Chirwa v Transnet Ltd and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J and Navsa AJ
• Judgment Date: 28 November 2007
• Citation: 2008 (4) SA 367 (CC)
• Docket Number: CCT 78/06
• Hearing Date: 13 March 2007
• Counsel: MR Madlanga SC (with AM da Silva) for the applicant. TJ Bruinders SC (with K Green) for the respondents.
• Court: Constitutional Court

Skweyiya J:

Introduction C

[1] This case comes before us by way of an application for leave to appeal against the decision of the Supreme Court of Appeal. [1] The applicant further seeks condonation for non-compliance with the rules of this court both in relation to prescribed time frames and the manner in which D documents are to be lodged with this court.

[2] The matter concerns the dismissal of the applicant, a public sector employee, by Transnet Pension Fund, a business unit of Transnet Ltd. The applicant referred the dispute relating to her dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) as E provided for in s 191(1)(a)(ii) of the Labour Relations Act 66 of 1995 (LRA). [2] Conciliation failed to resolve the matter but the applicant did not pursue the matter further under the provisions of the LRA. Instead she approached the Johannesburg High Court where she sought the review and correction, or setting aside, of the decision of the third F respondent to dismiss her from the employ of the first respondent.

Parties to the litigation

[3] The applicant is Ms Petronella Nellie Nelisiwe Chirwa. She joined the staff of Transnet in May 1999 in the capacity of Human Resources G Manager. In December 2000 she was promoted to the rank of Human Resources Executive Manager and was transferred to the Transnet Pension Fund Business Unit.

[4] The first respondent is Transnet Ltd (Transnet), formed and incorporated under the provisions of the Legal Succession to the South H African Transport Services Act 9 of 1989. It is a wholly State-owned public company with a number of business divisions.

[5] The second respondent is the Transnet Pension Fund (the Fund),

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A which was established in terms of the Transnet Pension Fund Act 62 of 1990. The Fund is a business unit of Transnet.

[6] The third respondent, Mr Patrick Ian Smith, is employed as the chief executive officer of the Transnet Pension Fund Business Unit and is also the principal officer of the Fund. He is cited as a party to this matter B because he took the decision to dismiss Ms Chirwa.

Factual background

[7] A detailed factual background is necessary for the proper perspective of this case. Ms Chirwa assumed her duties as the Human Resources C Executive Manager with Mr Smith as her supervisor in January 2001. During October 2002 the relationship between the two soured.

[8] On 23 and 24 October 2002 she was subject to a disciplinary enquiry initiated by Mr Smith and chaired by Mr Barry Jammy, who was appointed by Transnet to investigate the allegation of misconduct lodged D against Ms Chirwa. The enquiry specifically concerned allegations that Ms Chirwa failed to exercise her managerial powers and to perform her managerial duties with reasonable care and skill, in that she did not comply with the instruction to fill the vacancy of a management accountant in the Property Asset Management Department. On the E recommendation of Mr Jammy, she was issued with a written warning on 11 November 2002 subsequent to the completion of the disciplinary hearing.

[9] Ms Chirwa sought to appeal against the decision to issue her with a written warning. In a letter dated 14 November 2002 Mr Smith F responded to her and explained that at the time there was no functional appellate structure within Transnet, because the proposed disciplinary code for the management of Transnet had not been ratified by the Executive Committee of Transnet. Mr Smith advised Ms Chirwa to challenge the written notice under the provisions of s 186(2)(b) of the G LRA. [3] It would appear that Ms Chirwa did not follow that advice but instead lodged a formal written grievance against Mr Smith in which she narrated the acrimonious nature of their relationship.

[10] By letter dated 15 November 2002 Mr Smith in his official capacity invited Ms Chirwa to an enquiry on 22 November 2002 to respond to H allegations of inadequate performance, incompetence and poor employee relations; the outcome of which would be a decision regarding her future at the Fund. The letter catalogues in detail instances of poor performance, incompetence and poor employee relations spanning a fairly lengthy period. The letter also contains a record of meetings that I were held to plan the improvement of Ms Chirwa's performance.

