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[2009] ZALCJHB 102
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POPCRU obo Masemola and Others v Minister of Correctional Services (J1229/09) [2009] ZALCJHB 102 (30 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J1229/09
In
the matter between:
POPCRU
obo S.P MASEMOLA & 14 OTHERS
APPLICANT
and
THE
MINISTER OF CORRECTIONAL
SERVICES
RESPONDENT
JUDGMENT
Nyathela
AJ
Introduction
[1]
This is an urgent application brought in
terms of Rule 8 of the Labour Court Rules. The applicants seek to
review and set aside
the respondent’s decision to suspend them.
[2]
The application is opposed by the
respondent.
The
parties
[3]
The applicant is POPCRU, a duly registered
trade union acting in terms of
section 200
of the
Labour Relations
Act 66 of 1995
on behalf of 15 of its shopstewards.
[4]
The respondent is the Minister of
Correctional Services and is cited in his official capacity as the
Minister responsible for the
Department of Correctional Services.
The
facts
[5]
On 15 June 2009, Masemola requested
permission from management to address members of POPCRU after the
morning briefing session.
The purpose of the address was to give
members feedback about recent developments relating to industrial
action and the Occupational
Specific Dispensation (OSD).
[6]
He was granted the permission to address
members of POPCRU at the Maximum and Youth Centres. He was not
granted permission to address
members at the Medium Centre because
members had already dispersed after the morning briefing.
[7]
Masemola, Rachidi and Mbokani addressed the
members at the Youth Centre while Masoko addressed the members at the
Maximum Centre.
During the address and in response to a question,
Masemola advised members at the Youth Centre that attending church
and religious
functions were not compulsory and no one can be forced
to attend. Masoko also conveyed the same message to members at the
Maximum
Centre.
[8]
None of the other employees addressed the
meetings with regard to the issue of the Youth Prayer Day which was
arranged by management.
[9]
Despite that it was Masemola, Rachidi,
Mbokane and Masoko who addressed the members, respondent suspended a
total of 15 employees.
The respondent issued identical suspension
letters to all 15 applicants.
[10]
The contents of the suspension letters are
as follows:
“
SUSPENSION:
YOURSELF
It has come to the
attention of Management that you intentionally and deliberately
intimidated / negatively incited fellow employees
not to attend an
official event (Regional Youth Prayer Day) on 12 June 2009 at
Baviaanspoort Management Area.
After considering the
available information and your involvement onto this conduct,
Management has decided to suspend you with immediate
effect from your
official duties.
You will remain suspended
pending the finalization of the investigation into this matter. It is
worth mentioning that this suspension
holds no punitive measure, but
to ensure that the rights of both parties (i.e the employer and the
employee) are protected and
respected. You will be contacted by an
officially appointed Investigating Officer in due course.
Conditions of your
suspension
1.
You must report at Employee Relation
Office (Mr Mothapo) every Wednesday before 10:00
2.
During the period of the suspension
you are not allowed to enter the DCS facilities without the
permission of the Area Commissioner
or the AC
Corporate
Services as indicated in Par. 1. Supra.
3.
You are expected to be cooperative
towards the Department of Correctional Services and act responsibly
4.
You will till be entitled to your
salary excluding overtime and danger allowances for obvious reasons.
5.
In terms of the Correctional
Services Regulation 72(3) you are not
allowed to wear
uniform or use your identification card during your suspension
6.
You are strongly warned against
making threats to any person being involved in the case or to cause
any person being involved in
the case to be threatened.
You are therefore
afforded the opportunity to respond within 24 hours as to why the
suspension cannot stand as mentioned above.
Mr Matthee R
2009-06-12
Area
Coordinator: Corporate Services
Bavariaanspoort
Management Area
[11]
According to the applicant, respondent
failed to inform the affected employees of its intention to suspend
them from duty prior
to the suspension. The employees were deprived
of an opportunity to state their case before a final decision to
suspend them was
taken.
[12]
Applicant stated that respondent is
victimising the employees for representing POPCRU. Respondent does
not have an objectively justifiable
reason to deny the employees
access to the workplace based on the intergrity of the investigation
into the alleged misconduct or
some other relevant factor that would
place the investigation or the interests of affected parties in
jeopardy.
[13]
Respondent has also failed to inform and
consult the union before the suspension of the fifteen employees as
they are all shopstewards.
The result of the suspension is that union
representatives were removed from the employer’s premises and
prevented from performing
their activities as trade union
representatives.
[14]
Applicant was also deprived of an
opportunity to make suitable alternative arrangements for the
continuation of trade union activities
as a result of the
suspensions. Applicant has a total of 19 shopstewards at
Baviaanspoort Management Area. As a result of the suspensions,
applicant is left with 4 shopstewards.
[15]
Applicant stated further that Masemola is
not employed at the Baviaanspoort Management Area but was suspended
by the management
thereof. Applicant submitted that Baviaanspoort
management had no authority to suspend Masemola.
