NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others (J 1480/2021) [2022] ZALCJHB 8 (7 February 2022)

Not Reportable

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J 1480/2021

In the matter between:

NEHAWU OBO N PHATHELA

Applicant

and

OFFICE OF THE PREMIER:

LIMPOPO PROVINCIAL GOVERNMENT First Respondent

CS MATHABATHA

Second Respondent

MV SESHIBE

Third Respondent

REAKGONA TRAVEL SERVICES AND PROJECTS Fourth Respondent

J MOHALE Fifth Respondent

EF NEMUHUYUNI Sixth Respondent

Heard: 30 November 2021

Delivered: 07 February 2022 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 07 February 2022)

JUDGMENT

TULK, AJ

[1] This is an urgent application for an interim order. The applicant union, NEHAWU, on behalf of Ms Phathela seeks a final interdict restraining the Office of the Premier from proceeding with her disciplinary inquiry on account of the fact that it constitutes an occupational detriment as contemplated in section 4 of the Protected Disclosures Act[1] (the PDA).

[2] Before turning to the merits of this application, it is necessary to determine whether this court is properly seized with the application.

The question of jurisdiction arises because, if the hearing constitutes an occupational detriment it is deemed, in terms of section 4(2)(b) of the PDA to constitute a deemed unfair labour practice. In those circumstances this Court can hear the matter only where the dispute resolution process as set out in section 191(1)(a) of the Labour Relations Act[2] (LRA) has been followed, namely where the dispute has been referred to conciliation to either the relevant Bargaining Council having

jurisdiction or the Commission for Conciliation Mediation and Arbitration (the CCMA).

Background

[3] The applicant is employed as the Director: International Relations in the office of the first respondent. On 8 February 2021 the employee, Ms Phathela, was charged with two counts of misconduct for allegedly contravening Regulations 13 and 18 of the Public Service Regulations, 2016. The charges in the main contend that she received or accepted a gratification from the fourth respondent, Reakgona Travel Services and Projects, a service provider of the first respondent. The alleged gratification is said to be a gift upgrading her economy class ticket to a first-class ticket when she returned from official duty in Wuhan China to OR Tambo International Airport on 19 July 2018. She is accused further of not disclosing the gratification between 1 to 30 April 2019.

[4] NEHAWU approaches this court on behalf of Ms Phathela for a final order interdicting the hearing. The premise of the application is that Ms Phathela made a protected disclosure after which she was charged with misconduct. NEHAWU contends therefore that the hearing constitutes an occupational detriment and on that basis seeks final relief that it is interdicted from proceeding. The disclosure, as appears from the facts relates to inflated expenditure for travel services. It was made to the Deputy Director General: Performance Monitoring and Evaluation in July 2018. The affidavit goes into detail on the nature and extent of the expenditure and how it is said to be irregular.

Analysis

[5] Before unpacking the merits however, this Court mero motu must deal with whether it has the jurisdiction to grant the appropriate remedy as contemplated in section 4(2)(b) of the PDA.

[6] Section 4 of the PDA sets out the remedies available to an employee in the event that an employee is subjected or may be subjected to an occupational detriment. This section reads as follows:

“4 Remedies

(1) Any employee who has been subjected, is subject or may be subjected, to an occupational

detriment in breach of section 3, may –

(a) approach any court having jurisdiction, including the Labour Court established by section 151 of the Labour Relations Act, 1995 (Act 66 of 1995), for appropriate relief; or

(b) pursue any other process allowed or prescribed by any law.

(2) For the purposes of the Labour Relations Act, 1995, including the consideration of any matter emanating from this Act by the Labour Court:-

(a) any dismissal in breach of section 3 is deemed to be an automatically unfair dismissal as

contemplated in section 187 of that Act, and the dispute about such a dismissal must follow the procedure set out in Chapter VIII of that Act; and

(b) any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part: Provided that if the matter fails to be resolved through conciliation, it may be referred to the Labour Court for adjudication.

(3) Any employee who has made a protected disclosure and who reasonably believes that he or she may be adversely affected on account of having made that disclosure, must, at his or her request and if reasonably possible or practicable, be transferred from the post or position occupied by him or her at the time of the disclosure to another post or position in the same division or another division of his or her employer or, where the person making the disclosure is employed by an organ of state, to another organ of state.

