Chubisi v SABC and Others (LC) (unreported case no J1169/20, 2-11-2020) (Tlhotlhalemaje J).

The applicant employee commenced her employ with the South African Broadcasting Corporation (SABC) in April 2011 as a radio presenter. On 1 April 2016, the applicant was appointed as a producer/presenter for one of SABC’s television (TV) shows.

Her appointment to the TV show was termed a ‘deviation from regulated recruitment process’. In terms of this process, the SABC, when recruiting for a strategic and critical role was afforded the discretion to deviate from its normal recruitment process if identifying a candidate with talent and scarce skills.

In 2017 and pursuant to an anonymous complaint, the Public Prosecutor initiated an investigation into the allegation that the applicant’s appointment as of 1 April 2016, was irregular and that there were more suitably qualified candidates who applied for the same post.

In March 2020, the Public Protector (PP) delivered a report finding that the SABC, when appointing the applicant, had unduly failed to follow its own recruitment process, in particular the fact that the post was never advertised. The PP listed four alternate remedial actions for the SABC to implement – instructive to the judgment was the fact that none of the remedies proposed by the PP included terminating the applicant’s employment.

On 30 June 2020, the SABC afforded the applicant to make written representations on the PP’s findings. In the same communication, the applicant was informed that the SABC intended not to recognise her employment contract on grounds that it was void ab initio.

On 19 October 2020 the SABC handed the applicant a document titled ‘Re: Notification of the non-recognition of your purported contract of employment with the SABC’, wherein she was notified that the SABC did not recognise her employment contract on grounds relating to her unlawful and irregular appointment, following which she was not considered an employee with immediate effect.

This prompted the applicant to launch an urgent application at the Labour Court (LC) seeking a declaratory order that her termination was unlawful, unconstitutional, invalid and of no force and effect and that she be allowed to return to work.

At court the SABC challenged the jurisdiction of the LC. In keeping with the Constitutional Court’s decision in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC), the SABC argued that the LC did not have jurisdiction to determine the lawfulness of an employee’s termination. This view, so the SABC argued further, was recently followed by the LC in Lieutenant General Phahlane and Another v South African Police Service and Others (LC) (unreported case no J736/20, 11-8-2020) (Van Niekerk J). In Phahlane the court held that the effect of Steenkamp was that the Labour Relations Act 66 of 1995 (LRA) did not provide a remedy for a claim that an employee’s dismissal was unlawful and thus the court lacked jurisdiction to make a determination on the lawfulness of a dismissal.

The applicant, relying on s 158 of the LRA, as well as s 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), argued that the court has jurisdiction to make an order declaring the applicant’s termination unlawful and that any reliance on the judgment in Steenkamp, was misplaced.

Having considered the respective arguments, the court held:

‘I agree with the views expressed by this court in Tshivhandekano v Minister of Mineral Resources and Others [[2018] 6 BLLR 628 (LC)] and Solidarity and Others v South African Broadcasting Corporation [[2017] 1 BLLR 60 (LC)] that the decisions in Steenkamp (and Phalane) ought to be understood within the context of what the Constitutional Court (and this court in Phahlane) was called upon to determine in the light of the pleadings before it.

In Steenkamp, the issues before the Constitutional Court and the LAC concerned the declarations of invalidity of dismissals based on non-compliance with the provisions of section 189A of the LRA. As La Grange J in Tshivhandekano correctly observed, Steenkamp was not concerned with the court’s exercise of its powers to determine contractual disputes under section 77(3) of the BCEA, nor was it concerned with the exercise of the court’s powers to “review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law” as provided for in section 158(1)(h). The Constitutional Court had found that a dismissal in breach of those provisions did not make the dismissal invalid because the invalidation of a dismissal is not a remedy contemplated by the LRA’.

The court noted that the matter before it was distinguishable from the plethora of urgent applications wherein employees claim their dismissal, disciplinary inquiry or suspension was unlawful whereas the true nature of their claim, viewed holistically, sought to challenge the fairness of their employer’s decision. In casu, the applicant was not informed that she had been dismissed or her employment terminated; all that she was advised was that her employment contract was not recognised anymore. In such circumstances it would be difficult for the applicant to discharge her onus of establishing a dismissal had she referred an unfair dismissal claim to the appropriate forum.

Additionally, the applicant’s pleadings did not refer to unfair dismissal or unfair labour practice nor did her pleadings infer any challenge on the fairness of the SABC’s conduct.

The court found that under s 158 of the LRA, together with a reading of the applicant’s pleadings, it had jurisdiction to consider the applicant’s claim.

Turning to the merits of the application, the court accepted that the Public Protector’s remedial actions were binding on the SABC. However, it further noted that nowhere in the report did the PP propose or recommend that the SABC not recognise the applicant’s employment contract. Nor was the SABC in a position to explain to the court why it had not opted for anyone of the proposals made by the PP when addressing the applicant’s irregular appointment.

Furthermore, the court aligned itself with the principle that if an existing employee is appointed to a certain position, whereafter it is found that the appointment was unlawful or irregular; then it does not follow that once the employee’s appointment is set aside, the employee ceases to be an employee. Under such circumstances the employee reverts to the position they occupied prior to the appointment which had been set aside.

The court declared the applicant’s termination unlawful and that she be allowed to immediately return to work. The court did, however, note that on the applicant’s return, the SABC had discretion to pursue any one of the remedial actions proposed by the PP.

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

This article was first published in De Rebus in 2021 (Jan/Feb) DR 45.