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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 1395 / 2023

 

In the matter between:

 

CASTRO SERAME BONGANE MLABA	Applicant
And
THE HONOURABLE DR AARON MOTSOALEDI MINISTER: DEPARTMENT OF HOME AFFAIRS	First Respondent
THE DIRECTOR GENERAL: L T MAKHODE DEPARTMENT OF HOME AFFAIRS	Second Respondent

Heard: 10 October 2023

Delivered: 12 October 2023

These reasons were handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down is deemed to be 12 October 2023

Summary: Urgency – applicant satisfying considerations of urgency – matter heard as urgent application

Jurisdiction – section 157(1) and (2) of LRA considered – Labour Court does have jurisdiction to entertain part of claim as pleaded by applicant – Labour Court has no jurisdiction to entertain claim relating to diplomatic accreditation – Labour Court also has no jurisdiction to finally determine unfair labour practice claim not referred for conciliation in terms of section 191(1) of the LRA

Subsidiarity – principles considered – applicant cannot rely directly on Constitution where right to fair labour practice regulated by LRA – applicant must found his right on the LRA

Unfair labour practice – applicant claiming unfair labour practice – applicant seeking remedy by virtue of LRA – applicant thus compelled to follow dispute resolution processes under LRA – applicant has made no attempt to comply with LRA dispute resolution process – applicant not establishing right to relief sought

Alternative remedy – applicant has proper alternative remedy available in the form of unfair dismissal / unfair labour practice proceedings in the normal course

Exceptional circumstances – applicant failing to establish a clear right to final relief sought – exceptional personal circumstances of the applicant thus not a relevant consideration

 

REASONS

 

SNYMAN, AJ

Introduction

[1]  This is yet another urgent application brought by a senior employee in the service of a State department, seeking to urgently intervene in decisions made by such department as an employer, and where there are specific dispute resolution processes prescribed by the Labour Relations Act (LRA),[1] that must rather be followed. These employees, who are highly remunerated and can thus afford it, often rush off to this Court on the back of clever lawyering to try and secure an advantage over all the other thousands of litigants that patiently wait in the queue to have their cases of termination of employment or unfair labour practice disputes decided.

[2]  In the notice of motion, the applicant asks for final relief in a variety of forms. First, the applicant seeks to interdict his recall by the respondents to the Republic of South Africa, without the respondents following due process. Second, he seeks to interdict the respondents from withdrawing his diplomatic accreditation until his contract expires in December 2023. And finally, he seeks an order that if the respondents intend to pursue disciplinary action against him, this must be done whilst he is still stationed in Zimbabwe. Because the applicant is seeking final relief with regard to these three prayers in the notice of motion, he must satisfy three essential requirements which must all be shown to exist, being: (a) a clear right; (b) an injury actually committed or reasonably apprehended (prejudice); and (c) the absence of any other satisfactory remedy.[2]

[3]  This matter came before me for argument 10 October 2023 and was opposed by the first and second respondents. According to the respondents, the matter was not urgent, there was no basis to intervene in at this stage, the applicant had failed to establish the existence of a right that would substantiate the relief he sought, and the applicant should pursue any dispute he may have concerning an alleged unfair labour practice in terms of the LRA utilizing the dispute resolution mechanisms of the LRA. After hearing argument by both parties, and on 10 October 2023, I granted the following order:

‘(1)  The application is heard as one of urgency.

(2) The application is dismissed.

(3) There is no order as to costs.

(4)   Written reasons for this order will be handed down on 12 October 2023.’

[4]  This judgment now constitutes the written reasons referred to in paragraph 4 of my order, supra. I will commence by first setting out the relevant background facts.

The relevant background

[5]  Fortunately, in this case, most of the pertinent facts were either undisputed or common cause, and the case can readily be decided on these facts. There exists a factual dispute as to whether the applicant indeed committed misconduct which ultimately resulted in his recall, but not a lot turns on this issue. In any event, and insofar as the versions conflict, the version of the respondents must be accepted.[3] For ease of reference, I will refer to the first and second respondents jointly in this judgment, as ‘the Department’.

[6]  The applicant is currently employed by the Department as First Secretary: Immigration and Civic Services, Harare Mission, and is stationed in Harare, Zimbabwe. The applicant currently resides in Harare with his spouse and son.

