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[2011] ZALAC 2
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Tigerls v Development Bank of Southern Africa and Others (J 2242/10B) [2011] ZALAC 2 (1 March 2011)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
BRAAMFONTEIN
CASE NO. J
2242/10B
In the matter
between:
SIMRON TIGERLS
.....................................................................................................
APPLICANT
and
DEVELOPMENT BANK
OF SOUTHERN AFRICA
….............................
First
RESPONDENT
PAUL BALOYI
….......................................................................................
Second
RESPONDENT
ADMASSU TADESSE
…..............................................................................
Third
RESPONDENT
LEONIE VAN
LELYVELD
…...................................................................
Fourth
RESPONDENT
DEREK LINDE
…...........................................................................................
Fifth
RESPONDENT
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
LAGRANGE J:
This is an urgent
application in which the applicant seeks the following relief:
"
Setting
aside the suspension of the applicants to your letter of the first
respondent dated 3 February 2011;
Directing the
respondents to resist and desist from victimising and intimidating
from exercising my right is in terms of the law
and place me in the
position of Financial Administrator;
Finding the first
to third respondents in wilful contempt of court for not complying
with an order issued by this honourable Court
on 7 December 2010 and
a case J2242/2010 B;
Sentence the
second and third respondents to imprisonment for such a period or any
other appropriate sentence deemed necessary by
the court;
Finding the fifth
respondent to the post to the answering affidavit in the case
J2242/2010B guilty of perjury, alternatively calling
him before the
honourable court to explain himself;
Order the second
to third respondents to pay the applicant’s costs of all other
steps taken pursuant to a court order of 7
December 2010, jointly and
severally on the scale of the journey and client;
Order the
registrar of the court to furnish a copy of this order to the Auditor
General for consideration of recovering all costs
payable to the
applicant from the second and third respondents and/or take
appropriate steps which he may deem fit in terms of
the
Public
Finance Management Act 1999
and the Treasury Regulations;
Punitive costs
against the respondents;...
" (sic)
This application
flows from an order granted on 7 December 2010. The application was
initially set down for 10 February 2011,
but was postponed by
agreement to allow the applicant to file a replying affidavit.
Background
The applicant was
employed as an Audio Video Graphics editor in the Communication and
Marketing Unit of the respondent. He remains
currently employed by
the respondent and has worked for the bank for 23 years. Currently
he does not hold a specific job, which
is the issue that appears to
lie at the heart of this application.
The application
which was set down for hearing on 7 December 2010, which was also
brought on an urgent basis by the applicant,
sought slightly
different relief. In that application he applied for an order
against the bank to: prevent it from rendering
him redundant;
ordering the bank to provide him with a revised organisational
structure that included him in the "restructured
work stream",
and directing the bank to furnish him with a copy of a job
evaluation report in respect of himself.
What lay behind
that application was the restructuring of the department in which he
was working. The applicant claims not to
have opposed the
restructuring as such but merely sought clarity on what the new
structure would entail. It was only sometime
in mid-October 2010
that he realised that there was no position for him in the revised
structure and he was asked what position
he would like to hold in
the respondent. He was clearly concerned that he might be placed in
a position for which he was ill-equipped
which might lead to his
eventual dismissal for poor performance.
However, by the
time the matter came before court in December 2010, the parties had
reached an understanding and the application
was withdrawn save in
respect of one prayer. The court recorded this arrangement.
According to the applicant, he had accepted
a position as a
Financial Administrator, and this agreement was made an order court,
but the bank had failed to place him in
the position even though
three months had elapsed since the court order was granted. He
claims that when he made an enquiry about
this he was suspended with
immediate effect, and attributes the reason for his suspension to
his enquiry.
The bank agrees
that the applicant was offered the position of Financial
Administrator on 2 November 2010 and that he communicated
his
acceptance of the appointment on 28 November 2010. He only accepted
the offer nearly three weeks after he had launched his
first urgent
application on 5 November 2010. However, sometime between 02
November 2010 and 7 December 2010 the position of Financial
Administrator was filled by the Finance department. According to the
bank, the fifth respondent, Mr D Linde, who is the chief
of Legal
Services, was present at the court hearing on 7 December 2010 when
the understanding of the parties was recorded by
the court. Mr Linde
claims to have had no knowledge at the time that the post of
Financial Administrator had been filled, and
would have raised it
had he known that this was the case.
What the court
order of 7 December 2010 actually stated is:
"
Having read
the documents in having considered the matter:
It Is Ordered
That:
1. The parties
have agreed that in view of the applicant having accepted an
alternative position and all in the notice of motion
are abandoned
save for prayer 4 in relation to which the first respondent will
furnish a copy of the report referred to in prayer
4 to the applicant
on 08th December 2010.
2. The issue of
costs occasioned by the application is to be argued in the normal
course and either party may enroll the matter
for this purpose.
"
Much of the relief
sought by the applicant relates to his claim that the bank has
failed to give effect to the court order. The
bank concedes that it
did not place the applicant in the Financial Administrator post, but
denies that this was in breach of
the court order because the order
was not framed in the form which the applicant claims. The
respondent points out that on 24
January 2011 it did make the
position of Co-ordinator: Data and Information Management available
to the applicant as an alternative.
