UNFAIR LABOUR PRACTICES REFERRED BY EX-EMPLOYEES

There are two recent cases which shed some light on how to approach unfair labour practices referred by ex-employees. The principle is confirmed that an ex-employee may only refer an unfair labour practice case against a former employee is the unfairness arose during the course of the employment relationship.

The first is Magoshi v Gauteng Department of Education and Others (LC) (unreported case no JR864/15, 2-10-2018), and the second is IMATU obo Joubert v Modimolle Local Municipality [2018] 11 BLLR 1106 (LAC).

In the first case, Magoshi v Gauteng Department of Education and Others (LC), Magoshi, a principal of a secondary school, applied for a principal’s post at another school. After making his application but before the Gauteng Department of Education (“GDoE”) assessed the applications for the post, Magoshi resigned.

Magoshi was shortlisted, and attended an interview for the post but was later advised that his application was unsuccessful.

Magoshi was aggrieved by his non-appointment and he referred an ‘appointment/promotion’ dispute to the Education Labour Relations Bargaining Council.

The matter was dismissed by the bargaining council at arbitration. Magoshi then took the matter on review to the LC to set aside the decision of the bargaining council.

On review it was unclear to the Labour Court whether the arbitrator dismissed Magoshi’s claim on grounds of jurisdiction or on the merits. However, once the GDoE had raised the point that the bargaining council lacked jurisdiction to hear the claim, the Labour Court held that it was bound to consider the matter afresh as opposed to adopting the reasonableness review test.

The question before the Court was whether the bargaining council had jurisdiction to hear Magoshi’s claim.

The Labour Court found that even on a less literal,restrictive interpretation of the definition of an ‘employee’, ex-employees were restricted from referring unfair labour practice disputes which arose after the termination of their employment relationship with their ex employers.

The Court drew a distinction between other cases where ex-employees had been allowed to pursue unfair labour practice claims against their ex employers on the basis that in those cases, unlike Magoshi’s case, the unfairness complained of arose while the employment relationship was still in place.

In Magoshi’s case, the Court found that the alleged wrong or unfairness took place after the termination of his employment by way of resignation.

When Magoshi submitted his application for the position, he was still employed by the department. The process of interviews and the appointment of the successful candidate took place long after Magoshi had resigned

The court held that the fact that Magoshi was an employee at the time he applied for the post was of little relevance – the alleged unfairness only took place after he resigned.

Therefore the court substituted the award with an order that the bargaining council did not have jurisdiction to hear Magoshi’s claim. No order as to costs was made.

In the second case of IMATU obo Joubert v Modimolle Local Municipality [2018] 11 BLLR 1106 (LAC), Joubert was employed by Modimolle Local Municipality on a fixed term contract. During the course of her contract she applied to be appointed in a permanent position as administration clerk.

Joubert’s application was unsuccessful, and she referred an unfair labour practice dispute relating to promotion to the South African Local Government Bargaining Council.

The bargaining council found in favour of Joubert and ordered the municipality to appoint her retrospectively into the position of administration clerk.

The municipality refused to reinstate Joubert and instead sought to review the award. The review application was dismissed due to a failure by the municipality to pursue its review application timeously.

The municipality still did not appoint Joubert to the position of administration clerk. Consequently, IMATU on Joubert’s behalf launched a contempt application in the Labour Court against the municipality for a failure to comply with the arbitration award. The municipality argued that it could not appoint her to the position per the bargaining council award because the post no longer existed.

 In considering whether the municipality’s failure to comply with the award had been in bad faith and deliberate, the Court found that Joubert had not been entitled to be promoted to the position of administration clerk.

The Court held that the unfair labour practice jurisdiction extended only to employees and since Joubert’s contract had expired at the time of the award, and with no challenge to the expiry of her employment contract, it was not competent for her to demand reinstatement so that she could be promoted.

The court held that the award in an unfair labour dispute concerning promotion could not restore the employment relationship between an employee and employer.

On appeal to the Labour Appeal Court (LAC), IMATU contended that the LC had effectively sought to review the award when the contempt application before it should have been granted.

In this regard, IMATU submitted that since an unfair labour practice dispute relating to promotion may be determined by a bargaining council on terms that it deems reasonable, which may include ordering reinstatement or re-employment, the relief granted was competent. When the fixed term contract expired, a dispute existed between Joubert and the municipality and, accordingly, the award was enforceable.

The LAC found that a fixed term contract employee is only employed for a limited duration to a particular post. Such an employee may, however, apply and/or be offered a permanent position and this would remove the employee from the realm of a fixed term contract and see her employed in another post.

The LAC held that in this matter, it was apparent that Joubert applied for the post and was unsuccessful. This could not amount to a failure by the municipality to promote her because she was not an employee who could be promoted based on her fixed term contract. She had, in effect, applied for a vacant post and had not sought promotion to a vacant post.

The court held that a fixed term employee is in the same position as a non-employee who applied for a post. Thus, the reliance on an unfair labour practice relating to promotion was misconceived. At the time the award was issued, Joubert was no longer an employee of the municipality.

Since no unfair dismissal dispute had been referred to the bargaining council for adjudication, the expiry of her fixed term contract went unchallenged. The arbitrator in the promotion dispute was not empowered to determine an unfair dismissal dispute and consequently could not order the reinstatement of the applicant into a position at the municipality.

Comment Both of these matters provide some necessary guidance on how we should approach unfair labour practice disputes referred by erstwhile employees. There has long been divergent views as to whether a former employee can refer a dispute, other than an unfair dismissal dispute, against their erstwhile employer. The Court had previously held that unfair labour practice remedies are only available to a person who was in an employment relationship at the time they referred their dispute to the CCMA or bargaining council (Sithole v Nogwaza NO and Others (1999) 20 ILJ 2710 (LC)). In other decisions the same Court held that an ex-employee may refer a dispute regarding the alleged unfairness on the part of their previous employer, as long as the unfairness arose during the course of their employment (Malope v Crest Chemicals (Pty) Ltd (LC) (unreported case no JS286/15, 20-2-2017) and Velinov v University of KwaZulu-Natal and Another [2006] 6 BLLR 607 (LC)).