[7]  The applicant came to be placed in Zimbabwe by virtue of the fact that the Department, as part of its ordinary functions, does place employees to various foreign missions abroad, to fulfil the tasks of the Department at those missions.

[8]  The placement of employees by the Department in foreign missions is done, and regulated, in terms of the Policy on Placement of Employees in Missions Abroad, which was adopted on 1 October 2014 (the Policy). In terms of the Policy, any employee of the Department that would be interested in placement abroad has to apply for such placement. Whether or not the employee concerned is suitable for such placement, as well as the location of a placement, is determined by a selection and placement committee. The Policy prescribes, in clause 7 thereof, the requirements an employee must fulfil to be eligible for placement, and then also how the selection process will be applied. If placed, and in terms of clause 7.3.7, the employee must sign a separate placement contract.

[9]  In terms of clause 8.1 of The Policy, placement abroad shall be conducted on a horizontal basis, or in other words, the placement is not considered to be a promotion. The employee is trained for placement abroad upon being selected for placement. The employee would also be entitled to be accompanied by his or her spouse and children in such placement. In terms of clause 9.6, placements are for a fixed term of four years, with provision for exceptions if circumstances dictate. But of importance in this matter, clause 9.12 provides:

‘The Director General shall have powers to transfer an employee back to the Republic of South Africa based on the following reasons:

(a)  Misconduct.

(b)  Incapacity based on poor performance.

(c)  Ill heath.

(d)  Political unrest in host country.

(e)  at the request of the country and,

(f) Any other circumstances that may require such transfer.’

[10] The applicant made application in March 2019 to be placed on a foreign mission in Zimbabwe. His placement was approved by the Department in terms of the Policy, and he signed a fixed term placement contract, placing him in Harare, Zimbabwe, as required in terms of clause 7.3.7 of the Policy.

[11] The applicant’s term of placement in Zimbabwe was due to expire in March 2023. However, the applicant requested the Department to extend the period of placement, on the basis of what the applicant called humanitarian grounds, so as to allow his son to complete the school year in Zimbabwe. Despite being under no obligation to do so, and solely to accommodate the applicant, his period of placement was extended by agreement to 31 December 2023.

[12] As part of the ordinary duties of the applicant, he was responsible for travel arrangements and diplomatic processing of South African dignitaries visiting the host country (in this case Zimbabwe). President Cyril Ramaphosa and his delegation visited Harare in September 2023 to attend the inauguration of President Mnangagwa of Zimbabwe. As prescribed by protocol, it was the duty of the applicant to attend at Harare airport at least two hours prior to the departure of the President and his delegation, on 4 September 2023, so as to ensure that the travel documents of the entire delegation are processed without delay, and the departure of the entire delegation is assured without any delays or administrative difficulties. According to the Department, the applicant failed to discharge this clear duty on him. As a result, the President and his delegation was delayed for over an hour at Harare airport. This delay also had the knock-on effect of the departure of the President of the Democratic Republic of Congo being delayed. As far the Department was concerned, this failure of the applicant constituted serious misconduct and brought the Republic of South Africa into disrepute.

[13] As a result, and on 6 September 2023, the Department (through its attorneys it had instructed to deal with the matter) wrote to the applicant, referring him to the incident as summarized above. The applicant was informed that the Department considered this to be ‘serious misconduct’, and that he would be transferred back to South Africa in terms of clause 9.12 of the Policy. He was informed he would be facing disciplinary action when he returned. Finally, he was informed that he would receive a letter from the Department shortly, relating to his recall and transfer back to South Africa. A further letter from the Department’s attorneys followed on 11 September 2023, reiterating what had been said in their earlier correspondence, and indicating that it was expected that he would return to South Africa on 15 September 2023.

[14] On 14 September 2023, the Department gave the applicant formal notice that he was recalled and that he was instructed to return to South Africa by 13 October 2023. He was however afforded an opportunity to provide a written answer to this instruction within five days.

