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[2012] ZALAC 8
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MEC for Education, North West Provincial Government v Gradwell (JA58/10) [2012] ZALAC 8; [2012] 8 BLLR 747 (LAC); (2012) 33 ILJ 2033 (LAC) (25 April 2012)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Reportable
Of interest to other judges
Case no: JA 58/10
In the matter between:
MEMBER OF THE EXECUTIVE
COUNCIL FOR EDUCATION, NORTH
WEST PROVINCIAL GOVERNMENT
…....................................................................
Appellant
and
ERROL RANDAL GRADWELL
….........................................................................
Respondent
Heard: 06 March 2012
Delivered: 25 April 2012
CORAM:
WAGLAY
DJP, MOLEMELA
AJA and MURPHY AJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MURPHY AJA
[1] On 27 July 2010, the respondent
made an urgent application to the Labour Court in terms of section
158(1)(a) of the Labour Relations
Act
1
(“the LRA”) challenging
his suspension from employment as the acting head of the Department
of Education in the North
West Provincial Government. Section
158(1)(a) provides that the Labour Court may make any appropriate
order including, as relevant
in the present application, the grant of
urgent interim relief, an interdict and a declaratory order. On 30
July 2010, van Niekerk
J
granted
both a final order declaring the respondent’s suspension by the
appellant unlawful and an interdict prohibiting the
Premier of the
North West Province from filling the post of head of department of
the Department of Education in the province unless
and until the
respondent was afforded an opportunity to be interviewed for the
post. This is an appeal against his judgment.
[2] The appellant, the Member of the
Executive Council for Education, North West Provincial Government,
(“the MEC”)
was the second respondent
a
quo
. The first respondent
a
quo
, the Premier, is not
joined in the appeal. The respondent, Mr Errol Gradwell, was a Chief
Director in the department, and served
as acting head from October
2009 until his suspension by the MEC on 15 July 2010.
[3] The respondent has not filed any
opposing papers in the appeal and made no appearance at the hearing.
As a result, the appeal
is unopposed.
[4] The respondent’s suspension
was a consequence of claims of serious wrongdoing in the department
raised by the Auditor-General
in June 2010. On 13 July 2010, the MEC
addressed a letter to the respondent informing him that he had
received information alleging
financial misconduct on his part in
relation to the Bessie Mpelegele Ngwane Care Centre in Rustenburg.
The allegations, set out
in some details in the letter, relate to the
suspected unlawful conversion of the privately owned Centre into an
“ordinary
public school”, (which in terms of the
governing legislation would have resulted in the provincial
government assuming financial
responsibility for the Centre);
unauthorised expenditure in the form of a transfer of funds from the
national nutritional program
to fund the Centre; a lack of proper
accountability in respect of funds paid to the Centre during 2009 and
contraventions of the
Public Management Finance Act (“the
PFMA”). After setting out the allegations, the MEC stated that
the information
was serious enough to warrant an immediate
investigation into possible acts of misconduct by the respondent. He
then concluded:
‘
In
an effort to accord you the benefits of being heard before a decision
to suspend you from official duty is taken, you are hereby
requested
to show cause why the Department should not invoke the provisions of
clause 2.7(2)(a) of Chapter 7 of the SMS handbook
2003 against you.’
The respondent was given until 10h00
on 14 July 2010 to furnish written representations.
[5] The “SMS Handbook”
referred to in the letter is the “Senior Management Service
Handbook” which applies
to senior management in the public
service. The terms and conditions of the senior management of the
public service, from the level
of Director upwards, are not regulated
by collective bargaining, but are determined by the Minister for the
Department of Public
Service and Administration by means of
subordinate legislation issued in terms of the Public Service
Regulations 2001, which determinations
are referred to and known as
the “SMS Handbook”. The ministerial determinations in
respect of misconduct proceedings
are contained in Chapters 7 and 8
of the SMS Handbook. Paragraph 18.1 of the SMS Handbook provides that
the suspension of Heads
of Department must be dealt with in terms of
Chapter 7 of the SMS Handbook, including paragraph 2.7(2) which
provides as follows:
‘
(2)
Precautionary
suspension or transfer
(a)
The employer may suspend or transfer a member on full pay if -
the
member is alleged to have committed a serious offence; and
the
employer believes that the presence of a member at the workplace
might jeopardise any investigation into the alleged misconduct,
or
endanger the well-being or safety of any person or State property.
(b)
A suspension or transfer of this kind is a precautionary measure that
does not constitute a judgment, and must be on full pay.
(c)
If a member is suspended or transferred as a precautionary measure,
the employer must hold a disciplinary hearing within 60
days. The
Chair of the hearing must then decide on any further postponement.’
Paragraph 18.2 of the SMS Handbook,
which applies specifically to the suspension of heads of department,
repeats verbatim the provisions
of paragraph 2.7(2)(a). It is common
cause that the provisions of paragraph 2.7(2) are applicable in this
case.
