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[2010] ZALCJHB 337
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Machimane v Mashangoane and Others (J2382/10) [2010] ZALCJHB 337 (9 December 2010)
Not
reportable
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
no: j 2382/10
In
the matter between:
WENDY
MACHIMANE
Applicant
and
SIMON
R
MASHANGOANE
First respondent
HELEN
FRANZ SPECIAL
SCHOOL
Second respondent
DEPT
OF EDUCATION,
LIMPOPO
PROVINCIAL
GOVERNMENT
Third respondent
MEC,
DEPT OF EDUCATION,
LIMPOPO
PROVINCIAL
GOVERNMENT
Fourth respondent
HEAD
OF THE DEPARTMENT OF EDUCATION,
LIMPOPO
PROVINCIAL
GOVERNMENT
Fifth respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
The applicant is a teacher at the Helen
Franz special school in Limpopo, the second respondent in this
application. The first respondent
is the principal of the school.
[2]
The applicant seeks urgent relief in the
following terms:
2.1
Condoning applicant’s non-compliance
with the rules relating to service, filing and dealing with the
application on an urgent
basis.
2.2
Interdicting and prohibiting first
respondent from harassing applicant sexually or in any other manner.
2.3
Declaring unlawful, and/or irregular and
setting aside the written warning dated 15 October 2010, issued under
the hand of the first
respondent.
2.4
Declaring unlawful, and/or irregular and
setting aside the written warning dated 22 October 2010, issued under
the hand of the first
respondent.
2.5
Ordering that a rule nisi be issued calling
upon the respondents to show cause, on a date and time to be
determined by the registrar,
why the interim orders should not be
made final.
2.6
Costs of suit on an attorney and own client
scale.
Background
[3]
The applicant has been employed as an
educator at the Helen Franz special school at Bochum in Limpopo since
2000.
[4]
In the course of 2010 a dispute developed
between the applicant and the school governing body (SGB) over her
accommodation. The
SGB resolved that members of staff who were living
in the principal’s house should vacate the house in order to
make way
for it to be turned into a guesthouse for visiting parents.
The applicant was unwilling to do so.
[5]
As a result of this altercation, the
applicant brought an urgent application before Bhoola J on 16
November 2010. The application
was not opposed. The court granted an
order in the following terms:
"The first
respondent [the principal] is interdicted from locking or causing the
applicant to be locked out of her accommodation
at the Helen Franz
special school, to which she is entitled as an implied term of
employment."
[6]
At the hearing before Bhoola J, the
applicant also sought relief relating to the warnings as set out in
subparagraphs 2.3 and 2.4
above. Bhoola J was not satisfied that the
applicant had set out the legal framework relating to the discipline
of educators. It
appears that the applicant’s attorney then
abandoned those prayers and brought a fresh application in the terms
set out above.
That application was launched on 26 November 2010.
Urgency
[7]
The applicant alleges that she has been
exposed to sexual harassment by the principal over the last 10 years.
The written warnings
that she complained of, were issued on 15 and 22
October 2010 respectively. This application was launched more than a
month later.
Not surprisingly, Mr Zulu, who appears for the
respondents, has raised the question why this matter should be heard
on an urgent
basis.
[8]
Mr Mangena, the applicant’s attorney,
submits that this application should be seen in the context of the
earlier application
that served before Bhoola J on 16 November 2010.
That application was launched on 12 November 2010.
[9]
The complaint relating to sexual
harassment, however, did not form part of the earlier application. A
complaint in this regard was
addressed to the Head of Department of
the Department of Education, Limpopo, (the fifth respondent) for the
first time on 5 October
2010. The applicant has waited almost two
months to bring this application on an urgent basis; and she says
that the conduct complained
of dates back over 10 years. The relief
sought in subparagraph [2.2] should be struck from the roll for lack
of urgency alone.
I will nevertheless give the applicant’s
attorney the benefit of the doubt regarding the reason why the
application with
regard to the warnings was only launched on 29
November 2010 and I will deal with the merits relating to both
elements of the application.
The merits
Sexual harassment
[10]
The allegations regarding sexual harassment
are vague in the extreme. Although the applicant says that the
principal "is notorious
for fondling and seductively touching
the female staff" and that he has "on numerous occasions
made advances towards
applicant by suggestively touching [her]”
over the last 10 years, she only raised a complaint for the first
time on 5 October
2010. That complaint was raised in the context of a
more specific complaint relating to her accommodation.
[11]
The applicant has not cited any specific
incident of sexual harassment by the principal. In his answering
affidavit, the principal
quite correctly points out that it is
therefore difficult for him to deal meaningfully with the generalised
allegations. He says
that they are in any event without any
foundation and points out that it is only after 10 years, when the
dispute about accommodation
arose, that she raised this allegation.
He submits that it is improbable that an educated person such as the
applicant, who is
"very assertive of her rights", would
have waited this long to report that she was being sexually harassed.
[12]
In
accordance with the rule in
Webster
v Mitchell
[1]
and
on the probabilities I have to accept the principal’s version.
On the evidence before me, the applicant has not established
that she
is being sexually harassed. She has therefore not made out a
prima
facie
case for the relief sought in subparagraph [2.2].
The warnings
[13]
I now turn to the two warnings complained
of. The applicant complains that no proper procedure was followed
before issuing the warnings;
and that they were "unlawful,
and/or irregular".
[14]
The
principal issued the first written warning on 15 October 2010. The
handwritten document barely makes grammatical sense. The
only details
of the conduct for which the warning is ostensibly issued, is the
following:
[2]
“
This
is a written in terms of the disciplinary process. Should you engage
in further misduct, defiance, insubordination and deformation
of
character. The written warning may be taken into account in
determining more serious sanction.”