[15] The applicant indeed provided a written answer on 22 September 2023 (only sent to the Department on 25 September 2023). He indicated that his answer constituted written representations as to why he should not be transferred back to South Africa. The applicant provided an extensive blow by blow exposition of the events, as he saw it, on 4 September 2023. He explained that there had been changes in the travel arrangements relating to departure time of the President and his delegation, that only came in later. He stated that he was not aware of these changes, because his telephone was not connected to a Wi-fi network and due to some ‘signal jam’. According to the applicant, he only became aware of the change in departure time, when the President and his delegation was already on their way to the airport. He then tried to rush to the airport, but traffic was congested, and he arrived late. He stated that he attempted to explain the situation and tender his apologies to the President, but he was not allowed to do so. He confirmed that he felt ‘embarrassed, scared and unprofessional’ as a result of what happened. He indicated that ‘… I wish would plead for lenience …’ (sic), because, according to him, the decision to transfer him back to South Africa due to the alleged misconduct appears quite severe, especially considering his actions were neither intentional nor premediated. The applicant then also made a number of submissions as to his personal circumstances, as motivation why he should not be recalled and transferred back to South Africa. He concluded by tendering his apology for what happened.

[16] The Department answered on 26 September 2023. It was indicated that his representations were considered. It was also stated that due to the severity of the misconduct, the reasons provided by the applicant was not sufficient to prevent his recall. It was pointed out that his actions had far-reaching implications for the reputation and credibility of the Department and the Department of International relations and Cooperation, and the Department had to safeguard its interests. The applicant was pertinently informed as follows:

‘… Be advised that I am formally recalling you back to the Republic of South Africa on account of your alleged misconduct in accordance with clause 9.12 of the Policy on Placement of Employees in Missions Abroad. You will return to the country on 13 October 2023. …’

[17] In the response on 26 September 2023, the Department also indicated that the applicant’s personal circumstances were considered, and that the applicant had previously been accommodated in this regard. It was stated that the previous accommodation could no longer apply due to the alleged misconduct. According to the Department, the allegations of misconduct had caused concerns about his placement abroad, and he was required to make alternative arrangements where it came to the education of his son.

[18] Having received this response of 26 September 2023, the applicant immediately dropped his conciliatory approach, and went on the offensive. He indicated that the misconduct allegation him must first be proven in a hearing. He equated the recall to a termination of contract, and contended that such termination was not based on any legislative provision. He complained that the recall was too harsh a sanction, because he would be forfeiting the benefits he would have earned. He reiterated all his personal circumstances in some detail. He insisted that the recall had to be done in line with labour law processes of South Africa. Ironically, having regard to what I will refer to later in this judgment, he states that failure to follow these labour law processes: ‘… will attract the law dispute resolution processes and its remedies …’. As far as the applicant was concerned, this recall was an unfair labour practice as envisaged by section 185(b) of the LRA. The applicant even said that his previous apology should not be considered as an admission of guilt. He demanded that his recall be withdrawn by 4 October 2023.

[19] On 2 October 2023, the applicant was informed by the Department’s attorneys that the recall stood. The urgent application then followed on 5 October 2023.

Urgency

[20] Urgent applications are governed by Rule 8. In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others[4] said:

‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self created when seeking a deviation from the rules.’

[21] The ordinary requirements relating to urgent applications in general was summarized in Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another[5]. These requirements are: (a) the applicant has to set out explicitly the circumstances which renders the matter urgent with full and proper particularity; (b) the applicant must set out the reasons why the applicant cannot be afforded substantial redress at a hearing in due course; (c) where an applicant seeks final relief, the court must be even more circumspect when deciding whether or not urgency has been established; (d) urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity; (e) the possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing must be considered; and (f) the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.

[22] I am satisfied that, after due application of the above principles to the facts of this matter, the applicant has made out a proper case of urgency. The applicant was formally informed on 26 September 2023 that he was recalled and had to return to South Africa on 13 October 2023. Instead of simply immediately launching into litigation, the applicant made one final attempt to bring the Department to other insights relating to his recall. When the Department, through its attorneys, made its final view clear on 2 October 2023, the applicant launched the application within three days, and on 5 October 2023. I am satisfied that this constitutes the kind of immediate action on the part of the applicant to satisfy the requirements of urgency. Even if 26 September 2023 is taken as the appropriate point from which to determine urgency, the period of some nine days taken to bring the application does not establish undue procrastination and the kind of delay that could serve to non-suit the applicant on the basis of a lack of urgency.