[6] The respondent replied to the
MEC’s letter on 14 February 2010, confirming that he had
received the MEC’s letter
the previous evening. He admitted his
involvement with the Centre, but maintained that it had been
converted to an ordinary public
school with the authorisation of the
Chief Director: Education Support Services and the previous head of
department. With regard
to the allegations of unauthorised
expenditure, improper accounting and contravention of the PFMA, he
requested to be provided
with more information in order to be
afforded the opportunity to “respond more meaningfully”.
He further complained
that he had been afforded insufficient time to
respond to the charges against him.
[7] The MEC responded on the same day
as follows:
‘
I
have considered your response to my letter dated 13 July 2010 and
served on you yesterday regarding the Bessie Mpelegele Ngwane
Care
Centre.
The
purpose of the said correspondence from me was to request you to give
me reasons as to why I should not suspend you from duty
pending
investigations into allegations made against you relating to the
Bessie Mpelegele Ngwane Care Centre. The purpose was not
to list
possible charges against you as the allegations must still be
investigated. You were only requested to provide this office
with any
information at your disposal regarding this Centre and your
involvement in the said Centre. The listed questions were
to guide
you as to the scope of your response.
Please
note that a decision to investigate has not yet been finalised, but
this office awaits your further input to consider whether
grounds
exist to suspend you on the basis of the allegations made and/or to
further investigate the allegations received by this
office.
In
light of the above, I have decided to provide you with an extension
of time. You are therefore requested to provide me with any
further
reasons why I should not place you on precautionary suspension
pending investigations into the allegations made as set
out in the
initial letter. Your response must reach me on/before 16:30 today.’
[8] The respondent replied to this
saying that he would be unlikely to respond before Monday 19 July
2010 and requested permission
to travel to Rustenburg on 15 July 2010
so that he could “engage with the documentation alluded to”
in order to prepare
a response.
[9] The respondent was suspended by
the MEC on 15 July 2010 by way of a letter of suspension. The MEC set
out the history of correspondence
regarding the accusations of
serious misconduct and informed the respondent that he had duly
considered the representations which
the respondent had made in his
letter of 14 July 2010. He explained that since he had decided to
commission a thorough and immediate
investigation into the
allegations of misconduct, and believed the respondent was in a
position to interfere with witnesses and
documentary evidence, he had
decided to invoke the provisions of paragraph 2.7(2) of the SMS
Handbook. He notified the respondent
that the precautionary
suspension would be for a maximum period of 60 days and would be with
full pay and benefits.
[10] The application for urgent relief
was filed on 26 July 2010 and, as already mentioned, was heard on 27
July 2010. In his founding
affidavit, the respondent contended that
his suspension was motivated
inter alia
by the “improper
motive of destabilising and removing me from contention for the post
of Head of Department”. He explained
that he was acting in the
post and had been short-listed to be interviewed on 20 July 2010. In
light of his suspension, the respondent
had sought through his
attorneys to obtain an undertaking to be interviewed at a later date.
This was refused but it was communicated
to the respondent that he
should attend the interview on 20 July 2010. The respondent did not
attend the interview. He claimed
that there was a politically
favoured candidate and that the “unfounded investigation
allegations” for his suspension
were “simply a ploy”
to frustrate his preparation for the interview.
[11] As regard the legal basis for the
suspension, the respondent submitted that there was no justifiable
reason to believe that
he had engaged in serious misconduct. He
maintained that the allegations were too wide and that he was unable
to deal with them
meaningfully. He did not deal directly with the
allegations that he had unlawfully or improperly converted the Centre
to an ordinary
public school and transferred funds to it from the
national nutritional program without the necessary authority. He
submitted that
there was no objective reason to deny him access to
the workplace, and denied that he had much contact with his
subordinates and
contended that his right to integrity and reputation
outweighed any risk that he might interfere with the investigation.
He claimed
(puzzlingly, in my view, in light of the contents of the
letter of suspension) that the MEC had not made a decision to
institute
an investigation and thus that there was no basis for his
suspension on that score as well. And finally, he asserted that there
had not been compliance with the principle of
audi alteram partem
in that the allegations against him had not been sufficiently
particularised and he was denied sufficient time to respond to them.
[12] In support of his request for an
order interdicting the final appointment of a new head of department,
the respondent made
out the following case in paragraphs 30-32 of the
founding affidavit:
‘
30.
I have applied for the post and already have been shortlisted and
invited to an interview. This happened before my suspension.
However,
I have been deprived the opportunity to prepare for my interview.
This deprivation is prejudicial to my chances meaningfully
to
participate in the job interview. Firstly, I have been frustrated and
preoccupied with a “suspension”. Secondly,
I have been
deprived of access to all the tools that would have assisted me in my
preparation for the interview. Thirdly, I am
psychologically impaired
to perform to my optimum ability due to both suspension and seizure
of my tools. Fourthly, I reasonably
believe that my unlawful
suspension would unfairly stigmatise and prejudice my candidature in
the eyes of the interviewing panel.
31.
The First or Second Respondent would not be prejudiced in affording
me an opportunity to prepare myself for the interview. I
therefore
submit that I ought to be given a chance to be interviewed after
having properly prepared for the interview, same as
others. While it
is undeniably so that practical steps would have to be taken to
reconvene the interviewing panel, weighing against
my constitutional
right to fair labour practices, the balance of convenience tilts in
my favour.
