Moksha Naidoo BA (Wits) LLB (UKZN) is a practicing advocate holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

Section 186(2) of the Labour Relations Act 66 of 1995 (LRA), defines an ‘unfair labour practice’ as ‘any unfair act or omission that arises between an employer and an employee’.

There have been divergent views as to whether a former employee can refer a dispute, other than an unfair dismissal dispute, against their erstwhile employer.

In Sithole v Nogwaza NO and Others (1999) 20 ILJ 2710 (LC), the Labour Court (LC) held that the remedies concomitant with unfair labour practices, as set out in the LRA are only available to a person who was in an employment relationship at the time they referred their dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council.

In other decisions our courts have held that an ex-employee may refer a dispute regarding the alleged unfairness on the part of their previous employer. In Malope v Crest Chemicals (Pty) Ltd (LC) (unreported case no JS286/15, 20-2-2017) (Van Niekerk J), the employee retired and, thereafter, referred a dispute alleging unfair discrimination under the Employment Equity Act 55 of 1998. Considering the definition of an ‘employee’ the court held:

‘It is not in dispute that the applicant was an employee during the period to which his equal pay claim relates. The fact that he was no longer an employee at the time the claim was referred, in my view, is not fatal. … I fail to appreciate on what basis the definition of ‘employee’ in the EEA precludes him from referring a claim in which he exercises the right under s 6, provided of course that the claim is made within the applicable time limit or any late referral is condoned’.

In Velinov v University of KwaZulu-Natal and Another [2006] 6 BLLR 607 (LC) the employee unsuccessfully applied for a promotion, pursuant to which he resigned. While working his notice period he referred a dispute to the CCMA alleging his non-appointment was unfair. On review and in addressing the argument that the CCMA lacked jurisdiction to hear the employee’s claim, the court held:

‘I do not accept that an employee whose employment has been terminated either by resignation or otherwise, but who continues to work out his or her notice period, does not enjoy the protection of the provisions of the LRA and particularly the unfair labour practice provisions contained in Chapter VIII. This would not only be contrary to section 186(2) which, in defining an “unfair labour practice”, does not distinguish between different categories of employees but it is also contrary to the definition of “employee” in section 213.’

More recently, the Constitutional Court in Pretorius and Another v Transport Pension Fund and Others [2018] 7 BLLR 633 (CC) appreciated the notion that the LRA has recognised unfair labour practices under the LRA may extend beyond the end of an employment relationship.

In considering the above authorities the LC in Magoshi v Gauteng Department of Education and Others (LC) (unreported case no JR864/15, 2-10-2018) (Tlhotlhalemaje J), had to decide whether a bargaining council had jurisdiction to hear the employee’s unfair labour practice dispute.

Background

In January 2014 the applicant, a principal of a secondary school, applied for a principal’s post at another school. Subsequent to making his application but before the department assessed all applications, the applicant resigned on 30 April 2014.

In August 2014 the applicant, having been shortlisted, attended an interview for the post. Later that same month he was advised that his application had been unsuccessful.

Aggrieved by his non-appointment the applicant referred an ‘appointment/promotion’ dispute to the bargaining council. His matter was dismissed at arbitration whereafter he approached the LC.

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

The central question before the court was whether, under the circumstances set out above, the bargaining council had jurisdiction to hear the applicant’s claim.

In assessing the decisions in Malope, Velinov and Pretorius, the court found that even on a less restrictive interpretation of the definition of an ‘employee’, together with the right to fair labour practice extending beyond an employment relationship; did not open the door for all ex-employees to refer disputes, other than unfair dismissal disputes, against their erstwhile employers. The common thread in all these judgments was that the alleged unfairness complained of by all three employees, occurred while they were still in the employ of their respective employer’s and not after their employment relationship had been terminated.

Addressing the sequence of events in this instance the court held:

‘In this case, the circumstances are quite distinguishable from those of the three above mentioned authorities. These facts do not indicate that the alleged wrong or unfairness took place during the tenure or before termination of the employment relationship. The post in contention was advertised in January 2014. When Mahlase submitted his application, he was still employed by the department. In April 2014, he had resigned from his position. The process of interviews and the appointment of the successful candidate took place in August 2014, long after the applicant had resigned. Thus, even if Mahlase was entitled to pursue any claim of unfairness, subsequent to his resignation, the impugned process of interviews and the decision to select and appoint Njoli, took place at the time when Mahlase was no longer an employee.’

Continuing this line of reasoning, the court held that the fact that the applicant was an employee at the time he applied for the post was of little relevance – the alleged unfairness could only have taken place after the applicant resigned.

For these reasons the court substituted the award with an order that the bargaining council did not have jurisdiction to hear the applicant’s claim. No order as to costs were made.

This article was first published in De Rebus in 2018 (Dec) DR 41.