[23] In the answering affidavit, the Department did challenge the issue of urgency. However, and when the matter was argued before me, urgency was not really in issue. I also consider that the recall date of the applicant is 13 October 2023, making it necessary for this matter to be decided now, as substantive redress in this respect cannot be obtained in the ordinary course, because the horse would have bolted.

[24] Whilst it would be true that where it comes to the substance of the applicant’s claim, he would be able to obtain full redress in the ordinary course by virtue of unfair labour practice proceedings under the LRA, insofar as it may be competent to pursue, this is an aspect that must be separately considered in these kind of cases, and the matter must be heard as one of urgency to enable this to happen. In my view, the applicant has satisfied the requirements of urgency in order for the substance of the applicant’s case to be determined on an urgent basis.

Jurisdiction

[25] In Du Plessis v Public Protector and Others[6] the Court said:

‘… Jurisdiction cannot be assumed or implied. It either exists or it does not. Jurisdiction is the power of the Court to decide a matter that has been brought before it. If the Court does not have the power to do so, it cannot consider the matter, no matter what the merits or equities may be. …’

[26] In Gcaba v Minister for Safety and Security and Others[7], the Court described the concept of ‘jurisdiction’ as follows:

‘The specific term 'jurisdiction', which has resulted in some controversy, has been defined as the 'power or competence of a court to hear and determine an issue between parties …'

And in Makhanya v University of Zululand[8], the Court also dealt with the meaning of jurisdiction as follows:

‘…. Judicial power is the power both to uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of a claim is as much an exercise of judicial power as is the upholding of a claim. A court that has no power to consider a claim has no power to do either (other than to dismiss the claim for want of jurisdiction).’

[27] The jurisdiction of the Labour Court is found in section 157 of the LRA, which reads:

‘(1) 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.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from-

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.

[28] What is clear from the above is that the jurisdiction of the Labour Court is specifically circumscribed and determined by statute, being the LRA itself. In this regard, section 157(1), even though it provides that the Labour Court has exclusive jurisdiction under that section, does not constitute a general jurisdiction that the Labour Court can exercise, in all instances where a litigating party approaches the Labour Court and pleads the dispute is one related to an employment matter.[9] In order for the Labour Court to have jurisdiction, the issue for determination must be specifically provided for in the LRA, or in any other related employment law, such as for example the Employment Equity Act (EEA)[10] or Basic Conditions of Employment Act (BCEA)[11], and the applicant must indicate on what provision in any of these items of legislation the applicant relies.[12] As succinctly described in Booysen v Beaufort West Municipality and Another[13]:

‘… In regard to the issue of jurisdiction, the starting point is that this court is a creature of statute. In terms of s 157(1), subject to the Constitution and s 173, and except where the Labour Relations Act 66 of 1995 (LRA) provides otherwise, the court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by the court. The court thus has no general jurisdiction to deal with all disputes arising from employment …’

[29] In addition, there are further instances where the Labour Court would enjoy jurisdiction, but in these instances, it enjoys this jurisdiction concurrently with the High Court. This is found in section 157(2) of the LRA, which relate to issues concerning an alleged violation of any fundamental right entrenched in Chapter 2 of the Constitution, provided that alleged violation arises from employment / labour relations, or relates to the constitutionality of any executive or administrative act or conduct by the State in its capacity as an employer, or concerns the application of any law the Minister of Labour is responsible for. Then also in terms of section 77(3) of the BCEA, the Labour Court has concurrent jurisdiction with the High Court in any matter concerning a contract of employment.[14]

[30] Jurisdiction is determined on the basis of the case as pleaded by the applicant, which pleaded case in motion proceedings is determined by reference to the notice of motion and founding affidavit.[15] In casu, the applicant’s notice of motion unfortunately does not allude to what exactly what cause of action the applicant relies upon to establish his case. But in the founding affidavit, and under the heading of the nature of the application, the applicant pleads that: ‘I bring this application in terms of section 23 of the Constitution of the Republic of South Africa, 1996, which provides that I have the right to fair labour practices; section 185 of the LRA which provides that I have the right not to be subjected to unfair dismissal or unfair labour practices; and section 188 of the LRA providing that I have the right to both substantive and procedural fairness before a termination of my employment can take place.’