32.
Should the process of appointment continue unabated, then the rights
of the appointee will be severely affected by any subsequent
finding
that I was entitled to an interview. I would then suffer irreparable
harm if it was held that the new appointee’s
rights entitle him
or her to remain in the position. No alternative remedy could
vindicate my rights.”
[13] In response to the respondent’s
various averments, the MEC comprehensively set out the background and
reasons for the
suspension in his answering affidavit.
[14] The previous Head of Department,
to whom the respondent had reported, was suspended on 2 October 2009
on suspicion of fraud,
corruption and financial irregularities and
subsequently resigned. Because no suspicion of misconduct against the
respondent had
as yet surfaced, the respondent, being Chief Director,
was appointed as Acting Head of Department on 5 October 2009.
[15] In June 2010, the Auditor-General
released a communication in respect of the department which contained
audit queries in respect
of financial transactions of the department.
Staff of the Auditor-General subsequently met with the MEC and
relayed various concerns,
particularly regarding the developments at
the Bessie Mpelegele Ngwena Care Centre.
[16] As Chief Director, the respondent
was responsible for the region in which the Centre fell. The Centre
was formerly a privately
owned Centre caring for severely
intellectually disabled children and young adults, and was registered
with the Department of Social
Development. No qualified educators
(teachers) are employed by the Centre. There is another publically
funded school in the area
which caters for intellectually disabled
children. Officials in the department informed the MEC that the
respondent had requested
them to sign documentation registering the
Centre as a public ordinary school after he brought them under the
impression that the
Centre was to be registered as a “privately
owned special school”. The Centre was issued with a
registration certificate
on 6 April 2009 registering it as a public
ordinary school, when it is in fact not one and did not qualify for
registration as
such. It is not in fact a school at all and provides
very basic educational services. The registration form, completed on
20 April
2009 after the registration certificate was issued, records
that the respondent is the manager of the institution.
[17] Besides the fact that the
conversion was done improperly, the possibility exists that there
have been significant accounting
irregularities and that the
respondent stood personally to gain financially from the development
of the Centre. In 2009, a large
mining company, Anglo Platinum Ltd,
donated an amount of R7,2 million for the construction of a new
building for the Centre on
land made available by the Rustenburg
Municipality. The budgeted building cost was initially set at the
amount of the donation,
R7.2 million. Later, the respondent attempted
to persuade the former Head of Department to advance an additional
R9,7 million from
department funds to finance a projected shortfall
in the building costs. It is not clear from the papers whether any
money was
in fact transferred pursuant to this endeavour. However,
R1.2 million of unauthorised expenditure was incurred in the form of
funds
diverted from the nutritional program to the Centre. A further
amount of R704 865,50 was paid to the Centre in 2010-2011 for
operating
expenses. Neither of these amounts is reflected in the
income statement of the Centre’s audited financial statements.
The
only income indicated in the financial statements is an amount of
R297 839, being contributions received from parents. In other
words,
R2 million (at least) of the department’s money, earmarked for
destitute children, is not accounted for and may have
gone missing.
The respondent was accountable as a matter of law for the payments
made to the Centre.
[18] Added to that, according to the
MEC, the respondent has held directorships in various property
development, building and construction
entities which perhaps were
intended to benefit from construction work on the building. For that
reason the ambit of the investigation
has been extended to look into
the possibility of nepotism and personal gain in addition to the
various other financial transgressions
discovered by the
Auditor-General.
[19] Taking account of this
information, the MEC formed the preliminary opinion that there were
serious allegations of misconduct
against the respondent relating to
a lack of accountability in respect of funds paid to the Centre, the
unlawful conversion of
the Centre into a public school, unauthorised
and wasteful expenditure, and the possibility of inappropriate
personal financial
gain by the respondent. Likewise, because the
respondent had virtually unlimited authority over his subordinates
and access to
all the documentation in relation to the department’s
dealings with the Centre, and considering that the respondent had
been
accused of abusing his managerial authority by pressurising
subordinates to sign documents, the MEC believed that the
respondent’s
continued presence at the workplace might
jeopardise the process of investigation. By then, the MEC had
appointed a reputable firm
of forensic investigators to conduct the
investigation which was scheduled to commence on 19 July 2010. That
too explained his
reluctance to extend the time afforded to the
respondent to make representations. He sought to strike a balance
between affording
the respondent an opportunity to respond and
protecting the interests of the department by preventing the
respondent from compromising
the investigation and negating the
purpose of the suspension.
[20] In his replying affidavit, the
respondent declined to canvass the merits of the allegations against
him. Instead, he maintained
that “the voluminous response”
of the appellant had “missed the boat as to what this
application is about (or
not about)”. He remained adamant,
curiously, in light of the information disclosed by the MEC, that it
was impossible to
reply to the charges of misconduct because the
appellant had refused to furnish him with relevant particulars. He
submitted that
the application had to be determined on three grounds;
namely: whether the appellant possessed the legal authority to
suspend him
(this ground appears to have been abandoned later);
whether the appellant had afforded him a reasonable opportunity to be
heard
before taking the decision to suspend him; and, thirdly,
whether the refusal of his request for further details regarding the
allegations
of misconduct was justifiably refused by the appellant.
