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[2006] ZALCJHB 22
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Minister of Labour v General Public Service Sectoral Bargaining Council and Others (JR723/05) [2006] ZALCJHB 22 (17 October 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR723/05
In
the matter between:
MINISTER
OF
LABOUR Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First
Respondent
ZODWA
MDLADLA
(ARBITRATOR) Second
Respondent
DU
BRINK
Third
Respondent
JUDGMENT
Introduction
1.
This is an application to review an arbitration award in terms of
which it was
found that the third respondent’s suspension by
the applicant for more than 60 days is an unfair labour practice.
The
applicant was ordered to uplift with immediate effect the third
respondent’s suspension.
2.
The application was opposed by the third respondent.
The background
facts
3.
The third respondent, Du Brink is an employee of the applicant -
the Department
of Labour. He is an Assistant Director:
Information Technology. He reports to the Chief Information
Officer within
the applicant’s department. He was
suspended for two years from 2002 to 2004 for alleged nepotism,
sexual harassment
and self enrichment. He then resumed his
duties on 30 June 2004 after his suspension was uplifted. On 30
August 2004
he was again suspended from his duties because of
allegations of fraud and corruption.
4.
The third respondent declared a dispute and referred it to the first
respondent,
the General Public Service Sectoral Bargaining Council
(the GPSSBC) for conciliation and arbitration. He challenged his
suspension
on the basis that it was an unfair labour practice because
it was indefinite. The arbitration hearing took place on 25
January
2005 before the second respondent (the arbitrator). No
evidence was led at the arbitration hearing but submissions were made
and a number of documents were placed before the arbitrator.
The issue that had to be determined by the arbitrator was whether
the
applicant had suspended the third respondent for more than the period
stipulated in Resolution 1 of 2003 (the Resolution) of
the Public
Service Coordinating Bargaining Council (PSCBC), and if so, whether
the suspension amounted to an unfair labour practice.
5.
The arbitrator in an award dated 15 February 2005 found that no
evidence showed
that before the third respondent was suspended that
he was given an opportunity to make representations on why he should
not be
suspended or why the suspension should not be extended.
The arbitrator found that in terms of clause 7.2(c) of the Resolution
an employee had to be brought into a hearing within 60 days and if
the investigation was not yet completed, the parties had to
go to the
hearing and request a postponement for a further investigation.
Any delay that exceeded 60 days without the employee
being brought
into a hearing was unfair. The arbitrator found that no
evidence was placed before her that suggested the exceptional
circumstances that warranted more than 60 days of suspension.
The arbitrator found that the applicant had committed an unfair
labour practice by suspending the third respondent for more than 60
days and ordered the applicant to uplift the suspension with
immediate effect.
6.
The applicant felt aggrieved with the award and brought a review
application
on 30 March 2005. It appears that the grounds for
review are as follows:
Analysis of the
evidence and arguments raised
7.
In the matter of
Rustenburg Platinum Mines Ltd (Rustenburg
Section) vs CCMA and two others Case No: 598/05
the Supreme Court
of Appeal restated what the requirement for an application for a
review is which is whether the commissioner’s
decision was
rationally connected to the information before him and to the reasons
he gave for it. There must be a rational
objective basis
justifying the connection the commissioner made between the material
before him and the conclusion he reached.
The court also found
that the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
applies. The following was said at paragraphs
31 and 32 of the
aforesaid judgment:
“
In
a review, the question is not whether the decision is capable of
being justified (or, as the LAC thought, whether it is not so
incorrect as to make intervention doubtful), but whether the
decision-maker properly exercised the powers entrusted to him to
her. The focus is on the process, and on the way in which the
decision-maker came to the challenged conclusion. This
is not
to lose sight of the fact that the line between review and appeal is
notoriously difficult to draw. This is
partly because
process-related scrutiny can never blind itself to the substantive
merits of the outcome. Indeed, under PAJA
the merits to some
extent always intrude, since the court must examine the connection
between the decision and the reasons the
decision-maker gives for it,
and determine whether the connection is rational. That task can
never be performed without taking
some account of the substantive
merits of the decision.
But
this does not mean that PAJA obliterates the distinction between
review and appeal......
In
Carephone, Froneman DJP explained that in determining whether
administrative action is justifiable in terms of the reasons given
for it (or, in PAJA’s formulation, whether the connection made
is ‘rational’) -
‘
value
judgments will have to be made which will, almost inevitable, involve
the consideration of the ‘merits’ of the
matter in some
way or another. As long as the Judge determining this issue is
aware that he or she enters the merits not
in order to substitute his
or her own opinion on the correctness thereof, but to determine
whether the outcome is rationally justifiable,
the process will be in
order.”
