in the labour court of South Africa, JOHANNESBURG
Not Reportable
case no: JS463/21
In the matter between
JULIA LE GRANGE								Applicant
and  
DR GERHARDDUS B VISSER 
T/A SKUKUZA MEDICAL PRACTICE				        First Respondent
KRUGER PARK DOCTORS					   Second Respondent
Heard: 	27 October 2022 and 6 December 2022
Delivered:	11 May 2023
Summary: This Court lacks jurisdiction to adjudicate a dispute for a dismissal for operational reasons which had not yet occurred – referral to CCMA was premature.
JUDGMENT

SWARTZ AJ

Introduction
[1]	The applicant’s claim is for unfair dismissal based on operational requirements. The referral was made in terms of section 191(5)(b)(ii) of the Labour Relations Act (LRA).
[2]	The applicant was employed by the first respondent as a medical doctor on 7 April 2016 and claims that she was dismissed by the first respondent for operational reasons on 31 March 2021.
[3]	The respondents had run a medical practice at Skukuza in the Kruger National Park up until 31 May 2021.
[4]	The trial ran on 27 October 2022. After hearing the evidence by the parties, this court raised a jurisdictional issue mero motu, on the point of whether there had in fact been a dismissal it all. Thereafter, the parties submitted written submissions on this jurisdictional point and the applicant requested a further oral hearing in order to lead evidence on this point. The applicant led further evidence on this point on 6 December 2022. 
Factual background
[5]	Since 2016, the first respondent had operated a medical practice at the Kruger National Park. The first respondent’s practice focused on providing medical services to members and patrons in the Kruger National Park.
[6]	The first respondent’s practice required the approval of the South African National Parks (SANPARKS) which is a body responsible for managing national parks within South Africa.
[7]	In 2020, the first respondent was awarded a six-month contract with SANPARKS, which was due to expire on 31 March 2021.
[8]	In October 2020, SANPARKS invited prospective bidders to submit bids for the services which were rendered by the first respondent. The respondent submitted a bid in response to the invitation. One of the criteria of this bid was the first respondent’s BBB-EE contribution. Accordingly, the first respondent partnered with an African female doctor, Dr Mthombeni in order to improve his prospects of securing another five-year contract with SANPARKS.
[9]	The applicant also submitted a separate tender for the same services through an entity called Kruger Park Medics (Pty) Ltd to SANPARKS.
[10]	On 26 February 2021, the first respondent was advised informally that his contract would be extended, however, he received no written confirmation from SANPARKS in this regard.
[11]	As a consequence of SANPARKS not yet awarding the first respondent the contract to continue his practice at the Kruger National Park, on 1 March 2021, the applicant as well as all other employees of the first respondent received letters of termination of employment which informed the employees that their employment contracts were to terminate on 31 March 2021. It is to be noted that both the applicant and the first respondent both testified that the issuing of such termination of employment letters was a precautionary measure in the event that SANPARKS does not award the contract to the respondents to continue their practice at the National Kruger Park.
[12]	By 31 March 2021, SANPARKS had still not awarded the new tender, but SANPARKS granted the first respondent a further interim contract in the name of the second respondent to continue the medical practice at Skukuza. Accordingly, all the employees were re-employed with immediate effect on 1 April 2021.
[13]	During this time, the applicant took leave during the first two weeks of April 2021.
Parties’ submissions
Applicant’s version
[14]	On 1 April 2021, the applicant sent the first respondent a WhatsApp text to which he responded. The WhatsApp texts exchanged between the parties stated the following:
Applicant:	‘Morning Nardus. I am taking my last notification of my employment status as being the later given to me on one March as I have had no communication to the contrary. Please can you just confirm this?’;
First respondent:	‘Hi Jules.
I wanted to meet with you yesterday to discuss this, though it got too busy and we never got around to it. I will be negotiating new contracts with all staff going forward, and will lockdown most everyone in the next week or so – I was hoping to also keep you on board. Due to SANSPARKS’ transformation mandate, and as set out in the conditions of the tender document, your position in Skukuza cannot continue, as the new doctor will commence working here late in April. I would propose having you manage the Kinross branch of the company, in order to keep you employed. This will commence beginning of May, as soon as the new doctor starts in Skukuza. I have also arranged locum cover for the first two weeks of April as you indicated you will be on leave until the 18th of the month. Let me know your thoughts – happy to discuss.’;
The applicant:	‘I found it a quiet day yesterday. Thank you for this communication’.
[15]	The applicant alleges that the respondents did not make any alternative offer of employment to her and that she was not re-employed like the other employees at the medical practice. The applicant contends that she was dismissed on 1 March 2021 and her last day of employment was 31 March 2021.
[16]	The applicant lived across the road from the practice and at no stage did the first respondent approach her and ask her to come back to work after 31 March 2021. The first respondent requested the applicant to vacate the home she was living in as it was the residence reserved for a medical doctor who practised at the first respondent’s medical practice. It was common cause that the applicant remained at this residence until 15 June 2021.
[17]	Two locum doctors worked at the respondents’ medical practice from April 2021 which the applicant viewed as an indication that she had been dismissed.
[18]	As the employment of Dr Mthombeni was imminent, the applicant’s services were therefore no longer required. The applicant was of the view that the letter dated 1 March 2021 was her dismissal letter.
[19]	It is the applicant’s case that she was not given the required section 189 letter and that she was not consulted with nor did she engage in any meaningful joint consensus-seeking process as prescribed by section 189 of the LRA.
[20]	The respondents continued to run the medical practice with all employees being re-employed except for the applicant. The offer to be employed at the first respondent’s Kinross branch after Dr Mthombeni was to be employed, was unreasonable considering it is approximately five hours away from where she resided. The applicant has young children and this offer was not practical for her and her family.
[21]	The applicant is claiming that she had been unfairly dismissed and is seeking 12 months’ compensation. Her monthly salary at the time was R65 800.00. 
[22]	In the applicant’s submissions in respect of the jurisdictional issue raised by this court, she contends that she was dismissed based on inter alia the following:
22.1	she was asked to vacate the residence in which was residing which was one of the benefits given to the applicant as part of her employment with the first respondent;
22.2	the first respondent, in his response to the statement of claim and in the pre-trial minute, did not dispute that the applicant was dismissed for operational reasons;
22.3	the first respondent confirmed that he had issued the applicant with a notice of termination of her employment on 1 March 2021;