He argued that the suspension operated “automatically” to
infringe
his fundamental rights to human dignity and reputation and
contravened his “exceptional right” to compete for an
employment
opportunity.
[21] Much of the replying affidavit
deals with the question of authority and the limited time within
which to respond to the allegations.
As just intimated, the
respondent opted to make no averments countering any of the specific
allegations regarding unauthorised
or wasteful expenditure and the
failure to put accounting controls in place. Importantly, he did not
deny, or even respond to,
the charge that he had unlawfully or
inappropriately diverted funds earmarked for the nutritional program.
Moreover, although he
stated that he had resigned certain
directorships before accepting the acting position, the respondent
did not identify the companies
involved, and, more notably, did not
contest the allegation that he was involved in a construction company
that stood to benefit
from the expansion and development of the
Centre.
[22] In his reasons for judgment,
handed down some days after he upheld the application for urgent
relief, the learned judge
a quo
observed that paragraph 2.7(2)
of the SMS Handbook had to be read in conjunction with the principles
applied by the Labour Court
in relation to such suspensions,
specifically:-
the employer should have reason to
believe,
prima facie
at least, that the employee has engaged
in serious misconduct;
there must be an objectively
justifiable reason to deny the employee access to the workplace
based on the integrity of any pending
investigation into the
misconduct; and
the employee should be afforded the
opportunity to state a case before the employer makes a final
decision to suspend.
[23] The judge
a quo
held that
the respondent’s suspension was unlawful, and declared it to be
so, essentially for two reasons. Firstly, he felt
there was no
objectively justifiable reason to deny the applicant access to the
workplace; and secondly he was of the opinion that
the respondent had
not been afforded a proper right to be heard prior to his suspension.
Having reached those conclusions, the
judge deemed it unnecessary to
consider whether the employer had a justifiable reason to believe
that the employee had engaged
in serious misconduct. In paragraph 10
of his reasons he stated:
‘
In
view of the conclusions to which I have come, it is not necessary for
me to consider whether the allegations of misconduct made
against the
applicant have any reasonable basis - it is in any event not possible
to do so on the papers before me not least because
the applicant was
denied the opportunity to make full representations prior to his
suspension.’
In my respectful opinion, for reasons
which will appear presently, the learned judge erred on both the law
and the facts and followed
an incorrect approach.
[24] The judge’s conclusion that
the MEC did not have ‘an objectively justifiable reason to deny
the employee access
to the workplace’ was predicated upon his
findings that before such a course of conduct could be justifiable
the MEC had
to have taken a decision to conduct an investigation, and
that in this instance the MEC had not done so. The requirement of
paragraph
2.7(2) is that the employer should believe (reasonably)
that the presence of the employee ‘might jeopardise any
investigation
…’ The judge was of the opinion that if no
decision to investigate is taken before imposing a suspension, then a
condition
precedent to the lawful exercise of the power has not been
fulfilled. As he put it: ‘there ought at least to be a decision
to conduct the investigation before suspension is contemplated.’
He found that the MEC decided to suspend the respondent
before he
took a decision to investigate and hence that the suspension was
unlawful. The conclusion, in my view, sets the standard
too high and
is in any event factually erroneous.
[25] The learned judge based his
factual finding on a sentence in the MEC’s letter to the
respondent dated 14 July 2010 which
reads:
‘
Please
note that a decision to investigate has not yet been finalized, but
this office awaits your further input to consider whether
grounds
exist to suspend you on the basis of the allegations made and/or to
further investigate the allegations received by this
office.’
This statement cannot alone serve as
categorical proof that the condition precedent had not been met. The
wording of paragraph 2.7(2)
does not unequivocally require the
employer to take a conclusive decision to investigate before the
power can be lawfully exercised.
It is enough that any (current or
future) investigation might be jeopardised. The use of the word “any”
intimates that
if an investigation is within contemplation the
precondition will be met. The statement in the letter of 14 July 2010
makes it
abundantly plain that such an investigation was being
contemplated, but that due process required the respondent’s
input
before a final decision was taken.
[26] But even were a decision to
investigate a prerequisite to the lawful exercise of the power to
suspend, the MEC averred, and
the available evidence confirms, that
such a decision was in fact taken prior to the suspension. In the
letter of suspension dated
and delivered to the respondent on 15 July
2010, the MEC stated:
‘
Consequently
I have decided to commission a thorough and immediate investigation
into the allegations of misconduct which are levelled
against you in
your capacity as Chief Director and acting Superintendant-General
pertaining to the registration and funding of
the Bessie Mpelegele
Ngwane Care Centre, and all acts and omissions ancillary thereto. In
an effort to allow the investigation
process to continue without any
real and/or perceived hindrance and/or influence on your part and on
the basis of the seriousness
of the allegations against you, I have
decided to invoke the provisions of Clause 2.7(2)(a) of Chapter 7 of
the SMS Handbook …’
[27] In the result, the learned
judge’s supposition that the suspension was unlawful, because
there was no objectively justifiable
reason to deny the applicant
access to the workplace when no investigation was under way, was both
legally and factually incorrect.
