South African Broadcasting Corporation SOC Ltd v Phasha (JA 36/2019) [2020] ZALAC 50; [2021] 3 BLLR 270 (LAC); (2021) 42 ILJ 816 (LAC) (27 November 2020)

Key Facts

Transaction Type

Issues

• The court addressed whether the employer's decision to dismiss the employee for recusal applications was a separate process or part of the existing s 188A inquiry. The employer claimed the recusal applications were a separate form of misconduct, justifying summary dismissal. However, the court found that the applications were inextricably linked to the pre-dismissal arbitration and that the employer attempted to subvert the agreed s 188A process by classifying the recusal applications as separate. This circumvention rendered the dismissal unlawful, and the employee was entitled to specific performance of reinstatement, as the employer had breached the contractual agreement to follow the s 188A process.
• The court considered whether an employer could lawfully summarily dismiss an employee for recusal applications lodged during a pre-dismissal arbitration under s 188A of the LRA, without providing a hearing. The employer argued that the contract allowed summary dismissal for material breaches, including loss of trust, and that the recusal applications constituted such a breach. The court held that the contract's provisions for summary dismissal did not override the procedural requirements of s 188A, which mandates a disciplinary hearing for serious misconduct. The court emphasized that fair labor practices under the Constitution require a hearing, even if the contract's clause 25.2 suggests that the agreement prevails over policies. Thus, the employer's dismissal without a hearing was unlawful.

Holdings

• The court determined that the employee was entitled to specific performance of reinstatement with retrospective effect from 31 December 2018, without loss of remuneration or benefits. The appeal against this reinstatement order was dismissed, and the costs of the application were adjusted to be paid on a party-and-party scale.
• The court held that the employer's summary dismissal of the employee was unlawful as it circumvented the agreed s 188A pre-dismissal arbitration process. The recusal applications by the employee were deemed inextricably linked to the s 188A proceedings, and the employer's attempt to treat them as separate misconduct constituted a breach of the contractual agreement. This conduct undermined the purpose of s 188A, which requires finality in the agreed process.

Remedies

• The respondent is ordered to be reinstated to her position as General Manager: Commercial Services with the South African Broadcasting Corporation (SABC) with retrospective effect from 31 December 2018, without any loss of remuneration or benefits. The court also upheld an interdict preventing the SABC from taking disciplinary action against the respondent outside the s 188A process.
• The appeal is dismissed with costs. The order of the court a quo is upheld in part, specifically confirming paras 1 to 7 of the original order. The punitive costs order is set aside and replaced with a costs order on a party and party scale.

Legal Principles

• The court emphasized that parties to an employment contract must uphold their obligations, including pre-dismissal arbitration under s 188A of the LRA, and cannot unilaterally terminate the contract without following the agreed process. The employer's attempt to circumvent the arbitration was deemed a breach of this principle.
• The court applied a purposive interpretation of the employment contract to align with constitutional protections for fair labour practices (s 23 of the Constitution). This approach required considering the text, context, and purpose of the contract to ensure compliance with the law.
• The respondent's recusal applications were interpreted as a breach of the implied term of good faith in the employment relationship. The court found that the employer's summary dismissal based on these applications was unlawful, as the applications were inextricably linked to the s 188A process.

Precedent Name

• Vakalisa v South African Weather Services and others
• National Union of Textile Workers and others v Stag Packings (Pty) Ltd and another
• Santos Professional Football Club (Pty) Ltd v Igesund and another

Key Disputed Contract Clauses

• Clause 20.1.2 of the employment contract permits the employer to summarily dismiss the employee if they commit a material breach of their obligations, including a loss of trust or confidence. The employer argued this clause justified the dismissal for the recusal applications, which they alleged constituted a material breach. However, the court held that this clause does not override the procedural requirements of s 188A of the LRA, which mandates a disciplinary hearing for serious misconduct. The court emphasized that fair labor practices under the Constitution require adherence to due process, even if the contract's supremacy clause (25.2) suggests otherwise.
• Clause 25.2 of the contract states that the agreement, read with applicable policies, constitutes the whole agreement and that the contract's provisions prevail over any conflicting policies. The employer relied on this clause to argue that the summary dismissal provision (20.1.2) superseded the disciplinary code's requirement for a hearing. The court rejected this interpretation, noting that the clause must be read in context with constitutional protections for fair labor practices. The court found that the contract's language does not permit summary dismissal without a hearing, as required by s 188A of the LRA, and that the clause cannot be used to circumvent statutory procedural obligations.

Cited Statute

• Labour Relations Act 66 of 1995
• Constitution of the Republic of South Africa, 1996
• Basic Conditions of Employment Act 75 of 1997

Judge Name

• Davis
• Savage
• Phatshoane

Passage Text

• [37] The appeal is dismissed with costs... 'The South African Broadcasting Corporation SOC Limited, the first respondent, is to pay the costs of the application on party and party scale.'
• [28] This was clearly a case where the appellant relies upon form over substance in that, clearly frustrated by the in limine objections brought by respondent and ignoring the nexus between these objections and the s 188A process, it classified these objections as an entirely separate form of misconduct, unrelated to the substance of the s 188A process. It did so in order to justify summary dismissal and thereby circumvent the process which had already begun in terms of s 188A of the LRA.
• [35] That must be the position in this case given the finding to which this court has arrived; that unlawfulness renders the initial decision void. And that means that the respondent is entitled to be put back into a position from which she was unlawfully removed.

Damages / Relief Type

• The appeal is dismissed with costs.
• Respondent must be reinstated to her position with the SABC.