(4) The terms and conditions of employment of a person transferred in terms of subsection (2) may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer.”

[7] It appears from a reading of this section that where an employee is subjected to an occupational detriment whilst still in employment,

and where that detriment is alleged to be a measure short of dismissal, such as a hearing, section 4(2)(b), provides that “the employer’s conduct is deemed to be an unfair labour practice” as contemplated in part B of Schedule 7 to the LRA.

[8] In terms of section 4(1) of the PDA an employee who has been subjected or may be subjected to an occupational detriment may approach any court (including the Labour Court) for appropriate relief or pursue any other process allowed or prescribed by any law.

[9] Where an employee has been subjected to an occupational detriment (in breach of section 3 of the PDA) other than dismissal, such an occupational detriment is, as already pointed out, deemed to be an unfair labour practice as contemplated by the LRA. A dispute about an occupational detriment (short of dismissal) may be referred to the Labour Court provided that the matter has been referred to conciliation and the matter remains unresolved. This is prescribed by section 4(2)(b) of the PDA.

[10] This much is also supported by section 191(13) of the LRA, where it is specifically stated that the Labour Court has jurisdiction to adjudicate a dispute about an occupational detriment, which is deemed to be an unfair labour practice, referred to it provided that the dispute was first referred to conciliation in terms of the LRA and provided further that the CCMA has issued a certificate of non-resolution of the dispute.

[11] In Feni v Pan South African Language Board[3] this Court held that:

“[18] Section 191(13) of the LRA also envisages the situation where an employee approaches the Labour Court on an urgent basis on the ground that he has been subjected to or is about to be subjected to an occupational detriment (which is deemed to be an unfair labour practice). An employee who, for example, is about to be subjected to a disciplinary hearing (provided that it amounts an occupational detriment in terms of the PDA) may therefore approach the Labour Court on an urgent basis for an order to prevent or stay a disciplinary hearing. The Labour Court will, however, only issue an interim order pending the final resolution of the dispute to be referred to conciliation. As already pointed out, the Labour Court will only grant an interim order because it can only adjudicate the dispute once a certificate of non-resolution has been issued by the CCMA. (See Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC).”

[12] The court continued at paragraph 20 that:

“[20] The PDA is in my view clear. If the employee has been dismissed and the dismissal is alleged to have amounted to an occupational detriment in terms of s 3 of the PDA, the employee must, in terms of s 191(1) of the LRA, first refer a dispute to the CCMA for conciliation. A dismissal in contravention of the PDA on account of an employee having made a protected disclosure as defined in the PDA constitutes an automatically unfair dismissal in terms of s 187(1)(h) of the LRA. Once a certificate of non-resolution has been issued, the employee may refer the dispute about his or her automatically unfair dismissal to the Labour Court for adjudication in terms of s 191(5)(b)(i) of the LRA.”

[13] In the light of the above, this Court has no jurisdiction to grant the final order sought. The matter, if alleged to constitute an occupational detriment that arose as a result of a protected disclosure, will be deemed an unfair labour practice under section

4(2)(b) of the PDA. When read with section 191(13) of the LRA the matter must be referred to conciliation and a certificate of

non-resolution must be issued before this Court can decide whether to grant the final relief sought. This is a jurisdictional prerequisite

for this Court to determine an application for final relief that a disciplinary hearing constitutes a protected disclosure.

Costs

[14] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. This Court is conventionally reluctant to make orders for costs against genuinely aggrieved

employees who seek recourse against their employers. The present case is indeed one that falls into this category.

[15] Moreover, there is an existing employment relationship between the parties and the matter has yet to be conciliated in terms of section 191 of the LRA and 4(2)(b) of the PDA. The present case constitutes an exception. For these reasons, it is not appropriate to issue a costs order.

[16] In the circumstances the following order is made:

Order

1. The application is dismissed for lack of jurisdiction.

2. There is no order as to costs.

_________________________

R. Tulk

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: NEHAWU (Union)

For the Respondent: Office of the State Attorneys

[1] No. 26 of 2000.

[2] No. 66 of 1995, as amended.

[3] (2011) 32 ILJ 2136 (LC)