8.
It is common cause that the third respondent was suspended on 30
August 2004.
He then referred a dispute to the first respondent
for conciliation and arbitration. It is common cause that no
evidence
was led at the arbitration proceedings. Certain
documents were handed in and the parties made certain submissions.
None of the documents handed up at the arbitration hearing were
placed before this Court. On 15 February 2005 the arbitrator
found that the suspension was unfair and ordered the applicant
immediately to uplift the suspension. The applicant has failed
to do so.
9.
On 15 March 2005 that the applicant charged the third respondent with
misconduct
and was called upon to attend a disciplinary hearing in
terms of clause 6 and 7 of the PSCBC Resolution. At the hearing
of
29 March 2005 the applicant asked to be legally represented and
after hearing argument the presiding officer granted the request.
The matter did not proceed. All of this happened after the
arbitrator had issued the award.
10.
Before dealing with the grounds of review I deem it necessary to
refer to clause 7.2(c)
of the Resolution which provides as follows:
“
If
an employee is suspended or transferred as a precautionary measure,
the employer must hold a disciplinary hearing within a month
or 60
days, depending on the complexity of the matter and the length of the
investigation. The chair of the hearing must
then decide on any
further postponement”.
11.
It is clear from clause 7.2(c) of the Resolution that after an
employee has been suspended
that a disciplinary hearing must be held
within a month or 60 days. If the matter is complex, the
disciplinary hearing must
be held within 60 days and the chairperson
of the hearing must then decide on any further postponements.
The suspension can
therefore not exceed more than 60 days without a
disciplinary hearing being held. Facts can be placed before the
chairperson
to grant a further postponement due to the complexities
of the matter.
12.
At the commencement of the review proceedings, Ms Makhubela who
appeared for the applicant
conceded that there is no substance in the
applicant’s first grounds of review relating to the
interpretation of the Resolution.
The concession was well made
since the arbitrator in determining the issue that she was called
upon to decide had to interpret
clause 7.2(c) of the Resolution.
The dispute referred to the first respondent was not one involving an
interpretation of
clause 7.2(c) but whether or not the suspension
exceeded the period mentioned in it and if it were an unfair labour
practice.
In deciding the issue an arbitrator should interpret
the specific clause.
13.
It is clear from the facts placed before the arbitrator that the
suspension of the third
respondent exceeded 60 days. He was
only charged after an award was issued by the arbitrator. The
disciplinary hearing
did not proceed thereafter. The
arbitrator correctly found that the applicant committed an unfair
labour practice.
In this regard see
Ngwenya
vs Premier of Kwa-Zulu Natal
(2001) 22
ILJ 1667 (LC). The second ground of review is also baseless.
The fact is that the applicant did not attempt
to comply with clause
7.2(c) of the Resolution. The arbitrator did not commit any
reviewable irregularity. She understood
what the issues were
that she was required to determine. She correctly applied the
law to the facts. There is a rational
objective basis
justifying the connection she made between the material placed before
her and the conclusion she reached.
14.
The application stands to be dismissed.
15.
All that remains to be considered is the issue of costs. Mr
Kruger who appeared for
the third respondent urged me to grant costs
on an attorney and clients scale. This was so on the basis that
the applicant
had previously suspended the third respondent for a
period of two years, brought a review application and thereafter
withdrew the
application. The suspension was uplifted.
The third respondent was again suspended. The third respondent
did
not give any notice either in its answering affidavit or heads of
argument that it would be seeking an order for costs on an attorney
and client scale. This is clearly not permissible. I have
taken into account that the third respondent is still an
employee of
the applicant and that because no such prior notice was given to the
applicant about punitive costs that the applicant
pay the third
respondent’s costs on a party and party scale.
16.
In the circumstances I make the following order:
16.1
The application is dismissed with costs on a party and party scale.
___________________`
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: MS
MAKHUBELA INSTRUCTED BY STATE ATTORNEY
FOR THIRD
RESPONDENT
:
T P
KRUGER INSTRUCTED BY HEIDI BARNARD ATTORNEYS
DATE
OF HEARING
:
29
SEPTEMBER 2006
DATE OF
JUDGMENT
: 17
OCTOBER 2006