[31] The applicant also pleads that the decision to recall him back to South Africa was unlawful, because it amounted to a ‘sanction, retribution, and punishment’, and because it was arrived at without following due process. He further pleads that this state of affairs infringes on his constitutional right to fair labour practices, and his right to fairness under the LRA. The applicant also relies on a case that the decision was ‘unreasonable’ because his misconduct was not commensurate to the harm his spouse and son would suffer, that the charges against him were not yet formulated, and that a fair process was required. Finally, the applicant pleads that he has a right to procedural fairness which has been contravened.

[32] Based on the above case as pleaded, the relief sought by the applicant in his notice of motion to the effect that the Department be interdicted from withdrawing his diplomatic accreditation can be immediately disposed of, on the basis that this Court would have no jurisdiction to grant him such relief. This is simply not an employment issue as contemplated by section 157(1) of the LRA that is provided for in the LRA or any employment law. It is equally not an issue where this Court would have concurrent jurisdiction with the High Court, as none of the requirements of section 157(2) are satisfied. And finally, the applicant has not pleaded a case in contract which would clothe this Court with jurisdiction in terms of section 77(3) of the BCEA, insofar as this issue may be considered to be a contractual entitlement. This relief sought by the applicant must therefore be refused on the basis of a want of the jurisdiction of this Court to grant it.

[33] Insofar as the applicant seeks to rely upon unlawful action by the Department, this Court has no jurisdiction to decide whether or not the decision to recall him was unlawful.[16] My view in this regard stems from the following dictum in Steenkamp and Others v Edcon Ltd[17]:

‘I think that the rationale for the policy decision to exclude unlawful or invalid dismissals under the LRA was that through the LRA the legislature sought to create a dispensation that would be fair to both employers and employees, having regard to all the circumstances, including the power imbalance between them. In this regard a declaration of invalidity is based on a 'winner takes all' approach. The fairness which forms the foundation of the LRA has sufficient flexibility built into it to enable a court or arbitrator to do justice between employer and employee. …’

As succinctly said in Shezi v SA Police Service and Others[18], referring specifically to the dicta in Steenkamp supra:

‘The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. …’

[34] The applicant’s pleaded case of what he in reality terms to be an unlawful unfair labour practice thus resorts outside the realms of jurisdiction of this Court to consider and decide, and such a case must equally be refused on the basis of a want of jurisdiction.

[35] This basically leaves the applicant’s claim of an unfair labour practice under section 23 of the Constitution and section 185 of the LRA, as a basis for the relief he seeks of interdicting the Department from effecting his recall. In this regard, this Court would have jurisdiction to entertain these claims, but this does not mean these are good claims. The Court in Makhanya supra[19] aptly described the position as follows:

 

‘... The power of a court to answer a question (the question whether a claim is good or bad) cannot be dependent upon the answer to the question. To express it another way, its power to consider a claim cannot be dependent upon whether the claim is a good claim or a bad claim. …’

 

I will now proceed to consider the substance of the applicant’s case on the above grounds this Court would have jurisdiction to consider.

Analysis

[36] First things first. The applicant seeks to directly rely on the Constitution to substantiate his case of an unfair labour practice. This approach however flouts the principle of subsidiarity, since the concept of the prohibition of unfair labour practices is regulated by the LRA. In South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another[20] the Court held:

 

‘Broadly, the principle of subsidiarity is the judicial theory whereby the adjudication of substantive issues is determined with reference to more particular, rather than more general, constitutional norms. The principle is based on the understanding that, although the Constitution enjoys superiority over other legal sources, its existence does not threaten or displace ordinary legal principles and its superiority cannot oust legislative provisions enacted to give life and content to rights introduced by the Constitution. In simple terms, the principle can be summarised thus:

'Once legislation to fulfil a constitutional right exists, the Constitution's embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.' Ultimately, the effect of the principle is that it operates to ensure that disputes are determined using the specific, often more comprehensive, legislation enacted to give effect to a constitutional right, preventing them from being determined by invoking the Constitution and relying on the right directly, to the exclusion of that legislation.’

 

[37] In My Vote Counts NPC v Speaker of the National Assembly and Others[21] the Court described the principles behind the doctrine of subsidiarity in the following manner:

 

'First, allowing a litigant to rely directly on a fundamental right contained in the Constitution, rather than on legislation enacted in terms of the Constitution to give effect to that right, would defeat the purpose of the Constitution in requiring the right to be given effect by means of national legislation. Second, comity between the arms of government enjoins courts to respect the efforts of other arms of government in fulfilling constitutional rights. Third, allowing reliance directly on constitutional rights, in defiance of their statutory embodiment, would encourage the development of two parallel systems of law.'

