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Can an employee prevent their employer from dismissing them?
The Labour Court recently revisited this issue in its judgment handed down on 6 June 2014 in Mmatli & 19 Others v Department of Infrastructure Development (Gauteng Province) J1238/14.
Facts of the case:
- The applicant employees were historically employed on a month-to-month basis by an entity within the Gauteng Department of Public Transport, Roads and Works.
- Their fixed-term employment contracts had been renewed a number of times until October 2009 when they were all transferred to the Department of Infrastructure and Development.
- A number of the applicant employees continued to work under this fixed-term employment contract and refused to apply for permanent positions when these became available. This resulted in the department issuing the remaining applicant employees with back-dated fixed-term employment contracts that would expire in September 2012.
- A dispute over the dates on which the employees would cease being employed subsequently ensued and was referred to the Labour Court.
- After this, the department embarked on a further project to absorb the applicant employees into permanent positions, but again the applicant employees refused to apply for these positions when they became available.
- Eventually, on 12 May 2014, the department issued letters to the applicant employees stating the following:
"We are pleased to inform you that your contract with the department has been renewed effective from 01 April 2011 until 30 June 2014.
"You are required to sign and submit the attached contract to the Human Resources Department by no later than 15 May 2014.
"Failure to submit a signed contract by 15 May 2014 will be construed as a rejection of the renewal of your contract. Accordingly, your services will be terminated in line with such rejection."
- The applicant employees refused to sign the letters and accordingly faced termination of their employment contracts. To avoid their termination, the applicant employees filed an urgent application in the Labour Court seeking to prevent their dismissals and force the department to act lawfully.
- In considering the matter, the Labour Court mentioned that section189 of the Labour Relations Act, No 66 of 1995 (LRA) - which deals with operational dismissals - was in all probability the relevant section based on the facts. However, the department hadn't embarked on such a process.
- Accordingly, the Labour Court held that the applicant employees had established that they had a right not to be unfairly dismissed, even if open to some doubt, and for this reason the first requirement for an interdict had been satisfied.
| What is an 'interdict'? |
| An 'interdict' is a civil remedy that can be applied for by persons who've been wronged by, for example, another person or company. There are two categories of interdicts:
• 'Mandatory interdicts' which force someone to do something, and • 'Prohibitory interdicts' which prevent someone from doing something. |
- In deciding this particular requirement, the Labour Court looked at the decision of Booysen v Minister of Safety and Security & Others (2011) 1 BLLR page 83 (LAC) at page 99 where:
- It was held that the Labour Court does indeed have jurisdiction to interdict any unfair conduct, including disciplinary action.However, such intervention should be exercised in exceptional cases only and should be left to the discretion of the court.
- The Labour Appeal Court held further that although it wouldn't lay down a legal test per se, one of the factors for consideration would be if the failure to intervene would lead to grave injustice or if justice may be achieved through an alternative remedy.
- With this in mind, in the Mmatli case the Labour Court held that justice was available to the applicant employees through other means, i.e. the unfair dismissal protections contained in section 186 of the LRA, which provides adequate assistance and relief to the applicant employees if they're unfairly dismissed.
- On this basis, the Labour Court dismissed the applicant employees' urgent application.
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Author: Nicholas Preston is a senior associate in the employment practice at Cliffe Dekker Hofmeyr. |