Skweyiya J

[11] Ms Chirwa refused to participate in the 22 November 2002 enquiry A on the grounds that she objected to Mr Smith being 'the complainant, witness and presiding officer at the same time'. Mr Smith proceeded with the enquiry and concluded that Ms Chirwa should be dismissed.

[12] In the letter of her dismissal dated 22 November 2002 Ms Chirwa was advised that in the event of her disputing her dismissal she was B entitled to exercise her rights as provided for by the LRA. The letter was signed by Mr Smith in his capacity as the chief executive officer of the Fund.

[13] Following her dismissal she referred the dispute to the CCMA by C alleging an unfair dismissal. [4] The CCMA was unable to resolve the dispute within 30 days. Accordingly it issued a certificate to that effect and recommended arbitration in accordance with s 191 of the LRA. Instead of proceeding to arbitration, Ms Chirwa approached the High Court where she sought an order to (a) set aside the disciplinary D proceedings that resulted in her dismissal and (b) reinstate her in her former position.

[14] Her complaint in the High Court was that the disciplinary proceedings were fundamentally flawed on two grounds. The first was that Mr Smith, her main accuser, who was also her supervisor, had E acted as a complainant, witness and a presiding officer during the disciplinary enquiry. It is not disputed that some 11 days prior to the disciplinary enquiry the applicant had received a written warning in disciplinary proceedings initiated by Mr Smith. Eight days before the disciplinary enquiry which is the subject-matter of these proceedings F the applicant had lodged a formal grievance against Mr Smith.

[15] The second ground was that she had not been afforded the opportunity to obtain legal representation. She alleged that the process of dismissing an employee for poor work performance is by its very nature complex. In support of this contention Ms Chirwa relied upon the G provisions of item 9 of the Code of Good Practice: Dismissal (the Code) contained in Sch 8 to the LRA, alleging that:

It involves, firstly, the setting of the requisite performance standard and, secondly, a determination of whether the employee concerned did meet the required performance standard. If the employee concerned H did not meet the required performance standard consideration must be given to whether or not:

(a)

the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(b)

the employee was given a fair opportunity to meet the required I performance standard; and

(c)

dismissal was an appropriate sanction for not meeting the required performance standard.

Skweyiya J

A [16] It is worth noting here that the passage cited above repeats almost verbatim the requirements set out in item 9 of the Code which provides that:

Any person determining whether a dismissal for poor work performance is unfair should consider -

(a)

B whether or not the employee failed to meet a performance standard; and

(b)

if the employee did not meet a required performance standard whether or not -

(i)

the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii)

C the employee was given a fair opportunity to meet the required performance standard; and

(iii)

dismissal was an appropriate sanction for not meeting the required performance standard.

[17] After setting out the relevant facts Ms Chirwa crucially concluded D that:

The aforegoing facts amply demonstrate that the third respondent failed to comply with the mandatory provisions of items 8 and 9 of Sch 8 to the Labour Relations Act, 1995 (Act 66 of 1995) (the LRA). That being so, the decision at issue is reviewable in terms of ss 6(2)(b) and 6(2)(f)(i) of the PAJA. [5]

E [18] It is therefore clear that Ms Chirwa's claim is based on the provisions of s 188 of the LRA read with items 8 and 9 of the Code. Section 188 of the LRA provides:

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove -

(a)

F that the reason for dismissal is a fair reason -

(i)

related to the employee's conduct or capacity; or

(ii)

based on the employer's operational requirements; and

(b)

that the dismissal was effected in accordance with a fair procedure.

(2) Any person considering whether or not the reason for dismissal is G a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.

[19] The explanation offered by Ms Chirwa for approaching the High Court instead of the Labour Court was that she had two causes of action H available to her; one under the LRA and the other flowing from the Bill of Rights read with the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). She further explained that in the light of these options she had decided 'for practical considerations' to approach

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the High Court in the exercise of her constitutional right of access to A court. Consistent with this attitude, in this court as in the court below, it was contended on her behalf that the High Court had concurrent jurisdiction with the Labour Court in respect of her claim.

The questions presented

[20] The central question in this matter is whether Parliament conferred B the jurisdiction to determine...