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[2010] ZALCJHB 350
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Mabokela v Moretele Local Municipality (J1245/10) [2010] ZALCJHB 350 (24 June 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE
NO: J 1245/10
In the matter between:
FRANCE
TEMEKI
MABOKELA
Applicant
and
MORETELE
LOCAL MUNICIPALITY
Respondent
JUDGMENT
LAGRANGE, J
Introduction
1.
This is an unopposed urgent application in which the applicant, the
respondent’s chief financial officer, seeks to review
and set
aside the decision of the respondent’s municipal manager to
suspend the applicant on 11 June 2010.
2.
The applicant also seeks an order requiring the respondent to
consolidate all disciplinary proceedings pending against him in
a
single enquiry.
Background
3.
The applicant had previously been suspended on 1
st
March
2010, pending a disciplinary enquiry. The applicant was furnished
with details of the charges on the same day.
4.
The enquiry did not proceed during March as originally scheduled
owing to some points
in limine
being raised. The next date the
enquiry will be sitting is 7 July 2010.
5.
On 1 June 2010 the applicant’s attorney notified the municipal
manager in a letter that the applicant’s period of
suspension
expired on 31 May 2010 “in terms of the Collective Agreements”
between the employer and employee parties.
It further advised that
accordingly he would be returning to work on 3 June 2010.
6.
On 3 June 2010, the municipal manager, also by letter, confirmed that
the applicant should return to work on 7 June 2010. However,
the
mayor of the respondent took exception to the action of the municipal
manager and issued a letter on 10 June 2010, advising
that the
decision to reinstate the applicant was an error. The reasons
given by the mayor were that the applicant as a section
57 manager
was not covered by the Bargaining agreement and that he had been
charged in terms of Annexure A of the municipal code
of conduct
and,only in the alternative, under the collective agreement.
The municipal manager then issued a letter to the
applicant on the
same date advising of the revival of his suspension in line with the
mayor’s instruction. The applicant
remains suspended on
pay and has not attended work since 11 June 2010.
7.
The applicant’s attorneys made representations to secure his
re-admission to the workplace without success. After the respondent
failed to accede to a request to reinstate the applicant by 15 June
2010, the applicant then launched these proceedings on 18 June
2010.
The
rights the applicant seeks to assert
8.
The applicant seeks to set aside his suspension on a number of
grounds. Firstly, he objects to the fact that he was suspended
without being given an opportunity to make any representations before
the decision to suspend him was taken. He alleges that this
denied
him a right to
audi alterem partem
and was also unfair. He
also alleges that the municipal manager failed to comply with the
respondent’s Code of Conduct and
ignored the procedures he had
to follow. Alternatively, he effectively claims that the municipal
manager simply acceded to the
mayor’s wishes and did not
exercise his own discretion in reviving the suspension.
9.
The applicant appears to rely, at least in part, on a provision in
respondent’s Code that states a suspension of an employee
should not exceed three months. Although it seems the municipal
manager must have accepted the correctness of this contention,
no
copy of the provision was attached to the founding affidavit. The
only extract from the Code which was contained in the founding
papers
refers to the requirement that discipline should be effected fairly,
consistently, progressively and promptly.
10.
The applicant alleges that the prolonged extension is prejudicial to
his reputation and job security and that there is
no objective reason
provided by the employer for its continuation.
The
respondent’s Code of Conduct
11.
As stated, the only extract of the respondent’s code made
available to the court to which the applicant referred
deals with the
requirements of disciplinary action. I am not aware of any
basis on which it can be argued that the act of
suspending an
employee on pay is tantamount to disciplinary action. It is often a
prelude to disciplinary proceedings, as it was
in this case, but is
not the same as disciplinary action itself. Accordingly, the
contractual requirement that disciplinary action
should be fair,
which is set out in the Code does not extend to cover the act of
suspension with pay. However, there are other
statutory provisions
directly governing the applicant’s suspension, which are
addressed below.
The
applicant’s reliance on a right to fair administrative action
12.
In the
absence of a contractual right, the legal basis of the applicant’s
claim, must rest on a right to fair administrative
action, or the
requirement of legality. For the reasons which follow below the
matter can be disposed of on the basis of legality
rather than by
considering the applicant’s right to fair administrative
action. In any event, the existence of the latter
right is very
doubtful in the light of the dictum of the Constitutional Court in
Gcaba
v Minister for Safety & Security & Others
(2009) 30 ILJ 2623 (CC)
to
the effect that “a grievance raised by an employee relating to
the conduct of the state as employer” which has “few
or
no direct implications or consequences for other citizens” does
not amount to administrative action.
