South African Medical Association Trade Union obo Dr H Rikhotso v MEC: Department Of Health Limpopo Province and Others (J 1773/2022) [2023] ZALCJHB 65; [2023] 6 BLLR 575 (LC); (2023) 44 ILJ 1779 (LC) (14 March 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1773/2022

In the matter between:

SOUTH AFRICAN MEDICAL ASSOCIATION TRADE UNION obo DR H RIKHOTSO Applicant and MEMBER OF EXECUTIVE COUNCIL: DEPARTMENT OF HEALTH LIMPOPO PROVINCE First Respondent HEAD OF DEPARTMENT: DEPARTMENTOF HEALTH LIMPOPO PROVINCE Second Respondent THE CHIEF EXECUTIVE OFFICER, MANKWENG TERTIARY & ACADEMIC HOSPITAL Third Respondent

Heard: 09 March 2023

Delivered: 14 March 2023

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 14 March 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks an order declaring a decision by the third respondent to unilaterally extend his notice period to be unlawful, declaring unlawful the maintenance of certain of the applicant’s records, and directing the respondents to take all necessary steps to remove and release the applicant’s name from the Persal system of the department, and directing the respondents to update the applicant’s personal file to reflect the status of a resignation.

[2] It is not clear from the notice of motion whether the applicant seeks an interim or final relief. The issues have been fully ventilated before the court, and I intend therefore to deal with the matter as one in which final relief is sought.

[3] The material facts are not in dispute. The applicant is a medical doctor. During June 2022, disciplinary proceedings were instituted against the applicant on a charge of inciting other employees to participate in an unprotected strike. The disciplinary enquiry commenced on 28 June 2022, and concluded on 30 August 2022. In the interim, while awaiting the outcome of the enquiry, the applicant had applied for and was offered a post at the Chris Hani Baragwanath Hospital. In anticipation of the offer of employment and his acceptance of it, on 1 November 2022, the applicant submitted his letter of resignation, giving the required 30 days' notice to terminate his employment contract with effect from 30 November 2022. On 11 November 2022, the applicant’s hopes were realised, and he received and accepted an offer of employment from Baragwanath Hospital, to assume duty on 1 December 2022. On 18 November 2022, the applicant was advised that he had been found guilty of the misconduct with which he had been charged, and that the sanction of dismissal had been imposed. On 25 November 2022, the applicant lodged an appeal against his dismissal.

[4] On 28 November 2022, in response to the applicant’s notice of appeal against the disciplinary sanction, the third respondent

advised that consequent on receipt of the notice, ‘the hospital shall reverse the implementation of dismissal on the Persal system’, and that the reversal ‘shall remain in effect during the entire process of appeal as per clause 7.4 c of the PSCBC resolution 1 of 2003’. The letter went on to state:

5. Furthermore, please take note that the hospital is in receipt of your resignation letter and your notice period of up to the 30th November 2022. The resignation letter was submitted during the process of the disciplinary hearing against yourself which started on 28th June 2022 till the 17th November 2022.

6. Given your appeal, the hospital shall extend your period of serving notice until the outcome of your appeal from the Executive Authority.

7. You are therefore expected to continue providing services to Mankweng Hospital until both the hospital and yourself receives the outcome of the appeal.

[5] In response to the letter, the applicant filed the present application. As an aside, the court was advised that the applicant’s appeal was subsequently dismissed, and his dismissal upheld.

[6] At the commencement of the hearing, I asked counsel for the applicant to make clear the basis on which the court’s jurisdiction had been invoked. The response was the dispute concerned a ‘labour matter’. This court has stated ad nauseam that its jurisdiction does not extend to all labour matters, and that an applicant must necessarily identify the statutory provision that confers jurisdiction on the court in the matter concerned. In Baloyi v Public Protector and Others[1] the Constitutional Court said the following (footnotes omitted):

[23] The legislation in terms of which an assignment would be made in the context of the present matter is the LRA. Section 157(1) of the LRA provides for the exclusive jurisdiction of the Labour Court in all matters that – in terms of the LRA or other law – are to be determined by the Labour Court. In doing so, it fulfils one of the stated purposes of the LRA, which is to establish the Labour Court and the Labour Appeal Court as superior courts, with ‘exclusive jurisdiction to decide matters arising from the Act’ (emphasis added) Section 157 (1) reads:

“Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

Sections 68(1), 77(2)(a),145 and 191 of the LRA proffer examples of matters that “are to be determined by” the Labour Court and are therefore, by virtue of section 157(1), within the exclusive jurisdiction of the Labour Court. This Court has found, moreover, that the High Court’s jurisdiction in respect of employment-related disputes is ousted only where the dispute is one for which the LRA creates specific remedies, including, for example, unfair dismissal disputes.

[24] Crucially, section 157(1) does not afford the Labour Court general jurisdiction in employment matters … (own emphasis).

[7] After the matter was stood down to enable counsel to prepare submissions on jurisdiction, Mr Mahlangu, who appeared for the applicant, appealed to the Basic Conditions of Employment Act (BCEA) and in particular, section 37(1), which provides that a contract of employment is terminable by an employee who has been employed for more than a year, on not less than four weeks’ notice. Further, the applicant appeals to the Public Service Regulations which in Regulation 69 (1) contain a similar provision. I will accept, with some reluctance in the face of poorly drafted papers and adopting a generous view of the pleadings, that this court has jurisdiction to entertain the application claim by virtue of section 77(3) of the BCEA, in that it is a dispute that concerns a contract of employment.