[16]
On 17 June 2009, Applicant lodged an urgent
application with the court seeking that the suspension of the
employees should be reviewed
and set aside. Applicant also requested
that the respondent should be ordered to allow the employees to
return to work.
[17]
The application was served on the State
Attorney on 17 June 2009 at 08h30.
[18]
On 18 June 2009 both parties appeared
before court and agreed that the respondent will file an answering
affidavit by 16h00 on the
same date. The case was stood down until 19
June 2009 at 10h00.
[19]
Respondent has failed to file the answering
affidavit on the 18
th
June 2009 at 16h00 as agreed. On 19 June 2009 respondent filed its
answering affidavit with the court but did not serve same on
the
applicant.
[20]
On 19 June 2009 both parties appeared in
court but the case was postponed to 22 June 2009. Respondent handed
applicant’s counsel
with its answering affidavit which was
incomplete. The application was heard on 22 June 2009 but however as
at that date, respondent
had not been served with the answering
affidavit save an incomplete copy which respondent gave to
applicant’s counsel on
19 June 2009.
Point
in limine
[21]
On 22 June 2009 applicant raised a point in
limine and argued that respondent failed to comply with an agreement
reached in court
that it will file an answering affidavit on 18 June
2009 at 16h00. As at the time of the hearing on 22 June 2009,
respondent had
not served its answering affidavit on the applicant’s
attorney of record. Applicant argued further that respondent should
have applied for condonation for the late filing of the answering
affidavit.
[22]
In response, respondent argued that it
underestimated the time allocated for compiling the answering
affidavit hence its failure
to comply with the time frames.
Respondent argued that it attempted to serve on the attorneys of
record by pushing the answering
affidavit at midnight on the entrance
door of the chambers.
[23]
Having considered the point in limine and
the response thereto, I am satisfied that respondent did not serve
the answering affidavit
on the applicant’s attorneys of record.
Respondent did not provide a reasonable explanation for its failure
to serve the
answering affidavit. The rules of court allow for
service even by fax and thus respondent’s failure to serve even
by fax
cannot be accepted. There is further no valid explanation as
to why respondent only served an incomplete answering affidavit on
applicant’s counsel on 19 June 2009. Furthermore, since 19 June
2009, respondent still had ample opportunity to can serve
the
answering affidavit on applicant’s attorney of record but did
not do so even as at the date of hearing on 22 June 2009.
In the
circumstances, respondent conduct is unacceptable and the answering
affidavit cannot be accepted.
[24]
I will proceed and deal with the matter on
an unopposed basis.
Legal
position
[25]
Rule 8(2) of the Rules of the Labour Court
provides that: “
The affidavit in
support of the application must also contain-
(a)
The reasons for urgency and why
urgent relief is necessary;
(b)
The reasons why the requirements of
the rules were not complied with, if that is
the case; and
(c)
....
[26]
In University of the Western Cape Academic
Staff Union & others v University of the Western Cape (1999) 20
ILJ 1300 (LC) at
page 1303 para 12 -13 the court held that “
In
my view the Labour Court would be failing in it stated task if it
were to deny such relief even in circumstances where the unfairness
sought to be prevented is very glaring. Experience has taught us that
lateral conduct that ignores relevant provisions and any
semblance of
fairness. In certain circumstances the detrimental consequences of
such conduct cannot be addressed by an award after
arbitration or
adjudication has taken place.
I
must hasten to add however hat in exercising this power the Labour
Court should apply the same standards as the High Court. See
Spur
Steak Ranches Ltd v Saddles Steak Ranch
1996 (3) SA 706
(C) at 714B-C
where Selikowitz J said: “The well
known requirements for the grant of an interdict are (1) a clear
right or right prima facie
established though open to some doubt; (2)
a well grounded apprehension of irreparable harm if the interim
relief is not granted
and ultimate relief is granted; (3) a balance
of convenience in favour of the granting of interim relief and (4)
the absence of
any satisfactory remedy”.
[27]
In Mogothle v Premier North West Province
(2009) 30 ILJ 605 (LC) at para 39 “
In
summary: each of the preventative suspension must be considered on
its own merits. At the minimum though, the application of
the
contractual principle of fair dealing between employer and employee,
imposing as it does a continuing (obligation) of fairness
on
employers when they make decisions affecting their employees requires
first
that the employer has a justifiable reason to believe, prima facie at
least, that the employee has engaged in serious misconduct;
secondly,
that there is some objectively justifiable reason to deny the
employee access to the workplace based on the intergrity of any
pending investigation into the alleged misconduct or some other
relevant factor that that would place the investigation or the
interests of the affected parties in jeopardy; and
thirdly,
that the employee is given the opportunity to state a case before the
employer makes a final decision to suspend the employee.