[28] Aside from that, the judge erred
in his approach to determining the lawfulness of a suspension in
terms of paragraph 2.7(2).
His choice not to consider the serious
allegations against the respondent was mistaken. As a general rule, a
decision regarding
the lawfulness of a suspension in terms of
paragraph 2.7(2) will call for a preliminary finding on the
allegations of serious misconduct
as well as a determination of the
reasonableness of the employer’s belief that the continued
presence of the employee at
the workplace might jeopardize any
investigation etc. The justifiability of a suspension invariably
rests on the existence of a
prima facie
reason to believe that
the employee committed serious misconduct. Only once that has been
established objectively, will it be possible
to meaningfully engage
in the second line of enquiry (the justifiability of denying access)
with the requisite measure of conviction.
The nature, likelihood and
the seriousness of the alleged misconduct will always be relevant
considerations in deciding whether
the denial of access to the
workplace was justifiable.
[29] The judge
a
quo
accordingly erred in
declining to adjudicate on the papers whether the MEC had a
justifiable reason to believe that the respondent
had engaged in
serious misconduct. It was possible to do so on the papers; and
whether the respondent was denied a hearing prior
to suspension had
no bearing on his ability to deal with the damning allegations made
against him in the answering affidavits.
The matter could and should
have been resolved in accordance with the principles laid down in
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
2
.
Where disputes of fact arise on the affidavits in motion proceedings,
a final order (be it a declarator or an interdict) may be
granted
provided those facts averred in the applicant’s affidavits that
have been admitted by the respondent, together with
the facts alleged
by the respondent (excluding those that are untenable or patently
un-creditworthy), justify such an order. In
other words, relief
should be granted only if the common cause facts and the tenable
version of the respondent form an adequate
basis for the remedy.
[30] In the present case, the MEC’s
version sets out a detailed and compelling
prima
facie
case of serious
misconduct against the respondent. As discussed earlier, most of the
allegations were not even canvassed, never
mind denied, by the
respondent in reply. The reasons he advanced for not dealing with
them are at best spurious, if not misleading.
By the same token, the
case made by the MEC that the respondent’s presence at the
workplace ‘
might
jeopardize any investigation’
was both logical and justifiable in light of the seriousness of the
alleged misconduct. The
complaint against the respondent includes the
accusation that the respondent brought pressure to bear on his
subordinates to act
inappropriately and the assertion that he would
be in a position to do so again were he to remain in the post.
[31] In the final analysis, therefore,
the outcome on the evidence presented is that the conditions
precedent to the lawful exercise
of the power of suspension (a
prima
facie
case of serious misconduct and a risk of the investigation
being jeopardized) were indeed fulfilled. The only remaining question
in relation to the legality of the suspension is whether the
suspension was unlawful because the MEC failed to observe the
principle
of
audi alteram partem
.
[32] The court
a quo
held that
the respondent was not afforded a proper right to be heard prior to
his suspension because the time constraint imposed
by the MEC
inviting him to make representations was patently unreasonable. After
the MEC agreed to an extension, the respondent
in effect had about 18
hours in which to make representations. The MEC took the position
that had he been obliged to afford more
time than that granted, the
delay would have negated the purpose of the suspension, namely the
prevention of interference with
the investigation. He believed the
respondent had ample knowledge at his disposal and adequate time to
address the allegations
made against him, and that he did in fact
make representations in his letter of 14 July 2010, which were taken
into account. The
Labour Court disagreed. Beyond stating that the
time afforded was unreasonable, it did not however elaborate on why
it considered
that to be so.
[33] In his founding affidavit, the
respondent based his right to a hearing on the provisions of the
Promotion of Administrative
Justice Act
3
(“PAJA”) as well as an
alleged violation of his constitutional rights. He stated:
‘
The
Second Respondent, which is an organ of State, has acted
unreasonably, and has denied me the very basic rights of natural
justice.
In so doing it has not only violated my constitutional
rights to human dignity and reputation but also contravened the
relevant
provisions of PAJA.’
[34] The judge
a
quo
recognised that “the
legal basis for the applicant’s claim was not articulated with
any degree of precision”.
Despite that he did not discuss why
the
audi
rule
applied to a precautionary suspension. In keeping with prevailing and
generally accepted practice, he merely assumed that it
inevitably
would. That assumption has been challenged by the MEC before us. The
source of the duty to afford procedural fairness
in cases of
precautionary suspension is not obvious, nor a question free from
difficulty. This led the MEC to submit on appeal
that the respondent
had failed to disclose a cause of action in respect to the right of a
hearing prior to suspension. Firstly,
he contended correctly that the
decision of the Constitutional Court in
Chirwa
v Transnet Ltd and Others
4
leaves no doubt that dismissals in the
public sector do not constitute administrative action and
consequently PAJA finds no application.