The bank contends that this
position was in fact more suitable than the one the applicant was
previously offered and did not
entail any loss of earnings. To date
the applicant had not indicated whether he would accept the
alternative position offered
or not.
The second part of
the relief the applicant seeks relates to his suspension on 3
February 2011. The applicant believes that his
suspension was an
attempt to silence him and was unlawful and un-procedural. He does
not elaborate on either of these grounds,
but further claims that he
is being victimised for exercising his rights by querying the bank’s
failure to appoint him
as Financial Administrator, contrary to the
court order of 7 December 2010. As such, he believes that his
suspension is an automatically
unfair labour practice.
On his own account,
the applicant was called to a meeting just after 15:00 hours on 03
February 2011 with the Group Chief Operating
Officer and Acting
Group Executive of Human Resources (‘the COO’), who also
deposed to the answering affidavit on
behalf of the respondent. He
was given a letter and asked to give reasons why he should not be
suspended by 16h00 hours. When
he complained that the notice was too
short he was given until 18h00 hours to respond.
The applicant
claims that he explained why he should not be suspended when the
meeting resumed at 18h00, but the COO did not consider
his reasons
and gave him a suspension letter. Before suspending him the COO
demanded that he should, within 48 hours, give information
to
certain bank officials regarding his claims of alleged corruption at
the bank. However, he would not accede to this demand
because of the
"current problems" he was experiencing as a consequence of
the conduct of some of the bank's officials.
The COO claims that
the representations made by the applicant regarding his pending
suspension included the following: the fact
that he had made
disclosures during a previous disciplinary enquiry in November 2009;
nobody at the bank had apologised to him
after he'd been found not
guilty; he was unfairly subjected to the previous enquiry because of
the information he had against
the bank which he had raised, and he
was being suspended because of the civil action which he had brought
against the bank for
damages of R 15 million because he claims that
disciplinary action should never have been instituted against him.
The COO also
alleges that the applicant advised her he was not
obliged to provide her with information he intended using in his
civil case.
The COO further mentions that before she made a decision
to suspend the applicant she was presented with a letter prepared by
the applicant's attorneys of records which she had to consider
first.
The COO justified
the decision to suspend the applicant on the basis that there were
serious allegations of misconduct levelled
against him which were
the subject of investigation and it was not in either party's
interest for him to be in the workplace
while the matter was being
investigated. The COO also took into account the applicant’s
view that he was entitled to withhold
information.
The bank claims
that the applicant’s suspension is unrelated to the
difficulties of placing him in an alternative position,
but is a
direct consequence of his alleged approach to a number of the bank’s
employees, including the COO herself, whom
he advised that he had
information regarding alleged corruption and mismanagement at the
bank which he intended to share with
various individuals and the
media. An investigation by the Forensic Investigation department of
the respondent was initiated
and statements were taken. A
recommendation was made by the department to instruct the applicant
to provide the necessary evidence
to support his allegations. On 01
February 2011, this culminated in a letter being sent to the
applicant, in which he was advised
to make disclosure of the
specific details of alleged corruption and mismanagement to one of a
number of specified official channels
for doing so.
The applicant
replied through his attorneys, disputing that he had made any such
approaches to other senior staff about any corruption
and
mismanagement that extended beyond matters disclosed in his High
Court litigation. Accordingly, the applicant argued that
he could
not assist with the instruction from the respondent. His attorneys
further advised: "
We are further instructed the information
that our client was in possession of, was handed to his attorneys in
preparation for
the case pending before the High Court and is thus,
privileged
."
The respondent
contends that far from being privileged the applicant is in fact
under a common law and statutory obligation to
provide such
information. The applicant’s refusal to disclose it in
accordance with the mechanisms available to him to
make a protected
disclosure, led the bank to infer that he was not acting in good
faith.
Analysis
The alleged
failure of the bank to comply with the court order
In essence, the
applicant claims that the court ordered the respondent to appoint
him to the position of Financial Administrator.
However, the court
order simply records that the parties had reached agreement on him
accepting an alternative position and that
all other prayers of
relief had been abandoned, save for one. There is nothing before me
that indicates the court was even made
aware of the detailed
agreement reached between the parties.
In any event, there
is nothing in the wording of the order which would provide a
foundation for an application for contempt of
court: there is no
clear obligation imposed on the respondent by the order, which the
applicants can say unequivocally that the
respondent breached, by
failing to appoint him to the specific position of Financial
Administrator. What's the applicant could
have done, but chose not
to, was to try and enforce the underlying agreement which motivated
him to withdraw his application.
Attempting to use the mechanism of
a contempt application given the content of the court order is, in
the circumstances, inappropriate
and cannot succeed.
Had the order been
worded differently, and included an express provision making the
agreement itself an order of court, the position
might have been
different.
Before moving onto
the applicant’s other complaint, I should mention that on the
affidavits before me, no case of perjury
against the fifth
respondent was made out, in so far as that is a matter the court
could consider. The evidence does not support
a claim that he
knowingly misrepresented the availability of the position of the
Financial Administrator.
