Mogothle v Premier of the Northwest Province and others

MOGOTHLE v PREMIER OF THE NORTH WEST PROVINCE & ANOTHER[2009] 4 BLLR 331 (LC) 333suspension was extended. His action was based on an alleged breach of contract, allegedfailure by the respondents to comply with the provisions of the disciplinary code formanagers in the public service, and an alleged violation of his rights under the Promotionof Administrative Justice Act 3 of 2000 (“PAJA”). The respondent argued that the matterwas not urgent, that the Court lacked jurisdiction to entertain the matter and that, in anyevent, the applicant’s enforced “leave of absence” was lawful.The Court observed that the judgment in Chirwa v Transnet Ltd & others [2008] 2BLLR 97 (CC) cast considerable doubt on whether the applicant could claim relief underthe PAJA. However, the Court declined to rule on that point, since it sufficed to consideronly whether the Labour Court had jurisdiction to entertain the applicant’s claim undercontract. The Court noted in this regard that in three recent judgments, the SupremeCourt of Appeal has emphasised the mutual relationship of trust and confidence imposedby the common law contract of employment (see Old Mutual Life Assurance Co SA Ltd vGumbi [2007] 8 BLLR 699 (SCA); Boxer Superstores Mthatha & another v Mbenya[2007] 8 BLLR 693 (SCA); and Murray v Minister of Defence [2008] 6 BLLR 513(SCA)). Although the development of the element of fairness in the common law contractof employment was controversial, the SCA had unequivocally established a contractualright to fair dealing which binds all employers and confers on all employees a rightto enforce that right, which exists independently of statutory protection against unfairdismissal and unfair labour practice. The Court held that, in the absence of any higherauthority to the contrary, it was obliged to follow the SCA judgments.The Court noted further that the respondent had argued that on a “broad reading”, theChirwa judgment had impliedly overruled the SCA judgments. On that point, the Courtnoted that the Chirwa judgment could be read on two levels. Narrowly construed, thejudgment dealt only with whether the High Court had jurisdiction to entertain claims bydismissed public servants. At a more general level, the Chirwa judgment suggests that allemployment-related disputes involving allegations of unfair conduct by employersshould be decided in the dispute resolution forums established under the Labour RelationsAct 66 of 1995 (“the LRA”). The latter reading would mean that, in the light ofChirwa, any remedy established by the LRA must be pursued to the exclusion of anyright that may previously have existed. However, although the Chirwa judgment constitutesan obvious endorsement of the mechanisms, institutions and remedies created bythe LRA, the judgment did not expressly exclude the right of employees to pursuecontractual claims either in the Labour Court by virtue of the provisions of the BasicConditions of Employment Act 75 of 1997 (“the BCEA”) or in a civil court with therequisite jurisdiction. If the Constitutional Court wished to override three judgments ofthe SCA, it would have done so in express terms.The Court held further that the concurrent jurisdiction of the Labour Court and thecivil courts in matters concerning contracts of employment did not conflict with thepolicy considerations expressed in Chirwa. The BCEA, enacted two years after the LRA,was also the product of negotiation between the social partners. By enacting section77(3) of the BCEA, the drafters acknowledged that disputes concerning contracts ofemployment had not been eclipsed by the LRA. Any problems that might be created bythe concurrent jurisdiction of the Labour Court and civil courts in disputes concerningcontracts of employment would be for the Legislature to resolve.Turning to the merits, the Court noted that the suspension of an employee pending aninquiry into alleged misconduct is equivalent to an arrest, and should therefore be usedonly when there is a reasonable apprehension that the employee will interfere withinvestigations or pose some other threat. The Court noted that there have been twoapproaches to “preventive” suspension – one holding that a hearing before suspensionwas not necessary, the other holding that it is. The second approach is consistent with fairdealing in the employment context. This requires that an employee should not be suspendedunless there are prima facie grounds for believing that the employee has committedserious misconduct and there is some objectively justifiable reason for excluding theABCDEFGHIJ