Secondly, direct reliance on
the fundamental rights contained in the Constitution is impermissible
when the right in issue is regulated
by legislation, as in this case
by the LRA
5
.
And, thirdly, because the respondent specifically failed to plead any
express, implied or tacit contractual term entitling him
to a hearing
prior to suspension, the MEC submitted, the court
a
quo
erroneously assumed the
existence of such a term when in fact and in law no such term existed
as part of the contract.
[35] For some time now, our courts
have recognised the right of an employee to a hearing prior to a
decision to suspend. There has
nonetheless been a discernable
difference in opinion among judges about the nature and extent of
that right, predictably depending
on the purpose and nature of the
suspension in question. Suspension, as is well-known, may take place
for different reasons. As
in the present case, an employee may be
suspended as a precaution or a “holding operation”,
pending an investigation
or a disciplinary hearing, or,
alternatively, suspension may be a disciplinary sanction imposed as a
penalty short of dismissal.
[36] In
Muller
v Chairman, Minister’s Council, House of Representatives, and
Others,
6
Howie J held a precautionary
suspension without pay pending a disciplinary enquiry to be invalid
for non-compliance with the
audi
alteram partem
rule. The
decision can no longer be regarded as persuasive authority because it
was founded on the assumption (then valid) that
a suspension of a
public official was administrative action reviewable on
administrative law grounds. The learned judge delineated
the issue
thus:
‘
Now
the correct approach to the question whether the
audi
rule
applies in a statutory context is this. When the statute empowers a
public body or official to give a decision prejudicially
affecting an
individual in his liberty, property, existing rights or legitimate
expectations, he has the right to be heard before
the decision is
taken unless the statute expressly or impliedly indicates the
contrary … The question referred to therefore
has two
components - (a) has there been a decision causing prejudice here and
(b) has a hearing been excluded by the Legislature?’
7
[37] After extensively reviewing the
authorities, Howie J held that a precautionary suspension invariably
prejudiced the rights
of an employee and that the specific provisions
of the legislation applicable in the case before him did not exclude
a hearing.
Referring to various decisions of foreign courts, the
learned judge elucidated upon the prejudice that ordinarily would
attend
a suspension. He observed:
‘
That
reasoning is persuasive and casts the nature and implications of a
public service officer’s suspension without pay in
telling and
accurate perspective. Such suspension unquestionably constitutes a
serious disruption of his rights. The implications
of being deprived
of one’s pay are obvious. The implications of being barred from
going to work and pursuing one’s
chosen calling, and of being
seen by the community round one to be so barred, are not so
immediately realised by the outside observer
… There are
indeed substantial social and personal implications inherent in that
aspect of suspension …’
8
[38] While the approach to the
question of whether the
audi
rule applies or not, as I
have said, is no longer authoritative, (because of the decision of
the Constitutional Court in
Chirwa
v Transnet Ltd and Others
9
that labour practices in the public
service do not constitute administrative action), the rationale for
the need for a hearing remains
compelling and persuasive.
[39] In
Koka
v Director-General: Provincial Administration North West Government,
10
the Labour Court held that a “holding
operation” suspension without pay was in effect the same as a
disciplinary suspension,
and as such could be an unfair labour
practice in terms of the then prevailing definition in item 2(1)(c)
of Schedule 7 to the
LRA - since repealed. Although not required to
decide the point, the court expressed doubt that a holding operation
suspension
would require the employee to be heard at the time of
suspension on the ultimate question of whether the charge is or is
not made
out
11
.
[40] In
Mabilo
v Mpumalanga Provincial Government and Others
12
,
the applicant had been suspended from duty on full pay pending a
disciplinary inquiry into various charges against him. He had
been
afforded five working days to provide satisfactory reasons why he
should not be suspended. The court was not prepared to find
that the
employer had committed an unfair labour practice. It distinguished
Muller
on
the grounds that the applicant would receive full pay during the
period of suspension. It held that the maintenance of the integrity
and morale of the employer required the action to be taken and
described the suspension as ‘a necessary measure aimed at
promoting orderly administration’.
13
[41] The approach of the Labour Court
from then on has not been wholly consistent, and various formulations
of the applicable standard
have been expressed.
14
In most cases the Labour Court has
held the view that the
audi
alteram partem
rule applies
in precautionary suspension cases, notwithstanding the mitigation of
the detrimental consequences by the payment of
full pay, because the
prejudice an employee may suffer as a result of suspension is not
limited to financial loss but may extend
to issues of integrity,
dignity, reputation and standing in the community.
[42] There is nevertheless a
noticeable lack of clarity in the case law about the basis upon which
the
audi alteram partem
rule
applies. Since
Chirwa
it
is irrefutable that the Labour Court may not review a suspension of
an employee in terms of section 6(2)(c) of PAJA on the grounds
of
procedural unfairness. As I have mentioned, the MEC’s main
criticism of the court
a
quo’s
reasoning is
that it assumed without justification that the contract of employment
contained an implied term, as part of a duty
of fair dealing perhaps,
providing for a right to be heard prior to the imposition of a
precautionary suspension. As far as I am
aware, there is no decided
case, and we were referred to no other authority, in which it has
been held or argued that the common
law contract of employment has
developed to the point that a right to a hearing prior to suspension
forms one of the
naturalia
of the contract, being ‘an
unexpressed provision of the law of contract which the law imports
therein, generally as a matter
of course, without reference to the
actual intention of the parties’
15
.