 

[38] There can be no doubt that the LRA was intended to constitute the comprehensive legislation which was specifically designed to give effect to the protections afforded against unfair labour practices as enshrined in section 23(1) of the Constitution, or in other words, it is the LRA which gives effect to this fundamental right.[22] The doctrine of subsidiarity must therefore find application, and it would thus not be permitted for the applicant to seek to establish an unfair labour practice by way of a direct reliance on the Constitution. Such a situation was pertinently dealt with by the Labour Court in Kapari and Others v Office of the Chief Justice and Another.[23] In that case, the applicants relied on section 23 of the Constitution in support of declaratory relief sought to the effect that the respondents committed an unfair labour practice by advertising their positions. The applicants in that case argued that the LRA did not afford them a remedy because the definition of an ‘unfair labour practice’ in the LRA did not provide for advertising already-occupied positions, and therefore they would be entitled to rely directly on section 23. The Court dealt with these arguments as follows:[24]

 

‘To disregard the principle of subsidiarity and grant access to this (and other superior courts) on the basis of a direct application of the constitutional right to fair labour practices raises significant issues of principle. Halton Cheadle, who was instrumental in drafting both the LRA and the Constitution, observes that a right to fair labour practices is ‘an odd right to include in a Bill of Rights’ and that its insertion into the interim Constitution was part of a package of provisions to secure the support of the public service for the new constitutional dispensation, and in particular, the restructuring and transformation of the public sector (Davis, Cheadle & Haysom Fundamental Rights in the Constitution: Commentary and Cases at 212). Should the constitutional right to fair labour practices be held to extend beyond the traditional triad (ie to test the validity of legislation that gives effect to the right, to interpret that legislation and to develop the common law), and should it become the basis for the development of new, substantive rights, there is a clear danger that the finely balanced agreement that the LRA represents may be unraveled by well-meaning but enthusiastic judges. This is especially so where persons covered by the legislation concerned seek to develop a definition of unfair labour practice beyond that which already exists. Not least, there is the prospect of a ‘two-stream’ development of labour law, an issue that the LRA sought to eliminate and address by establishing a specialist labour court.

 

In short, it seems to me that to seek relief based on the direct application of s 23(1) of the Constitution is not an option open to the applicants. Should the applicants contend that the provisions of the LRA fail adequately to give expression to their constitutional right to fair labour practices, their remedy is to challenge the constitutionality of that Act.’

 

I cannot agree more.

 

[39] In National Education Health and Allied Workers Union and Others v University of SA and Another[25] the Labour Court followed the same approach, where the Court said:

 

‘… it is well accepted that direct reliance on the Constitution of the Republic of SA 1996 (the Constitution) is impermissible in the light of the subsidiarity principle as correctly submitted by counsel for the respondents. The subsidiarity principle dictates that, ‘where legislation has been enacted to give effect to a constitutional right, a litigant must either rely upon that legislation or challenge its constitutionality. It cannot bypass legislation and rely directly upon the right’, unless the ‘factual situation is complex and the legal position uncertain’. In the present case, the converse is true as the facts are crisp and predicable.

 

The applicants’ direct reliance on the Constitution rather than on the provisions of the LRA pertaining to unfair labour practice and/or unfair dismissal undermined the principle of subsidiarity …’

 

[40] It must follow that the applicant’s direct reliance on section 23 of the Constitution is ill-founded and simply not competent. The principle of subsidiarity stands squarely in the way of this part of his case. The applicant is therefore limited to establishing his right to relief by reference to the LRA only, as he has not pleaded nor relied upon any breach of contract.

 

[41] It is of course correct, as submitted by the applicant, that section 185 affords the applicant the right not to be subjected to an unfair labour practice. But the LRA does not stop there, and specifically defines what constitutes an unfair labour practice under the LRA. Section 186(2) defines an unfair labour practice as meaning:

 

‘… any unfair act or omission that arises between an employer and an employee involving-

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.’

