Jenkin v Minister of Manpower and Another

• Jurisdiction: South Africa
• Judgment Date: 17 August 1987
• Citation: 1988 (4) SA 367 (N)

Jenkin v Minister of Manpower and Another
1988 (4) SA 367 (N)

1988 (4) SA p367

Citation	1988 (4) SA 367 (N)
Court	Natal Provincial Division
Judge	Kriek J and Howard J
Heard	February 27, 1987
Judgment	August 17, 1987

Flynote : Sleutelwoorde B

Employment law — Dismissal — Applicant employed by State Fuel Fund Association (second respondent) for 18 years — Applicant dismissed — C Only reason given was that police had not given him a security clearance — Minister refusing to establish a conciliation board in terms of s 35 of Labour Relations Act 28 of 1956 — Minister taking into account that there had been confidential directive that employees required security clearances and alleged that s 7 of Petroleum Act 120 of 1977 prohibited an employer from employing anyone without security clearance — Second D respondent alleging it was contractually entitled to dismiss employee and obliged to do so in terms of s 3 of the National Key Points Act 10 of 1980 and s 7 of the Protection of Information Act 84 of 1982 — None of these Acts relevant — Directive neither having the force of law nor applying to the employment contract — Minister failing to consider E whether it was expedient to establish a conciliation board as he was obliged to do by s 35(4) of Labour Relations Act — Court granting application to set aside Minister's refusal to establish conciliation board.

Labour law — Labour Relations Act 28 of 1956 — Establishment of F conciliation board in terms of s 35 — Minister refusing application for establishment of conciliation board as he deemed dispute did not involve an unfair labour practice and on merits there were no circumstances justifying establishment of a board — Applicant dismissed from employment without the opportunity of making any representations — Reason for dismissal based on Ministerial directive which was neither G the law nor forming any part of contract of employment — Minister failing to consider whether it was expedient to establish a conciliation board as he was obliged to do by s 35(4) of Labour Relations Act — Application to review and set aside Minister's refusal to establish conciliation board granted.

Headnote : Kopnota

Applicant, formerly the operations superintendent in charge of second respondent's (the State Fuel Fund Association) operation in Durban, had been dismissed after 18 years of employment. The only reason given for his dismissal was 'that the SA Police had not given him a security clearance'. Applicant applied to first respondent for the establishment of a conciliation board in terms of s 35 of the Labour Relations Act 28 of 1956. The Minister refused the application as he deemed that the I dispute was not an unfair labour practice and, on the merits, that there were no circumstances which justified the establishment of a conciliation board. The Minister had taken into consideration the following factors, namely that (1) there had been a confidential directive from the office of the Prime Minister that second respondent was expected to obtain security clearances in respect of each of its employees and (2) s 7 of the Petroleum Act 20 of 1977 allegedly prohibited an employer retaining an employee who could not obtain a J security clearance. Second respondent alleged

1988 (4) SA p368

A that it was 'contractually entitled' to terminate the applicant's services but admitted that the 'directive emanating from the Prime Minister was neither the law nor part of the applicant's employment contract'. Second respondent alleged further that it was obliged under s 3 of the National Key Points Act 10 of 1980 and s 7 of the Protection of Information Act 84 of 1982 to obtain security clearance for applicant. Applicant sought an order to review and set aside first respondent's B refusal to establish a conciliation board.

Held, that s 7 of the Petroleum Products Act 120 of 1977 dealt only with the vicarious liability of an employer for an act or omission by his employee which constituted an offence under the Act.

Held, further, that first respondent's reason for concluding applicant's dismissal did not involve an unfair labour practice and that on merit there were no grounds which justified the establishment of a C conciliation board were based upon the terms of a directive which was not the law nor part of applicant's contract of employment and a complete misconception of s 7 of the Petroleum Products Act.

Held, further, that s 3 of the National Key Points Act 10 of 1980 and s 7 of the Protection of Information Act 84 of 1982 were entirely irrelevant for present purposes and certainly did not oblige second respondent to obtain security clearance for an employee in the position applicant occupied.

D Held, further, that first respondent had given no consideration to the question whether or not it was expedient for him to establish a conciliation board as he was required by s 35(4) of the Labour Relations Act to do.

Held, further, having regard to the manner in which applicant was dismissed from second respondent's service (he was not given the opportunity of making any representations with regard to the matter of his dismissal) and the reason given for his dismissal (based as it was E on the Ministerial directive which neither had the force of law nor formed any part of applicant's contract of employment) there was every reason to conclude that it was expedient to establish a conciliation board. Application granted.

Case Information

Application to review a decision by first respondent refusing to establish a conciliation board. The facts appear from the reasons for judgment.

F C R Nicholson for applicant.

N D van der Reyden for the respondents.

Cur adv vult.

Postea (17 August 1987).

Judgment

Kriek J:

On 30 September 1985 applicant applied to first respondent under the provisions of s 35 of the Labour Relations Act 28 of 1956 for the establishment of a conciliation board to consider a dispute between him and second respondent arising from his dismissal from second respondent's service on 15 February 1985. He had been in second H respondent's service for about 18 years, and by the time of his dismissal he was an operations superintendent in charge of second respondent's Durban operation. The only reason given to him for his dismissal was that the South African Police had refused to grant him a security clearance. He did not accept that he had been lawfully I dismissed, and in his application for the appointment of a conciliation board he claimed that, in dismissing him, second respondent had committed an unfair labour practice in the sense in which that phrase is defined in s 1 of Act 28 of 1956. On 30 January 1986 first respondent refused the application.

In these proceedings (instituted under the provisions of Rule 53) J applicant sought an order reviewing and setting aside first respondent's

1988 (4) SA p369

Kriek J

A refusal to establish a conciliation board and directing him to do so within a certain period. He also sought an order for costs against a respondent opposing the...