In April 2012 the Labour Court in the matter of Ndikumdavyi v Valkenberg Hospitals and Others had to decide whether the withdrawal of a permanent offer of employment (where continued employment would have been in breach of South African legislation and the employer’s policy due to the employee’s refugee status expiring) would amount to an unfair dismissal.
Mr Ndikumdavyi was a Burundian citizen. In terms of the National Health Department’s policy on the recruitment and employment of foreign health professionals in South Africa (“the Policy”) he qualified as a foreign health professional. He had also been certified as a refugee in terms of the Refugees Act.
Mr Ndikumdavyi obtained his nursing degree in South Africa. He received a letter from the sub-directorate: foreign workforce management of the National Department of Health advising him that he could take up employment in South Africa. He was also endorsed by the National Department of Health entitling him to seek employment and apply for registration, subject to certain conditions. He furthermore received his annual practicing certificate from the South African Nursing Council which was valid up until 31 December 2010.
Mr Ndikumdavyi accepted employment with Valkenberg Hospital. The effective date was 1 July 2010.
After he commenced employment he received a letter from the Hospital advising that the Hospital could only offer him a fixed term contract of employment as opposed to a permanent contract. He was also told that since his refugee status in South Africa would expire on 24 December 2010, the fixed term contract could not be extended past this date. The Hospital also had to obtain approval for his temporary appointment from the National Department of Health.
The Hospital then withdrew their offer of permanent employment with immediate effect and advised that the offer for temporary appointment would only be issued if the necessary approval had been obtained from the Department.
The matter came before the Labour Court who had to decide whether Mr Ndikumdavyi was automatically unfairly dismissed. The court held that it was unable to decide whether the Hospital’s policy was in contravention of the Labour Relations Act or unconstitutional but that it could decide whether Mr Ndikumdavyi was unfairly dismissed.
The Hospital argued that the appointment of Mr Ndikumdavyi was null and void from inception and that Mr Ndikumdavyi could not have been dismissed as his appointment was an administrative error. The Hospital relied on Section 10 of the Public Services Act which provides that “No person shall be appointed permanently whether on probation or not, to any post on the establishment in a department unless he or she:
- is a South African citizen or permanent resident; and
- is a fit and proper person.”
The court in deciding whether Mr Ndikumdavyi was an employee for purposes of the Labour Relations Act, found that the definition of “employee” was not rooted in the contract of employment. It found that a person who renders work on a basis other than that recognised as employment in common law may be an employee for the purposes of the definition. The contract of employment was not the sole ticket for admission into the golden circle reserved for employees.
The court was confronted with the fact that the definition of “dismissal” in the Labour Relations Act specifically refers to a contract of employment (which the Hospital argued was null and void from the start). The court confirmed that the definition of “dismissal” must be read in the context of the wider term of the employment relationship as opposed to a contract of employment. This would give effect to the primary object of the Labour Relations Act and provide equal protection for formal refugees and other vulnerable groups of employees.
The court then referred to the Labour Appeal Court matter of Kylie v CCMA and Others which dealt with the employment relationship between a sex worker and her employer and where the contract of employment was void for reasons of illegality. The court in that matter found that the criminalisation of prostitution did not mean that a sex worker was denied the protection of the Constitution and in particular fair labour practices. It found that, if the purpose of the Labour Relations Act was to achieve noble goals, then courts have to be at their most vigilant to safeguard those employees who are particularly vulnerable to exploitation in that they are inherently economically and socially weaker than their employers.
The court concluded that the administrative error that the hospital made by employing Mr Ndikumdavyi in the first place led to the unfair termination of the employment relationship. The Hospital was obligated to be aware of the provisions of the Public Services Act and of a policy which it is bound to apply. The court however found that due to the provisions of the Public Services Act, it could not find that the dismissal was substantively unfair. The court found that the dismissal was procedurally unfair in that the Hospital made no attempt whatsoever to afford Mr Ndikumdavyi a right to be heard before summarily dismissing him.
The court ordered the Hospital to pay Mr Ndikumdavyi the equivalent of 12 months remuneration at the time of his dismissal. Costs were also awarded against the Hospital.
This case confirmed that formal refugees are also entitled to the protection afforded by the Labour Relations Act.
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