 

[42] Where would the applicant’s cause of action then fit in, considering this definition? As stated above, the applicant has pleaded in his founding affidavit and argued in this Court that his recall constitutes nothing more than disciplinary action based on misconduct, that fair process therefore has to be followed before the decision to recall him is made, and the decision to recall him and transfer him back to South Africa constituted a disciplinary sanction.[26] If that case as advanced by the applicant is accepted to be the cause of action, then the cause of action is an unfair labour practice relating to ‘other unfair disciplinary action short of dismissal’, in terms section 186(2)(b) of the LRA. Once this is so, then the applicant faces an insurmountable obstacle. He came to this Court directly, without making any attempt to follow the prescribed dispute resolution process under the LRA for such an unfair labour practice dispute. This process required the applicant to refer his dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or applicable bargaining council to conciliation, and if conciliation failed, then to arbitration.[27] The LRA does not allow a direct approach to this Court. In Chirwa v Transnet Ltd and Others[28] the Court said:

 

‘It is my view that the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims …’

 

Following on, and in Gcaba supra[29] it was held:

 

‘… Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasized in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely tuned dispute-resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees …’

 

[43] It must follow that any application to approach this Court directly to challenge an unfair labour practice under the LRA is not permitted. The Labour Appeal Court in Member of the Executive Council for Education, North West Provincial Government v Gradwell[30] specifically dealt with the prescribed dispute resolution process in the case of an unfair labour practice and stated:

 

‘Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of s 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances …’

 

[44] So therefore, the applicant is compelled to have pursued his claim that he was unfairly dealt with and punished by the Department because of his alleged misconduct, in recalling him to South Africa, by way of a referral to the CCMA / bargaining council. It was not competent to approach this Court directly. As such, and by virtue of his failure to follow what is the described dispute resolution processes under the LRA, the applicant simply has no right to relief sought in his notice of motion.

 

[45] The Labour Court of course always remains entitled to grant a litigant interim relief, pending the final resolution of the dispute pursued in terms of the prescribed dispute resolution processes under the LRA.[31] But this entitlement of the Labour Court cannot come to the assistance of the applicant in casu, for two reasons. The first reason is obvious, being that the applicant has not asked for interim relief in his notice of motion, but has asked for final relief.[32] And secondly, there is no primary pending dispute resolution process pending in the prescribed forum, in respect of which the applicant can be granted interim relief. In this regard, the point is simple. In order to grant such interim relief, and as a jurisdictional fact, the dispute needed to have at least been referred to the CCMA or bargaining council in terms of section 191(1) of the LRA.[33] In De Beer v Minister of Safety and Security and Another[34] the Court held:

 

‘In terms of s 158(1)(a)(i) of the Act, the Labour Court is empowered, inter alia, to grant a litigant appropriate urgent interim relief. On the other hand, the Labour Court is not empowered, for example, to adjudicate a dispute about the fairness of a dismissal in circumstances where the dispute was not first referred to the CCMA, or the relevant council, as the case may be, for conciliation within the prescribed period. Section 191(1) of the Act requires that such a dispute be first referred to conciliation …’

 

Consequently, it follows that the applicant cannot establish a right to relief, even on an interim basis.

 

[46] The applicant, faced with the difficulty of being unable to establish a right the relief sought, then argued that because of the particular hardship that he would suffer as a result of his recall, this Court should nonetheless come to his assistance. This approach is erroneous. Logically speaking, this kind of argument suggests that the mere existence of particular personal circumstances and / or hardship on the part of the applicant effectively created a right to relief where none exists in the first place. This surely cannot be. If the right does not exist in the first place, no amount of hardship can save the situation, as one of the primary requirements for obtaining final relief is absent.

 

[47] The applicant sought an order to the effect that if the Department wanted to discipline him, this should be done in Zimbabwe. On what basis this Court would be able to grant this kind of relief, other than on the applicant’s own personal convenience and considerations, is not addressed in the founding affidavit. Such an order would in an event not be competent. It is not for this Court to prescribe to the Department at what location it must convene disciplinary proceedings. In fact, it is not even for this Court to prescribe to the Department that it should institute disciplinary proceedings in the first place. These issues resort within the sole prerogative of the Department. The order sought in this regard, even if considered in the context of some or other unfair labour practice dispute, would never be competent.