It went on to say:
“
If
you object the warning, you may direct an appeal to [name] within
five working days.”
[15]
The final written warning issued on 22
October 2010 was based on the following:
“
The
nature of the misconduct is, insubordination, defiance and
deformation of character.” [
sic
]
[16]
The
legal framework for the discipline of educators is set out in
Schedule 2 to the Employment of Educators Act.
[3]
I will refer to that schedule as "the code", as Mr Mangena
did.
[17]
Clause 4(1)(a) of the code provides that
the functions to deal with misconduct can be delegated to the head of
the institution where
the educator is employed. In the case before
me, that is the principal.
[18]
If
the seriousness or extent of the misconduct does not warrant a formal
enquiry, the employer must convene a meeting where the
educator and,
if she so chooses, her trade union representative or another employee
who is based at the institution, are present.
The employer must give
reasons to the educator as to why it is necessary to initiate the
disciplinary procedure and the educator
or the educator’s
representative must be heard on the misconduct and reasons thereof.
The employer can only issue a written
warning or a final written
warning after hearing the educator or her representative. The
educator may not appeal against a warning
but may lodge an objection
in writing.
[4]
[19]
It is common cause that the principal did
not have a meeting with the applicant or her representative before he
issued the warnings
on 15 and 22 October 2010. He says that the
reason is that she refused to go to his office. There is no
indication in the warnings
themselves that he had made any effort to
give her a hearing. The only conclusion I can reach is that the
principal did not afford
the applicant a hearing in terms of the code
or in terms of the
audi alteram partem
principle.
[20]
Against
this background, I will deal with the requirements for an interim
interdict.
[5]
Prima facie right
[21]
I have already concluded that the applicant
has not established a prima facie right with regard to the complaint
of sexual harassment.
With regard to the warnings, though, I am
satisfied that the applicant has established such a right. The
principal did not afford
her a hearing in terms of the code. Nor did
he comply with the
audi alteram partem
principle generally.
[22]
But
that is not the end of the matter. Once the applicant has crossed
this threshold, I must still exercise my discretion whether
or not to
grant a temporary interdict. In the exercise of this discretion, I
must be satisfied that the applicant has proven an
actual or well
grounded apprehension of irreparable loss if no interdict is granted;
and I must have regard to the balance of convenience
and be satisfied
that the applicant has no other satisfactory remedy.
[6]
Apprehension of
irreparable harm
[23]
The only harm that the applicant is
suffering is that there are two warnings on her personnel file. These
warnings will lapse six
months after they had been issued, i.e. by
the end of April 2011. She is still employed and she has an
alternative remedy, as will
become apparent below. The harm she is
suffering is not irreparable.
Alternative remedy
[24]
Most
importantly in the exercise of my discretion, the applicant has an
adequate alternative remedy. The warnings that she complained
of fall
squarely within the definition of an "unfair labour practice",
i.e. any unfair act that arises between an employer
and an employee
involving "the unfair suspension of an employee
or any other unfair disciplinary action short of dismissal
in respect of an employee."
[7]
[25]
The
primary remedy is to refer an unfair labour practice dispute to the
relevant bargaining council, namely the Education Labour
Relations
Council (ELRC). Mr Mangena tried to persuade me that the ELRC did not
have the power to grant declaratory relief. That
is not correct. The
arbitrator (or panellist) may make any appropriate arbitration award
in terms of the Labour Relations Act,
including a declaratory
order.
[8]
[26]
The applicant has not made any effort to
pursue her primary remedy in terms of the Labour Relations Act in the
period from 22 October
2010 (when a final written warning was issued)
until she approached this court on an urgent basis to have the matter
heard today,
7 December 2010.
Balance of convenience
[27]
I am not satisfied that the prejudice the
applicant would suffer if the interdict is not granted, outweighs the
prejudice to the
respondents if it is. The applicant is at most
temporarily inconvenienced until she either pursue her remedies under
the LRA or
the warnings lapse in April 2011.
[28]
A temporary interdict remains a
discretionary remedy. I am not persuaded that I should exercise my
discretion in the applicant’s
favour, given the factors set out
above.
Costs
[29]
Both parties have asked for costs to follow
the result. In her application, the applicant went so far as to ask
for costs on a punitive
scale. Needless to say, as she has been
unsuccessful, she is not entitled to any costs. But neither am I
inclined to grant costs
to the respondents. Firstly, the principal
has acted with blatant disregard to his obligations as spelt out in
Schedule 2 to the
Employment of Educators Act. Secondly, the parties
have an ongoing relationship. The applicant is still employed by the
school.
The relationship, which is already a fraught one, needs to be
repaired. In law and fairness, I do not think that a costs order
would assist in that process.
Order
[30]
The application is dismissed. There is no
order as to costs.
_______________________
STEENKAMP
J
Date
of hearing:
7 December 2010
Date
of judgment:
9
December 2010
For
the applicants:
Mr
MN Mangena
Mapotene
Neville Mangena attorneys, Polokwane
For
the respondent:
Adv M
Zulu
Instructed
by:
The State Attorney
[1]
1948
(1) SA 1186 (W) 1189.
[2]
Spelling and grammar as in the original.
[3]
Act 76 of 1998
[4]
Clause 4(6) of the Code.
[5]
As set out in
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256 (C) 267 A-F
[6]
Prest,
The
Law and Practice of Interdicts
57.
[7]
LRA s 186(2)(b)
[8]
LRA s 138 (9) (c)