Case Number: PSES 321-05/06WC
Province: Western Cape
Applicant: U D GAFFLEY
Respondent: DEPARTMENT OF EDUCATION WESTERN CAPE
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 6 October 2005
Arbitrator: Adv D P Van Tonder
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES 321-05/06WC
In the matter between
U D GAFFLEY Applicant
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
ARBITRATOR: Adv D P Van Tonder
HEARD: 22 SEPTEMBER 2005
DELIVERED: 06 OCTOBER 2005
SUMMARY: Labour Relations Act 66 of 1996 – Jurisdiction of ELRC to hear disputes in respect of which an internal appeal has been noted and is still pending – Jurisdiction of ELRC to hear disputes regarding victimisation and discrimination in respect of acts which did not result in a dismissal and neither qualifies as an unfair Labour Practice as defined in section 186(2) of the LRA
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
[ 1 ] On 10 August 2005 applicant referred a dispute to the ELRC.
[ 2 ] The matter was set down for a Conciliation hearing on 22 September 2005 at the offices of the Western Cape Department of Education in Cape Town. The applicant was present and represented by Mr. B Magjika of SADTU. Respondent was represented by Ms. H Bouwer of the Western Cape Provincial Department of Education.
[ 3 ] No evidence was heard and the merits of the matter was informally canvassed during the conciliation hearing to attempt to settle the matter. No settlement could however be reached. I have now been requested to make a jurisdictional ruling regarding the matter referred to this tribunal by applicant.
THE ISSUES IN DISPUTE
[ 4 ] Applicant has essentially referred two disputes to the ELRC, which I will briefly deal with.
Dispute concerning alleged unfair disciplinary action
[ 5 ] The one dispute is a dispute relating to an alleged unfair labour practice in the form of alleged unfair disciplinary action which was taken against applicant when respondent, after a disciplinary hearing, convicted applicant of alleged misconduct and fined her to R1500. During June 2005 applicant lodged an internal appeal against her conviction as well as the sanction which was imposed. That appeal is still pending and I was advised by the parties that it may still take months before the appeal has been finalized. During the conciliation hearing, applicant advised that she would not like to abandon the appeal and that she would therefore like the arbitration hearing to be postponed indefinitely pending the outcome of the appeal.
Dispute concerning alleged unfair discrimination and/or victimisation
[ 6 ] The second dispute which was referred by applicant actually consists of various complaints against the principal and governing body of Sarepta Secondary School in Kuilsriver where applicant is employed as a teacher. It is not necessary for purposes of this ruling to deal with the merits of these disputes, except for saying that applicant is of the opinion that she is being victimized and/or being unfairly discriminated against by the principal and governing body.
The Dispute concerning alleged unfair disciplinary action
[ 7 ] In terms of section 25 of the Employment of Educators Act No 76 of 1998, an educator has a right to appeal to the Member of the Executive Council against the finding by the presiding officer of a disciplinary hearing that the educator has committed misconduct and against the sanction imposed. Applicant had indeed during June 2005 lodged such an appeal against both her conviction as well as the fine which was imposed as sanction by the presiding of the disciplinary hearing. The appeal is currently still pending and there is no indication when the appeal will be finalized. Applicant’s request was that this tribunal should not proceed with the arbitration hearing until the appeal has been finalized and accordingly requested that the arbitration be postponed sine die until finalisation of the appeal.
[ 8 ] In our law there is a rule that domestic remedies should be exhausted before a court of law or tribunal is approached for relief. This rule has been justified on the basis that:
8.1 it is unreasonable for a party to rush to court before his domestic remedies are exhausted;
8.2 the domestic remedies are usually cheaper and more expeditious than the judicial remedies, and
8.3 until a final decision has been given against an applicant by a domestic tribunal, any irregularity complained of may still be put right and justice done.
(See SA Commercial Catering & Allied Workers Union & Another v Shakoane & others (2000) 21 ILJ 1963 (LAC) para 67)
[ 9 ] A number of exceptions to the rule have been laid down where: (1) the tribunal or official appointed to afford the remedy has already prejudged the case; (2) an extrajudicial remedy by way of appeal exists and there has been no such decision at all, or if the decision was fraudulent or was reached otherwise than as the result of valid proceedings; (3) the extrajudicial remedy is not obligatory; (4) the tribunal, the proceedings of which it is sought to bring in review, has acquiesced in the review; (5) the tribunal established to afford the remedy is not authorized to rectify the irregularity complained of( See Law of South Africa Administrative Law (1st reissue) para 88)
[ 10 ] In labour law, the requirement that domestic remedies such as internal appeals, must first be exhausted before relief is sought in courts or employment tribunals, has been endorsed and followed by the Labour Appeal Court as well as the CCMA. If a dispute arises in an undertaking, the employee should first follow the internal appeal procedures to solve the problem before resorting to external resolution procedures(see Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union (1991) 12 ILJ 806 (LAC) 813; Vos v ABSA Insurance Brokers (Pty) LTD (2000) 21 ILJ 1027 (CCMA).