[8] The first issue to be determined is whether it was open to the third respondent to extend the notice period triggered by the applicant’s resignation on a unilateral basis. The case advanced by the third respondent is curious – the contention appears to be that ‘the Applicant’s resignation after the announcement of a sanction of dismissal has no legal effect, as the employer is entitled to continue with disciplinary action, during the employee’s notice period’. A resignation is a unilateral act by the employee that has the effect of terminating the contract of employment. At common law, there is thus no need for a resignation to be ‘accepted’, nor is an employer obliged to accept any retraction of a resignation, once it is given.[2] It is thus not open to an employer unilaterally to extend a notice period triggered by an employee’s resignation; the notice period is determined by the contract (or applicable regulatory measure or collective agreement), and the contract of employment terminates at the end of the notice period. There is thus no legal basis for the action taken by the third respondent in terms of its letter dated 28 November 2022.

[9] But that is not the end of the matter. The applicant further seeks an order directing the respondents to update his personal file to ‘reflect a status of resignation and hand over the file to Human Resources Directorate at Chris Hani Baragwanath Academic Hospital’. What the applicant effectively seeks to do is to expunge any record of his dismissal from his personal file, on the basis of him having filed an appeal after being notified of his dismissal but before the expiry of notice period triggered by his resignation.

[10] Clause 7.4.c of PSCBC Resolution 1 of 2003 provides that where a sanction is pronounced by the chair of a disciplinary hearing, ‘The employer shall not implement the sanction during an appeal by the employee’. Further, clause 8.7 provides that once the appeal authority has made a decision:

The employer shall immediately implement the decision of the appeal authority. Where the appeal authority decides to reduce the sanction or confirm the outcome of the disciplinary proceedings (e.g. dismissal cases), the sanctions will be implemented by the employer from a current date.

[11] While it may be correct, as counsel for the applicant submitted, that a dismissal in the public sector has an ‘effective date’ (being the date on which the appeal authority confirms the sanction of dismissal), it does not necessarily follow that the applicant’s dismissal was somehow expunged from his personal record on account of his filing an appeal. It should be recalled that the applicant’s contractual notice of his intention to terminate his employment was given prior to his dismissal, which occurred during the notice period. It is well-established that there is nothing to preclude an employer from terminating a contract of employment summarily during a notice period triggered by a resignation. (See Standard Bank of SA Ltd v Chiloane Dec 2020, Mthimkhulu v Standard Bank of South Africa [2021] 1 BLLR 86 (LC)). The applicant’s submissions confuse the existence of a dismissal with its implementation. The filing of an appeal against the sanction issued by the presiding officer did not more than delay the implementation of the sanction. Neither clauses 7.4.c nor 8.7 of the collective agreement support the construction that once a sanction is the subject of an appeal, it is expunged or somehow ceases to exist, pending the outcome of the appeal. The sanction remains on record; its implementation is suspended until the appeal authority makes a decision. If and only if the appeal authority upholds an appeal against a sanction of dismissal is the dismissal then expunged from the employee’s record. It is common cause in this instance that the appeal authority dismissed the appeal and upheld the applicant’s dismissal.

[12] In short: the applicant was dismissed during a period of notice triggered by his resignation. The dismissal terminated the contract of employment on 18 November 2023, despite the third respondent’s confused view of the law and its erroneous assumption that it was entitled unilaterally to extend the applicant’s notice period. The applicant was thus dismissed on 18 November 2022, and there is no basis for an order that would have the effect of recording in his personal file that his contract with the third respondent terminated on account of his resignation. Frankly, the present application is no more than an attempt to conceal the fact of the applicant’s dismissal by the third respondent.

[13] Although, for the reasons recorded above, the applicant was correct to dispute the unilateral extension of his dismissal, little purpose would be served granting the declarator that the applicant seeks, given the conclusion to which I have come on the applicant’s attempt to have his file record that he resigned from the third respondent’s employ. As I have indicated, the third respondent acted unlawfully by its purported extension of the notice period, but that issue is entirely academic. Further, to the extent that the applicant seeks a hand over of his personal file to the Chris Hani Baragwanath Hospital, the applicant has not laid any legal basis for this relief. In any event, the transfer of personal files between state hospitals is an internal matter that does not require intervention by this court. The application thus stands to be dismissed.

[14] When an applicant invokes this court’s jurisdiction under section 77(3) of the BCEA, the rule in relation to costs is that costs follow the result, save exceptional circumstances. In this instance, there are no exceptional circumstances.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv P.N Mahlango Instructed by: Theko Attorneys Inc. For the respondent: Adv K.F Magano Instructed by: State Attorney

[1] 2021 (2) BCLR 101 (CC), footnotes omitted.

[2] See Van Niekerk et al Law@work (5th ed., Lexis Nexis, Durban) at 248-9; Wallis Labour and Employment Law (1995 Lexis Nexis) at para 33; Vodacom v Motsa and Another 2016 (3) SA 116 (LC)