A court, in an appropriate case, could legitimately rule that
contemporary constitutional
mores
endorse the incorporation of a right
to a hearing before suspension as an implied term in all contracts of
employment on account
of natural justice being the proven best means
of producing correct, legitimate, just and better decisions. But as
the issue was
not raised on the pleadings in the court
a
quo
, this is not that case.
[43] The court
a
quo
in all likelihood
implicitly founded the right of the respondent to a hearing on the
right of every employee in terms of section
185(b) of the LRA not to
be subjected to unfair labour practices. Section 186(2) of the LRA
defines an unfair labour practice to
mean
inter
alia
any unfair act or
omission that arises between an employer and an employee involving
the unfair suspension of an employee. Grogan,
Workplace
Law
16
,
suggests that the term “suspension” in section 186 (2)
refers only to suspension imposed as a disciplinary penalty
and not
to the situation when an employer suspends an employee pending a
disciplinary hearing. I assume his interpretation rests
on the
express wording of section 186(2)(b), which reads:
‘
the
unfair suspension of an employee or any
other
unfair
disciplinary action short of dismissal in respect of an employee’
(my emphasis).
The prohibition evidently targets
unfair disciplinary action. That purpose, however, does not operate
to exclude unfair acts or
omissions in relation to precautionary
suspensions. As Grogan rightly points out, insofar as a precautionary
suspension invariably
forms part of the procedure leading to
disciplinary action it is inherently disciplinary in nature.
Consequently, the dictates
of fairness (procedural and substantive)
apply to all suspensions equally, regardless of the form a particular
suspension takes,
be it employed as a holding operation or as a
disciplinary sanction or penalty.
[44] The proposition that all
suspensions should be procedurally fair to avoid the stigma of an
unfair labour practice, on the other
hand, requires some
qualification. Fairness by its nature is flexible. Ultimately,
procedural fairness depends in each case upon
the weighing and
balancing of a range of factors including the nature of the decision,
the rights, interests and expectations affected
by it, the
circumstances in which it is made, and the consequences resulting
from it
17
.
When dealing with a holding operation suspension, as opposed to a
suspension as a disciplinary sanction, the right to a hearing,
or
more accurately the standard of procedural fairness, may legitimately
be attenuated, for three principal reasons. Firstly, as
in the
present case, precautionary suspensions tend to be on full pay with
the consequence that the prejudice flowing from the
action is
significantly contained and minimised. Secondly, the period of
suspension often will be (or at least should be) for a
limited
duration. The SMS Handbook for example imposes a 60 day limitation.
And, thirdly, the purpose of the suspension - the protection
of the
integrity of the investigation into the alleged misconduct - risks
being undermined by a requirement of an in depth preliminary
investigation. Provided the safeguards of no loss of remuneration and
a limited period of operation are in place, the balance of
convenience in most instances will favour the employer. Therefore, an
opportunity to make written representations showing cause
why a
precautionary suspension should not be implemented will ordinarily be
acceptable and adequate compliance with the requirements
of
procedural fairness.
[45] The right to a hearing prior to a
precautionary suspension arises therefore not from the Constitution,
PAJA or as an implied
term of the contract of employment, but is a
right located within the provisions of the LRA, the correlative of
the duty on employers
not to subject employees to unfair labour
practices. That being the case, the right is a statutory right for
which statutory remedies
have been provided together with statutory
mechanisms for resolving disputes in regard to those rights.
[46] Disputes concerning alleged
unfair labour practices must be referred to the CCMA or a bargaining
council for conciliation and
arbitration in accordance with the
mandatory provisions of section 191(1) of the LRA. The respondent in
this case instead sought
a declaratory order from the Labour Court in
terms of section 158(1)(a)(iv) of the LRA to the effect that the
suspension was unfair,
unlawful and unconstitutional. A declaratory
order will normally be regarded as inappropriate where the applicant
has access to
alternative remedies, such as those available under the
unfair labour practice jurisdiction
18
.
A final declaration of unlawfulness on the grounds of unfairness will
rarely be easy or prudent in motion proceedings. The determination
of
the unfairness of a suspension will usually be better accomplished in
arbitration proceedings, except perhaps in extraordinary
or
compellingly urgent circumstances. When the suspension carries with
it a reasonable apprehension of irreparable harm, then,
more often
than not, the appropriate remedy for an applicant will be to seek an
order granting urgent interim relief pending the
outcome of the
unfair labour practice proceedings.
