During the last two days, the Labour Court judgment in the matter of Solidarity and Others v The South African Broadcasting Corporation (“SABC”) (case no. J 1343/16, 26 July 2016) has been widely publicised and is well-known to South Africans.
The judgment relates to a protest policy recently introduced by the SABC, in terms of which it would no longer broadcast footage of destruction of public property during protests. Some journalists, including the individual applicants, raised concerns about the implementation of this policy, which led to their suspension and ultimately their dismissals. In summary, on 26 July, the Labour Court ordered that the dismissal of the four journalists was unlawful and that they were entitled to return to work at the SABC. Aside from the great public interest in the matter, the judgment also raises interesting employment law issues regarding:
- jurisdiction of the Labour Court to entertain the claim
- breach of contract
- violation of constitutional rights
The SABC alleged that the Labour Court lacked jurisdiction to entertain the matter as the Labour Relations Act, 1995 (“LRA”) precludes journalists from approaching the Labour Court directly and that they were bound to the dispute resolution procedures provided for in the LRA, i.e. referring unfair dismissal disputes to the Commission for Conciliation, Mediation and Arbitration. The SABC argued that the LRA does not provide remedies for unlawful or invalid dismissals. On this point, the Court found that: “It does not follow as a matter of logic that because the LRA does not provide such remedies that such remedies do not exist or that this Court cannot grant them if they do exist.” This aside, the journalists did not rely on the unfair dismissal procedures in the LRA, but on breach of contract. The journalists alleged that they were not afforded the opportunity to participate in disciplinary enquiries, which are provided for in their contracts of employment. The Labour Court held that it is empowered in terms of section 77(3) of the Basic Conditions of Employment Act, 1997 to entertain contractual disputes and grant specific performance.
breach of contract
The journalists’ contracts of employment, read together with the SABC Disciplinary Code and Procedure, afford them the opportunity to participate in a disciplinary hearing prior to being dismissed. However, the SABC dismissed the journalists without affording them such an opportunity. The SABC stated that it was entitled, in terms of its code, to “summarily dismiss” the employees, who it alleged deliberately caused negative publicity of SABC affairs. The Court held that it would be absurd to interpret the provision of the code to mean that no disciplinary hearing will be afforded to anyone charged with this misconduct. The Court confirmed that the journalists were entitled to a disciplinary enquiry and their dismissals could be declared invalid on this basis alone.
violation of constitutional rights
The journalists alleged that their constitutional right to freedom of speech had been violated and that this violation went to the substantive fairness of their dismissals, which were based on them exercising this right. Although the Court did not specifically pronounce on whether the journalists right to freedom of speech was violated, it did find that because of s157(2) of the LRA, which provides that “the Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from – (a) employment and from labour relations; (b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative conduct, by the State in its capacity as employer”, the Labour Court may grant relief for the violation of constitutional rights within the ambit of labour matters. From the relief the Court awarded, it appears that it endorsed the journalists’ position that their constitutional right to freedom of speech was violated.
It is interesting that, apart from the usual factors taken into account when considering urgency such as balance of convenience, clear right, etc., the Court took into account much broader considerations such as the SABC’s role in the upcoming local elections and the journalists’ specific duties.
The Court took a firm and unusual stance on the issue of costs. The Court ordered that the two employees of the SABC who were directly involved in the dismissal of the journalists must file affidavits stating why they should not be held personally liable for the costs of the application, including the cost of two counsel. This may be a sign of the Labour Court’s dissatisfaction relating to unnecessary litigation funded from public coffers.