Raleie v Commission for Conciliation, Mediation and Arbitration and Others (JR1707/18) [2021] ZALCJHB 409 (27 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1707/18

In the matter between:

KIM RALEIE Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER ANNELIE BEVAN Second Respondent

STATE INFORMATION TECHNOLOGY

AGENCY SOC LTD Third

Respondent

Heard: 09 July 2021

Delivered: 27 October 2021 (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 27 October 2021.)

JUDGMENT

MANCHU, AJ

Introduction

[1] The applicant claims that he was dismissed whilst he was on sick leave and that this constituted a contravention of section 37 (5)(a) of the Basic Conditions of Employment Act[1] (BCEA). To this end the applicant has brought an application in which he seeks two groups of alternative prayers:

1.1. In the first group of prayers, he seeks an order declaring his dismissal to be invalid and/or void ab initio and/or in contravention of section 37(5)(a) of the BCEA;

1.2. As an alternative, the second group of prayers seek the reviewing and setting aside of a ruling made by the second respondent on 16 July 2018. The applicant’s main point in this regard is that the second respondent should have determined that she had no jurisdiction to deal with a claim under the BCEA.

[2] In addition to opposing the relief sought by the applicant, the third respondent brought an application in terms of rule 11 of the Rules for the Conduct of Proceedings in the Labour Court (the Rules), to have the applicant’s application dismissed. However, at the hearing of the matter, I was advised that the third respondent had elected to abandon the rule 11 application.

[3] The facts against which the abovementioned applications are brought are dealt with below.

Summary of facts

[4] The applicant was employed by the third respondent as a Senior Manager, ICT Service Delivery.

[5] On 17 August 2017, the third respondent served the applicant with a notice to attend a disciplinary hearing, scheduled to take place on 23 and 24 August 2017. The applicant maintains that the charges against him were brought in response to a grievance against a manager at the third respondent.

[6] The applicant alleges that he sent the third respondent a medical certificate on 22 August 2017, in which he was booked off from 23 to 25 August 2017, and that the third respondent continued with the disciplinary hearing despite receipt of the medical certificate.

[7] The third respondent says that the applicant’s medical certificate never made it to the chairperson of the hearing. The applicant failed to send the medical certificate to her manager, and instead incorrectly sent the medical certificate to the head office in Pretoria, instead of sending it to the hearing held in North West.

[8] The disciplinary hearing continued in the applicant’s absence and he was notified that he had been found guilty and dismissed.

[9] Following his dismissal, the applicant referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) where it came before the second respondent. The second respondent found that the applicant’s dismissal was procedurally unfair, but substantively fair, and awarded him compensation in the amount of R 249 167.10 (two hundred and forty-nine thousand hundred and sixty-seven rand and ten cents), minus such deductions as the respondent is in terms of the law entitled to make.

[10] There does not appear to be a dispute that the applicant had obtained a medical certificate booking her off during the scheduled dates of her disciplinary hearing.

The BCEA claim

[11] The applicant seeks an order declaring that the termination of his employment is invalid and/or void ab initio and/or in contravention of section 37(5)(a), because he was served with a notice of dismissal whilst he was on medical leave.

[12] Section 37(5) reads as follows:

“(5) Notice of termination of a contract of employment given by an employer must–

(a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and

(b) not run concurrently with any period of leave to which the employee is entitled in term of Chapter Three, except sick leave.”

[13] In this matter, the ‘Chapter Three’ ‘period of leave’ that the applicant relies on is medical leave.

[14] In opposing the applicant’s application, the respondent argues section 37(5)(a) does not regulate the manner of service of a notice of dismissal that follows from a disciplinary hearing, and that the termination referred to in section 37(5)(a) is not one that follows from a disciplinary hearing.

[15] Section 158 (1)(a)(iv), empowers this Court to make a declaratory order. In deciding whether a declaratory order should be made, the Court applies a two-stage test: firstly, it must be satisfied that the

applicant is a person interested in an existing, future or contingent right or obligation. Secondly, if so satisfied, the court must decide whether the case is a proper one for the exercise of the discretion conferred on it.[2] The Court does not move to the second stage if the first has not been met.