 

[48] All considered, it is not necessary to consider the applicant’s personal circumstances. The applicant has not exited the starting block of establishing his right the relief he is seeking. As such, he has not proven a clear right to the relief sought. That should be the end of the matter, no matter what the consequences may be where it comes to his particular personal circumstances.

 

[49]  Therefore, and in sum, the applicant has failed to make out a case for the relief he seeks. He has failed to establish a clear right to the relief sought. Insofar as he seeks to rely on a contention that his recall constituted an unfair labour practice, he is not able to directly rely upon the Constitution, and where it comes to any reliance in the LRA, he is compelled to follow the prescribed dispute resolution process as established by the LRA, which entails, in the first instance, a referral of the dispute to the CCMA or applicable bargaining council for conciliation, which he never did. As such, his own personal circumstances, upon which he placed so much reliance, cannot come to his assistance.

 

[50] In the interest of being complete, a consideration of the substance of the applicant’s unfair labour practice case leaves me convinced that it simply has no substance. It cannot be correct that recalling the applicant to South Africa from a foreign posting can be seen to disciplinary action and a sanction. It also cannot be seen as a demotion, because foreign posting is determined to be a horizontal move in terms of the Policy. When the applicant is recalled to South Africa, it changes nothing in his contract of employment or his employment conditions. He simply reverts to the employment position in the Department he always had prior to being posted in the foreign mission. If the Department. Following recall, then wants to reconsider his continued employment, the Department would have to institute disciplinary proceedings and then comply with all the provisions of the LRA. If the applicant is unhappy with the ultimate outcome in this regard, that is when he may pursue a dispute to the CCMA or bargaining council under the LRA.

 

[51] In my view, clause 9.12 of the Policy does not envisage that a disciplinary process must be followed to first prove the existence of misconduct on the part of the applicant before he can be recalled. Also in my view, clause 9.12 contemplates nothing more than a reasonable belief on the part of the Department of the existence of a particular circumstance as set out in that clause, in order for the Department to exercise its power to recall the employee. In fact, one of the grounds to justify an employee being recalled is any circumstances that may justify it. There is no suggestion that the Department acted with malice, arbitrarily or capriciously in recalling the applicant. The reason why the applicant was being recalled is common cause, and it is undeniable that the applicant failed in carrying out his duty to ensure the seamless and timeous departure of the President and his delegation from Zimbabwe. Whether this failure may have been a genuine mistake or gross negligence on the part of the applicant does not matter at this stage. The point is that the Department certainly has a reasonable belief that there exists misconduct and was, as such, entitled to recall the applicant under clause 9.12 of the Policy.

 

[52] The applicant’s suggestion that the Department simply acted unilaterally in recalling him is also not true. The Department firstly notified him of its intentions to recall him, and provided the reason why it wished to do so. The Department then afforded the applicant an opportunity to make representations as to why he should not be recalled, which the applicant did. The Department then considered his representations, however decided that it was insufficient to prevent his recall, and gave reasons why this was the case. Considering that the recall is not a disciplinary measure, as suggested by the applicant, I am satisfied that even considering the issue of fair process, the approach adopted by the Department was satisfactory.[35]

 

[53] For all the reasons as set out above, the applicant’s application must fail, as he simply has not established a clear right to the relief sought. The fact that he may suffer prejudice considering his personal circumstances, cannot change this. His application thus falls to be dismissed.

Costs

 

[54] Both parties have asked for an award of costs. In terms of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. The Constitutional Court has provided some guidance as to how this discretion is to be exercised. In Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[36] where that Court said:

 

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard in s 162, and the constitutional and statutory imperatives that underpin it …’

 

[55] It is true that the applicant has failed in his quest for the relief he sought. But I do not think he was mala fide in pursuing his application. In the context of the issue of costs, I will consider his personal circumstances, which in my view mitigates against mulching him with a costs order. I also consider that the parties are currently still in an employment relationship, and that the issue of the applicant’s alleged misconduct is far from concluded, which equally works against visiting the applicant with the prejudice of a costs order at this point. All considered, and in my view, fairness dictates that no costs order be made.

 

[56] It is for all the reasons set out above that I made the order that I did, as reflected in paragraph 3 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

APPEARANCES:

 

On behalf of the Applicant:    

Advocate K Mosime

Instructed by:  

Kgobokoe Inc Attorneys

On behalf of the Respondents:    

Mr S July of Werksmans Attorneys

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