined in section 186 has factually happened and it is another thing to establish that the law has operated or not. The better approach - in an instance where a commissioner is faced with such a question – whether the law has operated – is to decline jurisdiction. Unlike the Labour Court, the CCMA or the bargaining council is not clothed with powers to review any exercise of statutory powers. In effect, where an employer calls into aid the statutory provisions, such an employer is exercising public power, which exercise is susceptible to judicial review on application of the principle of legality.

[14] Section 192 of the LRA specifically provides that in any proceedings concerning any dismissal, as defined in section 186 of the LRA, the employee must establish the existence of the dismissal, as defined. Should an employee fail to establish that a dismissal as defined exists, the CCMA or bargaining council is not empowered to deal with the termination that may have allegedly occurred. Where section 192 refers to any dismissal, it does not mean any termination, but any termination that amounts to a dismissal as defined in section 186. The LRA knows of only two forms of dismissals; namely (a) unfair dismissal – ordinary dismissal[11] and (b) automatically unfair dismissal[12]. Any other form of termination – invalid termination - is foreign to the LRA[13].

[15] For all the above reasons this Court concludes that Francis J and Prinsloo AJ were, with respect wrong, in reaching a conclusion that a commissioner has jurisdictional powers to entertain a termination dispute in an instance where the commissioner has established that the jurisdictional prerequisites of section 17 of the PSA have not been met. On the contrary, where the jurisdictional requirements are not met, the law has not taken course and available to an employee is to demand a return to work and if not allowed, approach a Court with competent jurisdiction to issue an interdict or a declarator. Thus, this Court is not bound by those decisions on application of the stare decisis principle. Regard being had to the reasoning employed in those two judgments, the question is who would have effected the termination?

In section 186 the termination must be effected by the employer. Termination by operation of law does not require a decision by the employer[14]. That being the case, there is no room for dismissal as defined to exist.

[16] The second respondent was correct when he concluded that James was not dismissed in terms of the LRA. He was correct in concluding that James was not dismissed but was discharged by operation of law. Accordingly, the bargaining council lacked jurisdiction to hear the dispute. Dismissing the application/referral was the correct approach.

Order

[12] In the results, I make the following order:

1. The application is dismissed.

2. There is no costs order.

GN Moshoana

Judge of the Labour Court of South Africa

Appearances

No appearance.

[1] Act 103 of 1994 as amended.

[2] SARPA and Others v SA Rugby (Pty) Ltd and Others [2008] 29 ILJ 2218 (LAC) and Johnson Uniform Solutions (Pty) Ltd v Lynette Brown and Others [2014] JOL 32513 (LAC)

[3] MEC for Health v Khoeta and Others [2011] 32 ILJ 647 (LC) and Department of Health v PHSDSBC and Others [2014] 35 ILJ 2166 (LC).

[4] [2010] 10 BLLR 1052 (LAC)

[5] [2014] 35 ILJ 121 (CC).

[6] [2020] 41 ILJ 1287 (CC).

[7] Act 42 of 2002.

[8] 2016 (3) BCLR 311 (CC).

[9] See Grootbom.

[10] That becomes a duty of a Court of review. See in this regard MEC for Health Eastern Cape and Another v Kirkland Investments (Pty) Ltd [2014] ZACC 26 (25 March 2014) where it was held that the absence of a jurisdictional fact does not make the action a nullity, it simply means that the action is reviewable on the grounds of lawfulness.

[11] Section 188 of the LRA.

[12] Section 187 of the LRA.

[13] See Singhala v Ernst and Young Incorporated and another [2019] 40 ILJ 1083 (LC).

[14] Phenithi v Minister of Education and Others [2006] 9 BLLR 821 (SCA).