Was the
applicant’s suspension automatically unfair?
If one has regard
to the sequence of events set out in the affidavits, it would appear
that in mid-January 2011, the respondent
was engaged in taking steps
to further investigate the applicant’s alleged approaches to
senior members of staff intimating
that he had information about
corruption and mismanagement at the bank.
It was only on 20
January 2011 that the applicant met with the COO and discussed,
amongst other things, the issue of his placement
in the bank. This
much is common cause from the letters exchanged between the
applicants and the COO on 24 January 2011. Where
the correspondence
differs markedly is that the COO claims the applicant said that the
purpose of the meeting was to request
permission to approach the
Chairman of the bank and Minister to make them aware of certain
allegations of fraud and corruption,
which the applicant was not
prepared to share with the management of the bank itself. The
applicant never disputed the COO’s
claim in any subsequent
communications with the bank. Given the alacrity with which the
applicant appears to contest anything
he does not agree with, his
failure to dispute this suggests he accepted it was true.
There is no
‘automatically unfair labour practice’ in the LRA. In
truth it seems the applicant is alleging that his
right not to be
discriminated against for pursuing his rights has been infringed on
account of his suspension. Assuming for the
time being that his
prosecution of his grievance relating to his placement falls within
the rights conferred by the Act, as required
by sub-sections 5(1)
and (3) of the Act, in order to succeed the applicant must prove
that facts of the impugned act complained
and then the other party
must establish that the action did not infringe the provision.
1
From the evidence
available, it is difficult to find a basis for holding that the
applicant’s complaints about his placement
prompted the
investigation conducted by the respondent’s Forensic
Department. Moreover, his attitude towards making available
the
incriminating information of corruption and mismanagement at the
bank, which he supposedly possesses does indeed give the
impression
that his own motives are not
bona fide
, and that the
respondent might well have grounds for taking action against him for
not making use of the appropriate channels
to make a protected
disclosure of the information he has. If he is obliged to provide
such information under the
Public Finance Management Act, he
cannot
hold it on the basis that he has communicated to his attorneys in
preparation for other litigation.
In any event, as he
seems to suggest by alluding to his discovery affidavits in the High
Court matter, if the information he has
is evidence that might be
used in the course of those proceedings, then it is a mystery why he
would not simply provide his employer
with the information it is
entitled to.
On the information
available I am not satisfied that the applicant has demonstrated
that the reason for his suspension is in some
way a consequence of
him pressing the respondent on the question of his placement, which
he must do to establish an infringement
of his rights under
section
5.
It is more clearly related to the pending disciplinary action
about his alleged threats to report on corruption and mismanagement,
which he is reluctant to substantiate, and the respondent appears to
have good cause for pursuing disciplinary steps against
him.
Other grounds
raised by the applicant in support of his bid to set aside his
suspension relate to the kind of prejudice which
every person who is
suspended on pay suffers. Even if he had established that a right
had been infringed when he was suspended,
nothing distinguishes his
position in regard to the prejudice he is suffering to make a case
for urgent relief compelling. I
have taken note of the applicant’s
allegations about his depressed condition, but in view of the
constant litigation he
has been involved in with the respondent, and
continues to be involved in, it is difficult to see how revoking his
suspension
alone would resolve matters. I am also mindful in this
regard of the dictum cited in
Jonker v Okhahlamba Municipality
& others
[2005] ZALC 22
;
(2005) 6 BLLR 564
(LC)
at 570,[32]-[33]
in which the court cautioned against identifying one factor as the
sole cause of an employee’s medical
condition. Moreover, it
cannot be that an employer is denied the right to suspend an
employee in appropriate circumstances, simply
because that might
induce a degree of stress or depression in the employee. Many
circumstances in life induce stress, and that
is indeed regrettable,
but the stressful consequences of otherwise legal acts will not, as
a matter of course, support a cause
of legal action.
Conclusion
On the basis of the
above, I am satisfied that the applicant has failed to establish
that he has demonstrated a
prima facie
right, though open to
doubt, to have his suspension set aside, let alone a clear right,
which must be established for final relief.
I also find that the
applicant is not entitled to relief in respect of the alleged
failure of the bank to comply with the court
order of 7 December
2010, and he has alternative remedies to enforcing any agreement
concluded with the bank in respect of his
appointment to the post of
a Financial Administrator.
The respondent
asked for a punitive cost award against the applicant on the basis
that his application was vexatious and frivolous.
I would agree that
there is an element of vexation in some of the more extreme relief
he sought. However, because I believe the
applicant might have had a
bona fide
belief that the court order of 7 December 2010
entitled him, by means of contempt proceedings, to enforce the
underlying understanding
that led him to withdraw the primary relief
he was seeking. Considering also that the parties are still in an
employment relationship,
even though it is one that is evidently
very fraught, I decline to make a cost order on this occasion.
Order
The application is
dismissed.
No order is made as
to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing : 24 February 2011
Date
of judgment: 01 March 2011
Appearances:
For
the Applicant: M A Chauke instructed by Mokoena Attorneys
For
the Respondent: Mr G Malan instructed by Edward Nathan Sonnenbergs
1
LRA,
s 10