[1]
Consequently, it seems an administrative law remedy would not be
available to the applicant, even though the LRA also does not
provide
a remedy for unfair action relating to suspension on pay, in terms of
the ambit of an unfair labour practice as defined
in section 186(2)
of the LRA.
13.
The applicant’s attack on the decision to suspend him on
the ground that the municipal manager did not exercise an independent
discretion but simply kowtowed to the wishes of the mayor would also
not be cognizable as an infringement of the right to fair
administrative action, following the decision in
Gcaba
.
The
legality of the applicant’s suspension
14.
Turning
to the legality of the applicant’s suspension, his claim for
relief rests on firmer ground. It appears to be undisputed
that the
applicant is employed in terms of
section 57
of the
Local
Government: Municipal Systems Act 32 of 2000
, which deals with the
employment of municipal managers and managers directly accountable to
municipal managers. The employment
of such persons is governed
amongst other things by Regulations promulgated under the Municipal
Systems Act.
[2]
Regulation
16 specifically governs precautionary suspensions and states:
“
16(1) The
employer may suspend an employee on full pay if he or she is alleged
to have committed a serious offence and the
employer believes his or
her presence at the workplace might jeopardize any investigation into
the alleged misconduct or endanger
the well being or safety of any
person or municipal property;
provided that before an employee is
suspended as a precautionary measure, he or she must be given an
opportunity to make representation
on why he or she should not be
suspended
.
(2) The employee who is
to be suspended must be notified in writing, of the reasons for his
suspension simultaneously or at the
latest within 24 hours after the
suspension. The employee has a right to respond within seven (7)
working days.
(3) If an employee is
suspended as a precautionary measure, the employer must hold a
disciplinary enquiry within sixty (60) days
form the date of
suspension, provided that the chairperson of the hearing may extend
such period, failing which, the suspension
must be terminated in
writing and the employee must return to full duty.”
(emphasis added)
15.
In terms of what transpired in this instance, regulation 16(1) was
not complied with. That regulation sets out one of
the pre-requisites
for exercising the power of suspension which the executive authority
must comply with. Accordingly, in suspending
the applicant without
complying therewith the respondent acted unlawfully. The harm
suffered by the applicant is being deprived
of his right to be heard
before suspension is effected and not to be suspended unless this is
done. There is no suitable alternative
remedy available to giving
direct effect to the right.
The
consolidation of disciplinary proceedings.
16.
The applicant also seeks an order compelling the respondent to hold a
single inquiry into all the charges of misconduct
brought against
him. Two sets of charges were issued to the applicant on 1 March and
11 June 2010 respectively. From the
wording of the mayor’s
letter of 11 June 2010, the charges contained in the letter are
clearly intended to be added to the
previous ones. There is nothing
in the letter to indicate that they will not be part of the same
inquiry already initiated against
him.
17.
Obviously, it is generally desirable that disciplinary proceedings
should be conducted expeditiously and that charges
should not be
added on a piecemeal basis as the hearing proceeds. However, as the
proceedings do not appear to have reached the
stage where evidence is
being led on the merits of the charges and everything indicates the
charges will be considered in the same
proceedings, the factual basis
for the applicant’s fear of piecemeal proceedings has not been
established, irrespective of
whether or not he could assert any
rights in this regard.
Order
18.
In the light of the above, it is ordered that:
18.1.
the application is deemed to be urgent and non-compliance
with the
Rules of the court pertaining to the form and service of the
application are condoned;
18.2.
the decision of the respondent’s municipal
manager to suspend
the applicant on 11 June 2010, was unlawful and is set aside;
18.3.
the respondent must permit the applicant to return
to work on the
next working day following the date of this order, and
18.4.
the respondent is ordered to pay the applicant’s
costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 22 June 2010
Date
of Judgment: 24 June 2010
Appearances:
For
the Applicant:
Advocate:
C Prinsloo
Attorney:
Moima & Associates Attorneys
[1]
At 2538-9, paras [63] to [69]
[2]
See (G,
29089,
RG 8521, GoN 805), 1 August 2006