22.4	the first respondent paid out of the applicant her accrued leave which would not have been paid out had there not been a dismissal. The first respondent also offered to pay severance pay to the applicant which he would not have offered had the applicant not been dismissed;
22.5	the applicant was not paid a salary after 31 March 2021 and had she been on leave she would have received her salary for April 2021. The applicant disputes that she was on leave from 1 April 2021 as she had already been dismissed;
22.6	at no time from 1 April 2021 did the first respondent engage with the applicant and ask her to return to work; and
22.7	the respondents in their statement of response confirmed that the applicant had been dismissed which was necessitated by the economic and operational constraints which prevailed at the National Kruger Park. The respondents on their own version confirmed that the applicant had been dismissed. 
[23]	The applicant referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 15 April 2021.
The respondents’ version
[24]	As the applicant was on leave for the first two weeks of April 2021, the first respondent employed the services of two locum doctors while the applicant was on leave. The applicant was due to return from leave on 18 April 2021.
[25]	Dr Mthombeni was going to replace the applicant at the end of April 2021 and therefore he offered the applicant an alternative position at the first respondent’s practice in Kinross.
[26]	On 3 June 2021, the applicant was paid her accumulated leave and on 10 May 2021, the first respondent offered the applicant compensation which equated to 3 months’ salary. The applicant declined this offer.
[27]	During May 2021, the first respondent was informed by SANPARKS that as a result of its BBB-EE partner, Dr Mthombeni, withdrawing her intention to participate in the running of the respondents’ medical practice, the respondents’ bid to extend the contract of the medical practice at Skukuza was unsuccessful and that the respondents would have to close the medical practice by 31 May 2021. The practice was therefore closed at the end of May 2021.
[28]	The applicant was not entitled to remain in her residence beyond the date of termination of her employment and the prolonged occupation by the applicant of this residence incurred costs for the first respondent in that he had to pay additional rent to SANPARKS.
[29]	The other employees continued their employment at the respondents’ medical practice until the practice closed on 31 May 2021.
[30]	In the respondents’ submissions in respect of the jurisdictional issue raised by this court they contend that the applicant was not dismissed based on inter alia the following:
30.1	the applicant, on her own version, testified that she never returned to work after 1 April 2021 despite all the other employees returning to the medical practice;
30.2	the applicant confirmed that the last communication she had with the first respondent was the 1 April 2021 WhatsApp communication and that at no stage did she engage with the first respondent in respect of this communication;
30.3	the first respondent arranged for two locum doctors to fill the applicant’s position while she was on leave. The locum doctors were to work up until 18 April 2021 after which the applicant was supposed to return to work;
30.4	the applicant on 15 April 2021, without any discussion or communication with the first respondent, referred an unfair dismissal disputed the CCMA which was three days prior to the first respondent expecting the applicant to return to work on 18 April 2021; and
30.5	the CCMA referral was premature and there was no dismissal of the applicant as of 31 March 2021. Accordingly, this court lacks jurisdiction to entertain the applicant’s claim.
Evaluation
[31]	Although the respondents in their papers admit the applicant was dismissed, this Court may raise a jurisdiction point mero moto. In the Constitutional Court judgment of Booi v Amathole District Municipality and others, it was stated: 
‘It is trite that courts are bound by the issues that the litigating parties raise. However, a court can raise an issue mero motu where (i) raising it is necessary to dispose of the matter, and (ii) it is in the interests of justice to do so, which depends on the circumstances at hand.’ [Footnotes omitted]
[32]	On 1 November 2022, this Court mero motu raised the question of whether this court has the necessary jurisdiction to determine the applicant’s claim given that the evidence presented did not sustain the applicant’s claim that she was dismissed. The parties were given an opportunity to address the court on this issue.
[33]	Both the applicant and the first respondent testified on 27 October 2022 that when the first respondent’s employees had a meeting and were handed their letters of termination dated 1 March 2021, they were told by the first respondent that such letters had only been given to them as SANPARKS had not yet renewed the first respondent’s contract. 
[34]	The applicant on 27 October 2022 testified that, despite the termination letter, she knew her job was safe. 
[35]	From the 1 April 2021 WhatsApp communications between the applicant and the first respondent, it is evident that:
35.1	the first respondent had employed the services of two locum	doctors until the applicant returned from her leave on 18 April 2021;
35.2	the applicant’s dismissal was an eventuality when the “new doctor” would commence working at the medical practice at the end of April 2021;
35.3	the first respondent offered the applicant an alternative position at his Kinross branch when the new doctor started working at the medical practice in Skukuza; and
35.4	the first respondent was hoping to continue the applicant’s employment but at his Kinross branch.
[36]	On 15 April 2021, being 3 days prior to the applicant returning from leave, the applicant referred an unfair dismissal claim to the CCMA.
[37]	Based on the evidence presented during the trial on 27 October 2022 as well as the applicant’s further evidence on 6 December 2022, I find that while the applicant’s dismissal for operational reasons was most certainly in the pipeline, the applicant was not dismissed on 31 March 2021.
[38]	Nothing turns on the applicant’s leave calculations attached to her last payslip. The fact of the matter is that the applicant’s leave pay was only paid on 3 June 2021, being two months after the applicant’s employment with the first respondent ended. 
[39]	Having regard to the WhatsApp communication between the parties on 1 April 2021, the employment relationship still subsisted at the date of the applicant’s referral to the CCMA as the first respondent had employed two locum doctors until the applicant returned to work on 18 April 2021. The probabilities in this regard are further fortified by the applicant’s own testimony during the trial that despite receiving a termination letter dated 1 March 2021, she knew her job was safe.

