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
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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