[47] I am therefore of the view that
the judge
a quo
ought not to have exercised his discretion to
grant the declarator. I doubt also whether he had the legal
competence to do so. Without
the benefit of legal argument, however,
I hesitate to pronounce on the jurisdictional question of whether the
existence of the
arbitration remedy precludes relief in the form of a
declarator in all cases. There is no need to do so, since in the
final analysis
I am satisfied that the suspension was both fair and
lawful in that there was compliance with the
audi
rule. The
respondent was afforded enough time to make representations before
the decision to suspend him was taken. In the circumstances
of this
case, taking account of the respondent’s position, the serious
nature of the allegations against him, the possibility
that he could
adversely influence the investigation, the public interest in
ensuring that allegations of corruption and mismanagement
at the
highest levels of the public service are acted against swiftly and
efficiently, and the limited prejudice to the respondent
by reason of
the suspension being on full pay and for a limited duration, the
respondent had a reasonable and fair opportunity
to make
representations in response to the allegations made against him,
which were clearly set out by the MEC in the relevant
correspondence.
[48] In the result, the court
a quo
erred in granting the declarator that the suspension was unlawful
and in setting it aside. The appeal on these grounds must accordingly
be upheld.
[49] I turn now to the second leg of
the relief granted by the court
a quo
. It will be recalled
that the respondent sought and obtained an order interdicting the
Premier and the MEC from appointing any
person to the post of Head of
Department/Superintendant General of the Department of Education
unless and until he had been afforded
a fair opportunity to be
interviewed for the post.
[50] The learned judge
a quo
,
no doubt under pressure in the urgent court, granted the interdict on
a mistaken understanding of the content of an agreement
reached by
counsel. He understood counsel to have agreed that if the respondent
succeeded in obtaining the declarator that the
entitlement to the
interdictory relief would follow. He accordingly did not weigh the
competing contentions of the parties in relation
to the issues and
made no findings in that regard. According to counsel for the MEC,
that was not in fact the agreement. The parties
agreed only that
should the respondent be
unsuccessful
in respect of the
suspension issue, he would automatically
not
be entitled to
relief in respect of the interdict.
[51] Whatever the misunderstanding
regarding the agreement between counsel, the interdict should not
have been granted anyway, because
the requisites for an interdict
were not established. There was no evidence that any right to be
interviewed (if there was indeed
such a right), had been infringed in
any way. The respondent was invited twice to interview for the post,
but declined because
he felt prejudiced by his suspension. He was
moreover aware of the interviews and had adequate time to prepare,
especially in view
of the fact that he was interviewing for the post
he had occupied for a considerable period. There was also no
reasonable apprehension
of irreparable harm. Had he attended the
interview and been aggrieved by the outcome or the process, including
unfair consideration
of the allegations against him, he could have
sought appropriate alternative relief.
[52] Accordingly, the court
a quo
erred also in granting the interdict. The urgent application
ought consequently to have been dismissed in its entirety with costs.
[53] As for the costs of appeal, the
appeal itself was unopposed and no costs award should follow.
However, the application for
leave to appeal was vigorously opposed
and the MEC has sought and is entitled to those costs.
[54] The following orders are issued:
(i) The appeal is upheld.
(ii) The orders made by the Labour
Court on 30 July 2010 are set aside and substituted as follows:
‘
The
application is dismissed with costs.’
(iii) The respondent is ordered to pay
the appellant’s costs in the application for leave to appeal to
this Court.
___________
JR Murphy AJA
I agree.
_____________
Waglay DJP
I agree
____________
Molemela AJA
APPEARANCES:
FOR THE APPELANT: Adv M G Hitge
Instructed by Henk Wissing Attorneys
1
No
66 of 1995
2
1984
(3) 623 (A) at 634 H-I.
3
No
3 of 2000.
4
[2008]
2 BLLR 97
(CC).
5
SANDU
v Minister of Defence and Others
[2007] 9 BLLR 785
(CC) at 804.
6
1992
(2) SA 508
(C).
7
Muller
v Chairman, Minister’s Council, House of Representatives
at 516H
8
Muller
v Chairman, Minister’s Council, House of Representatives
at 523 B-D.
9
Note
4 above
10
[1997]
7 BLLR 874
(LC).
11
Koka
v Director-General: Provincial Administration North West Government
at 884G.
12
[1999]
8 BLLR 821
(LC).
13
Mabilo
v Mpumalanga Provincial Government
at 826 A, para 17.
14
See
in this regard
Ngwenya v Premier of KwaZulu Natal
[2001] 8
BLLR 924
(LC);
SAPO Ltd v Jansen van Vuuren NO. and Others
[2008] ZALC 33
;
[2008]
8 BLLR 798
(LC);
Mogothle v Premier of the North West Province
and Another
[2009] 4 BLLR 331
(LC); and
Dince and Others v
Department of Education North West Province and Others
[2010] 6
BLLR 631
(LC).
15
Alfred
McAlpine and Son v Transvaal Provincial Administration
1974 (3)
SA 506
(A) at 531 E-H.
16
(Juta,2009
10
th
Ed) at 83.
17
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Others
2001 (3) SA 1151
(CC).
18
Mantzaris
v University of Durban - Westville and Others
[2000] 10 BLLR
1203
(LC) at 1212.