[40]	The applicant’s referral to the CCMA was premature in that the employment relationship still existed at the date of her referral. In Avgold - Target Division v Commission for Conciliation, Mediation and Arbitration and others, Basson J considered an evidentiary version before her which would have rendered a CCMA referral premature:
‘Returning to the point at issue: If the respondent's version is to be accepted (which I do not accept) that he was permanently employed, then the date of his dismissal will be determined with reference to s 190(1)(a) and (b) of the LRA which provides that the date of dismissal is the earlier of the date on which the contract of employment terminated or the date on which the employee left the services of the employer. It was common cause that the contract came to an end on 31 May 2003. It was also common cause that the respondent left the applicant in the middle of May 2003 which is some weeks after the dispute had been referred to the CCMA. On this version the dispute was therefore referred to the CCMA before the respondent was actually 'dismissed' as contemplated by the LRA. The referral to the CCMA was therefore clearly premature and the CCMA did not have jurisdiction to conciliate (and/or arbitrate) the dispute.’ [Own emphasis]
[41]	In CWIU v Darmag Industries (Pty) Ltd, the Labour Court held that:
‘No dismissal had been effected when the matter was referred for conciliation. Insofar as it may be argued that it was intended to later incorporate a dismissal dispute, the referral in respect of the dismissal for operational requirements was premature and a nullity.’
[42]	I find that at the time of the applicant’s referral to the CCMA on 15 April 2021, there was no dismissal yet. Accordingly, this Court has no jurisdiction to adjudicate the applicant’s unfair dismissal claim.

Costs
[43]	In terms of the provisions of section 162(1) of the LRA, which regulates orders for costs in this Court, I have a wide discretion when it comes to the issue of costs, having regard to the requirements of the law and fairness after taking into account all of the relevant facts and circumstances.
[44]	In exercising this judicial discretion, the Constitutional Court in Long v SA Breweries (Pty) Ltd and others reaffirmed the principle set in Zungu v Premier of the Province of KwaZulu-Natal and others with regard to costs in employment disputes and stated that “when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties”.
[45]	The respondents failed to raise the abovementioned jurisdictional point at the CCMA and in this court. Had the respondents taken this point at the CCMA, this may have been the end to the applicant’s claim and the parties’ costs as well as this court’s resources may have been saved. On the other hand and on any interpretation of the WhatsApp texts of 1 April 2021, it is clear that the applicant had not yet been dismissed and the unfair dismissal referral by the applicant to the CCMA was opportunistic and premature.
[46]	Taking account of all the above relevant facts and circumstances and having regard to the requirements of the law and fairness, I do not consider it appropriate to make a costs order, and I exercise my discretion as to costs accordingly.
[47]	In the circumstances, the following order is made:
Order
1.	The applicant’s claim is dismissed.
2.	There is no order as to costs. 

S Swartz
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicant:		S Sachs
Instructed by:		Bagraim Sachs

For the Respondent:	Z Schoeman
Instructed by:		Findlay & Niemeyer