(my
underlining)
[28]
In SAPO v Jansen Van Vuuren NO & others
[2008] ZALC 33
;
(2008) 8 BLLR 798
(LC) Molahlehi J stated at para 39 the following:
“
There
is, however, a need to send a message to employers that they should
refrain from hastily resorting to suspending employees
when there are
no valid reasons to do so. Suspensions have a detrimental impact on
the affected employee and may prejudice his
or her reputation,
advancement, job security and fulfilment. It is therefore necessary
that suspensions are based on substantive
reasons and fair procedures
are followed prior to suspending an employee. In other words, unless
circumstances dictate otherwise,
the employer should offer an
employee an opportunity to be heard before placing him or her on
suspension”.
Analysis
[29]
As stated above, applicant filed this
application as an urgent application. This court should therefore
first determine whether
the application is urgent or not.
Urgency
[30]
I now proceed to deal with the question
whether the application is urgent or not. The employees were served
with the suspension
letters on 15 June 2009 and the suspension was
with immediate effect.
[31]
POPCRU brought an application to set aside
the suspension and to order the respondent to allow the 15 employees
to return to work
on their behalf to this court on an urgent basis on
the 17
th
June 2009.
[32]
When an applicant lodges an urgent
application, there are requirements that need to be satisfied. The
question to be asked is, have
the grounds for urgency been
established?
[33]
In the founding affidavit, applicant
submitted that the application is urgent and stated the following:
32.1The suspension has a
detrimental impact on the 15 employees and prejudices their
intergrity and reputation as union representatives
as well as their
job security.
32.2The suspension has a
detrimental impact on the union and prejudices its functioning in the
Department within the framework of
applicable labour legislation.
32.3 The suspension has a
detrimental impact on the relationship between the union and the
Department and prejudices the possibility
of continued sound labour
relations between the parties.
32.4 It is in the
interest of justice that the unfair suspension of shopstewards should
be brought to the attention of the court.
[34]
In this matter, the crucial issue is that
applicant has lodged his application within two days from the date of
suspension. This
together with the negative impact which the
suspension has on applicant’s intergrity and reputation renders
this matter to
be urgent.
[35]
In view of my finding that the matter is
urgent, I should proceed and deal with the other requirements for
granting urgent relief.
As pointed out in
University
of the Western Cape Academic Staff Union
above at para 13 “...
the well
known requirements for the grant of an interdict are (1) a clear
right or a right prima facie established though open to
some doubt;
(2) a well grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is
granted; (3) a
balance of convenience in favour of the granting of interim relief
and (4) the absence of any satisfactory remedy.
Clear
right
[36]
In this matter, the applicant has in the
founding affidavit stated that the 15 of its members were suspended
from employment. Applicant
has also stated that the employees were
suspended without having been afforded a chance to be heard. In view
of the finding in
the South African Post Office case that a
suspension impacts on a person’s reputation,
intergrity
and job security, I find that it is improper to suspend an employee
without affording him an opportunity to provide reasons why
he should
not be suspended. Applicant has proved that the employees had a right
to be heard prior the suspension and that the respondent
had violated
that right. This is in line with the decision in South African Post
Office cited above.
Irreparable
harm
[37]
Taking into account the harm that applicant
will suffer as a result of the upliftment of the suspensions, the
harm is outweighed
by the one to be suffered by the employees if the
remain on suspension. Having found that the suspension has a negative
impact
on a person’s dignity, the harm to the employee’s
reputation, dignity, intergrity and job security will perpetuate if
the suspension remains. Applicant has shown that it will suffer
irreparable harm as a result of the suspension.
Balance
of convenience
[38]
I am of the view that the respondent will
suffer no irreparable harm i the suspension is lifted. The
allegations against the employees
do not appear to be very serious
forms of misconduct as they relate to what the employees said in a
meeting. The respondent could
have completed the investigations by
now since the date of the suspensions.
Alternative
relief
[39]
The issue which applicant is complaining
about is the suspension of its members. I am of the view that a claim
of damages will not
correct the harm that applicants would have
suffered as a result of their suspension. I am satisfied that there
is no alternative
relief available to the applicant. It is not in
dispute that the 15 employees are shopstewards of POPCRU. In my view,
the requirement
of consultation will include a case where a
shopsteward is to be suspended.
[40]
Applicant has proved the requirements to
justify the relief prayed for in their notice of motion. The glaring
unfairness in the
manner in which the suspensions were effected
warrants that the suspensions be reversed without delay.
Order
[41]
In the light of the above analysis, I make
the following order:
(i)
The suspension of the 15 employees is
hereby set aside.
(ii)
The employees should return to work with
immediate effect.
(iii)
There is no order as to costs.
_______________
Nyathela
AJ
Date
of Hearing :
22 June 2009
Date
of Judgment :
30 June 2009
Appearances
For
the Applicant :
Adv. J.L Basson
Instructed
by:
Grosskopf Attorneys
For
the Respondent: Adv. L.
Moloisane
Instructed
by:
State Attorney