[ 11 ] However, it is now accepted that the mere existence of a domestic remedy is not necessarily always a bar to the jurisdiction of the Labour Court or employment tribunals such as the CCMA and the ELRC. All circumstances must be considered to determine whether referral of a dispute before exhaustion of domestic remedies, is premature. In fact, even where the domestic remedy has been pursued and its determination is still pending, a court may in appropriate circumstances assume jurisdiction(see Grundling v Van Rensburg NO 1984 (3) SA 207 (W); SA Police Union & another v Minister of Safety & Security & another (2005) 26 ILJ 524 (LC) 541).
[ 12 ] What is unusual about this case is not only the fact that the applicant has a domestic remedy in the sense of an internal appeal but also the fact that she has pursued that remedy, that the determination of that appeal is still pending and more importantly that she is requesting this tribunal to postpone the arbitration hearing pending the outcome of the internal appeal.
[ 13 ] It is a sound principle of our law that where a public authority has not yet completed its decisional process or if it is still busy negotiating with the complainant, that the complainant should not rush into court before finalisation of the decisional process. Doing so would be premature and courts would generally not be inclined to grant a remedy under such circumstances until such time as the matter is ripe for hearing, which would be when the public authority has finally completed its decision(see Baxter Administrative Law page 719).
[ 14 ] The mere fact that applicant herself does not want this matter to be heard until the appeal is finalized, certainly indicates that the referral has been prematurely made and not ripe for hearing yet. It is indeed understandable that applicant does not want to jeopardize her rights and miss out on the possibility of being successful with the internal appeal.
[ 15 ] On the other hand this tribunal has been intended to be a quick dispute resolution service and matters cannot be postponed indefinitely pending the outcome of internal appeals. The applicant will in any event not be prejudiced if required to first await the outcome of the internal appeal before approaching this tribunal again for relief. If the appeal is finalized and applicant is still unhappy with the result, she will be fully entitled to re-refer the matter to the ELRC again. In the circumstances, I am of the view that the dispute regarding the alleged unfair disciplinary action had been prematurely referred and I therefore rule that this tribunal has no jurisdiction to hear the matter until the internal appeal process has been finalized or alternatively until applicant has abandoned the appeal process.
The Dispute concerning alleged unfair discrimination and/or victimisation
[ 16 ] The second category of disputes relating to the alleged conduct by the principal and governing body allegedly amounting to victimization and/or discrimination, is more problematic. It is common cause that applicant had not been dismissed by respondent. The jurisdiction of this tribunal to hear disputes which relates to acts which did not result in a dismissal, is very limited.
[ 17 ] In terms of section 186(2) of the LRA, which reads as follows, an unfair labour practice is defined in a very limited manner:
'Unfair labour practice' means 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.
[ 18 ] To succeed in an action based on an alleged unfair labour practice, an employee must prove that the conduct or practice complained of, falls within the terms of one of the forms expressly listed in the definition as contained in section 186(2). If the conduct of the governing body and the principal could not be classified as such, the ELRC does not have jurisdiction to deal with the dispute.
[ 19 ] From the information supplied in the referral form, it is clear that neither the victimization nor the discrimination alleged by applicant could qualify as an unfair labour practice in terms of this very narrow definition of an unfair labour practice, as defined in section 186(2) of the LRA. Accordingly the ELRC does not have jurisdiction to deal with these issues.
[ 20 ] In terms of section 6 of the Employment Equity Act 55 of 1998, which reads as follows, an employee does have a remedy if unfair discrimination can be proved:
“6 Prohibition of unfair discrimination
(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”.
[ 21 ] Applicant may possibly have a claim in terms of section 6 of the Employment Equity Act. However, the ELRC has no jurisdiction regarding disputes arising from the Employment Equity Act. In terms of section 10(2) of the Employment Equity Act, only the CCMA has jurisdiction to conciliate such disputes, which must be referred in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination. If the CCMA cannot resolve the dispute, the dispute must be referred to the Labour Court for adjudication in terms of section 10(6) of the Act. Once again therefore, the ELRC does not have any jurisdiction to deal with the alleged acts of unfair discrimination.
[ 22 ] In the circumstances, an for the reasons I have given, the ELRC does not have any jurisdiction to deal with any of the issues referred by applicant.
I accordingly make the following order:
1. The ELRC has no jurisdiction to deal with any of the issues referred by applicant;
2 The applicant should exhaust the internal disciplinary appeal procedures regarding applicant’s conviction and sentence resulting from the disciplinary hearing before consideration is given to refer this matter to the ELRC again.
3. Once the internal appeal regarding applicant’s conviction and sentence resulting from the disciplinary hearing has been finalized, applicant is entitled to refer that dispute to the ELRC once again should she not be satisfied with the result.
4. No order as to costs is made.
__________________________ Adv D P Van Tonder BA LLB LLM
For the applicant: Mr. B Magjika of SADTU
For the respondent: Ms. H Bouwer