[16] The existing future or contingent right that the applicant relies on is section 37(5)(a) of the BCEA. In this respect, the applicant argues he had a right not to be notified of the termination of his employment, whilst he was on medical leave. The applicant’s reliance on section 37(5)(a) is in the circumstances misplaced.

[17] Section 37(5)(a) prohibits service of a notice of termination during a period of leave, it does not prohibit the holding of a disciplinary hearing. Although holding a disciplinary hearing whilst being aware that an employee is on medical leave may be procedurally unfair under the Labour Relations Act[3] (LRA), it does not offend section 37(5)(a).

[18] Given that the holding of a disciplinary enquiry is not prohibited, the outcome of such disciplinary hearing cannot offend or constitute a violation of section 37(5)(a). Therefore, the applicant’s disciplinary hearing outcome, dismissing him from employment and effectively terminating his employment, should also not constitute a violation of section 37(5)(a).

[19] The fact that section 37(5)(a) does not prevent the termination of employment contracts, after a sanction of dismissal under the LRA, is affirmed by section 37(6)(b).

[20] Section 37(6)(b) reads:

“(6) Nothing in this section affects the right—

(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; 50 and

(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.

(Own Emphasis)

[21] The notice referred to in section 37(6)(b), is a notice contemplated in section 37. Furthermore, ‘any cause recognized by law’ would include a dismissal under the LRA. Therefore, the termination of the applicant’s contract was for a cause recognized by law, and is not prohibited or affected by section 37(5)(a).

[22] The applicant therefore does not have an existing right in terms of section 37(5)(a). His application for a declarator fails for this reason.

The alternative review application

[23] The applicant chose to only file a founding affidavit, and did not file a supplementary affidavit as permitted by rule 7A.

[24] The founding affidavit contains a heading “Grounds for declarator order and/or alternatively review.” Under this heading, the applicant sets out in general terms various allegations why the second respondent’s findings were unreasonable or irregular, without reference to the record, transcript or arbitration award and concludes at the last sub paragraph that “it is for all the above reasons that I submit to the Honorable Court that the Commissioner herein committed gross irregularity, and/or arrived at a decision that no reasonable commissioner could come to.” In many ways, the allegations or complaints made in the applicant’s review are in the way of an appeal.

[25] The applicant’s heads of argument contain arguments and references that go further than what was set out in the founding affidavit and seeks to make out a case outside the founding affidavit. This is impermissible.

[26] This Court is required to consider the merits of a review application set out in the founding and/or supplementary affidavits.

[27] In NUMSA obo Rabothatha v MEIBC (Norco Cables)[4] the Court reinforced founding affidavits must out set the factual and legal grounds, in this respect the Court:

“An applicant cannot simply place a founding affidavit with general or generic grounds of review which are not supported by facts together with the award and the entire record of proceedings before this Court and then request the court to scrutinize the record of proceedings, the award and reasons given for it to determine whether the award is one a reasonable decision maker could have arrived at on the evidence before him/her. The applicant is obliged to set out in its founding and supplementary affidavits the facts, with reference to the record of proceedings, in support of the allegations that the award is not reasonable or the commissioner committed misconduct or gross irregularities in the conduct of the proceedings. It is not sufficient for an applicant to simply allege in general terms that the award is unreasonable with no reference whatsoever, to the facts and record of proceedings on which these allegations are based.”[5]

(Own emphasis)

[28] Similarly, in Naidoo v National Bargaining Council for the Chemical Industry and others[6], the Court said that it is incumbent upon the applicant in his founding or supplementary affidavits to establish with reference to the arbitrator’s award and the record (and the material placed before the arbitrator), the grounds upon which the applicant relies in seeking to have the award reviewed and set aside.

[29] The applicant’s review application should be dismissed because it fails to put together a proper application for review.

[30] However, even the grounds of review that can be pieced together from the applicant’s founding affidavit also fails to establish that his dismissal was substantively unfair. In this respect, the applicant’s grounds of review can be loosely put together as follows:

30.1. First, is an allegation that the second respondent committed an irregularity by failing to take judicial cognizance of the fact that he had been served with a notice of termination whilst on sick leave, and since this constituted an alleged violation of the BCEA, the second respondent lacked the necessary authority and jurisdiction to adjudicate upon the matter.

30.2. Second, is a claim that despite the second respondent finding that Mr Seleke was not his supervisor, she still found that he had been grossly rude and/or abusive towards him.

30.3. Third is the applicant’s allegation that the compensation awarded is shockingly less than expected.

The jurisdictional point

[31] As the applicant correctly argued, at the time of his dismissal the applicant had an election whether to refer his dismissal to the CCMA, and claim that he had been unfairly dismissed, or pursue a claim under the BCEA. The applicant elected to refer a dispute to the CCMA.

[32] Before the CCMA, the applicant identified the issues in dispute as being the procedural and substantive fairness of his dismissal. The applicant never raised the question of jurisdiction. He did not do so during conciliation, nor did he at arbitration.

[33] Although the applicant did mention that his employment was terminated whilst he was on medical leave, he did not mention this on the basis that the CCMA did not have jurisdiction. On the contrary, it seems that he raised the issue as being one of the issues that the Commissioner needed to address, in determining procedural fairness.

[34] The Commissioner was never asked to make a ruling on jurisdiction, I can’t fault her failing to do so. In my view, the Commissioner

correctly adjudicated the dispute as being an unfair dismissal dispute because, in the all circumstances before her, that was the

true dispute between the parties.

[35] However, it needs to be mentioned that even if I’m wrong and the true dispute before the Commissioner was a claim under the BCEA, to which the CCMA had no jurisdiction, it still does not assist the applicant.

[36] A finding that the CCMA lacked jurisdiction, would not resuscitate the dispute before the CCMA. The matter could not revert back to the CCMA, because it does not have jurisdiction. The applicant’s relief sought under the BCEA could only be pursued in this Court. However, I have already determined that the applicant’s claim under the BCEA has no merits, therefore the applicant has no claim to pursue in this Court.

The attack on the substantive fairness

[37] As identified above, the applicant complains that despite the second respondent’s finding that Mr Seleke was not his supervisor, she still found that he had been grossly rude and/or abusive towards him. Apart from the fact that this complaint was not properly set out as a ground of review, it is not sustained by the facts.

[38] There can be little to no dispute that the applicant had been rude and/or abusive towards Mr Seleke. The applicant’s misconduct is borne out by the contents of the applicant’s email.

[39] Furthermore, this charge does not depend on a finding that Mr Seleke was his supervisor, it is the grossly rude and/or abusive conduct that is the misconduct.

[40] The second respondent found “The fact that B Seleke was not the immediate supervisor at the time when the Applicant addressed the email to him does not take away the seriousness of the offense…”

[41] The second respondent’s finding is this regard, is one that a reasonable decision maker would make, and the applicant’s

review in this regard is dismissed.

The attack against the awarded compensation

[42] The second respondent found that the applicant’s dismissal was procedurally unfair and awarded him three month’s compensation,

amounting to R 249 167.10. Without setting out any proper factual or legal basis, the applicant says that this amount is shockingly less than expected.

[43] From the founding papers, the applicant has failed to make out any case for the Court to interfere with the compensation awarded and I will not do so. This ground of review also falls to be dismissed.

[44] In the premises the following order is made:

Order

1. The application in terms of section 37 (5)(a) of the BCEA is hereby dismissed.

2. The review application is hereby dismissed.

3. There is no order as to costs.

T. Manchu

Acting Judge of the Labour Court of South Africa

Appearances:

For applicant: In

Person

For third respondent: M Rapakgadi of Mampeule Attorneys Inc.

[1] No. 75 of 1997, as amended.

[2] See: National Bargaining Council for the Clothing Manufacturing Industry (KZN Chamber) v Glamour Fashions Worker Primary Co-operative Ltd and others [2018] 9 BLLR 876 (LAC) at para 14.

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

[4] [2015] ZALCJHB 106 (25 March 2015)

[5] Ibid at para 34.

[6] [2012] 9 BLLR 915 (LC) at paragraph 13