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[2011] ZALCJHB 195
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SAMWU obo Mathabela v Dr JS Moroka Local Municipality (J2242/10) [2011] ZALCJHB 195 (28 January 2011)
Not reportable
Of interest to other
judges.
Delivered 280111
INTHE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J2242/10
In the matter between:
SAMWU OBO MONICA
MATHABELA
..........................................................
Applicants
and
DR JS MOROKA LOCAL
MUNICIPLAITY
..................................................
Respondent
JUDGMENT
VAN NIEKERK J
[1] This is an urgent
application brought yesterday. I indicated that I would make a ruling
this morning. This is my ruling and
brief reasons for it.
[2] The applicant
initially sought a range of relief including a declaration that the
respondent was in contempt of an order of
this court made on 10
November 2010, declaring that the individual applicant's contract of
employment (specifically clause 6.6.2,
6.6.4 and 6.6.10) are binding
on the respondent, declaring the current suspension of the individual
applicant to be unlawful and
declaring a disciplinary enquiry
convened for 10am today, 28 January 2010, to be unlawful. When the
application was heard, the
applicant's abandoned the relief sought in
respect of the contempt issue and what was ultimately left to be
decided is the lawfulness
of the individual applicant’s
suspension, and whether the respondent is entitled to conduct a
disciplinary enquiry on the
terms that it intends.
[3] I deal first with the
lawfulness of the disciplinary hearing. A brief factual background is
necessary. On 10 November 2010,
this court, per Lagrange J, granted a
final order in terms of which
inter alia
it was declared that
the respondent was bound by the individual applicants contract of
employment and in particular, by the applicable
terms of the
disciplinary code and procedure of the South African Local Government
bargaining council. The respondent was interdicted
from proceeding
with a disciplinary enquiry into certain charges of misconduct
brought against the individual applicant, and the
respondent was
ordered to uplift her suspension. The basis of the order was that the
individual applicant’s contract of employment
obliged the
respondent to comply with its disciplinary code and procedures, and
if there were none, to comply with the disciplinary
code and
procedure of the South African Local Government bargaining council,
as well as with the Labour Relations Act, 66 of 1995
(see clause 15.4
of the contract of employment). It was common cause then, as it is in
these proceedings, that the respondent does
not have its own
disciplinary procedure, and that the provisions of the bargaining
council’s procedure therefore apply. The
relevant provisions of
the code read as follows:
6.6 In the event of
more serious misconduct, as referred to in clause 6.5 above:
6.6.1 the municipal
manager or his authorised representative shall constitute a
disciplinary hearing by appointing a suitable person
to serve as the
presiding officer.
6.6.2 A person
appointed to serve as the presiding officer should be at a level more
senior then the employees who is/are being
charged and should be from
within the Department, or from any other Department of that
municipality, or from another municipality,
or be a full-time SALGA
official or in the full-time employee of Provincial Government or
National Government provided that such
person is not an employee of
the judiciary.
6.6.3 The municipal
manager or his authorised representative shall also appoint a person
to be referred to as the employer representative
to represent the
employer and to serve the function of prosecution.
6.6.4 A person
appointed to serve as the employer representative should be at a
level more senior then the employees who is/are
being charged and
should be from within the Department, or from any other Department of
that the disparity, or from another municipality,
or be a full-time
SALGA official, or in the full-time employee of Provincial Government
or National Government provided that such
person is not an employee
of the judiciary.
[4] In the matter before
Lagrange J, the applicants challenged the appointment of legal
practitioners as the chairperson of the
enquiry and the
representative of the employer respectively. The court found that the
composition of the disciplinary enquiry to
which the individual
applicant had been subjected was irregularly constituted, as it was a
breach of the procedure expressly incorporated
into the contract of
employment. Reasons for the judgment were filed on 15 December 2010.
On 19 January 2011, the applicant filed
an application for leave to
appeal against the ruling. I need not canvass the merits of that
application. The present application
has its roots in a decision made
by the respondent during December to prefer new charges against the
individual applicant. A notice
of a disciplinary enquiry, in respect
of tehse charges, was served on the individual applicant in the form
of a letter dated 21
January 2011. In terms of that letter, the
individual applicant is required to attend a disciplinary hearing to
be held in Sandton,
chaired by advocate J Nalane. The same letter
advises that the prosecutor will be Ndhlovu AJ Attorneys.
[5] The applicants in
essence raise the same argument that was raised before Lagrange. They
contend that the disciplinary enquiry
initiated by the respondent on
the new charges of misconduct is a breach of the individual
applicant’s contract of employment.
In particular, they contend
that the respondent is obliged to appoint a chairperson from the
ranks of those persons described in
clause 6.6.2 of the code, and
that the respondent’s representative may be drawn only from the
ranks of those persons referred
to in clause 6.6.4. The respondent's
submissions are drawn from the merits of the application for leave to
appeal filed in respect
of the judgment by Lagrange J. The first
point is a jurisdictional one. The respondent submits that the issue
before the court
is one that concerns the application and
interpretation of a collective agreement, and that in terms of
section 24 (8) of the LRA,
the dispute must be referred to the
bargaining council. I am not persuaded that this is the case. The
applicant relies on a term
of her own contract. The relevant term of
the contract requires the respondent to apply the terms of the
disciplinary code and
procedure that is established by a collective
agreement concluded under the auspices of the bargaining council. It
is common cause
however that the applicant is not bound by the
collective agreement, in the sense that she does not fall within the
bargaining
unit in respect of which that agreement applies. The
individual applicant does not seek to have the collective agreement
enforced
or interpreted. The rights she seeks to enforce are not
based on the collective agreement
qua
collective agreement –
its terms are terms of her contract, and she seeks to hold the
respondent to the latter. In other words,
the terms of the agreement
are and remain contractual terms as between the individual applicant
and the respondent.
[6] The respondent
contends further that it is not possible for it to comply with clause
6 of the individual applicant’s contract.
In particular, and
insofar as clause 6.6.1 requires the municipal manager or his (sic)
authorised representative to constitute
the hearing, the respondent
claims that the individual applicant, being the municipal manager,
cannot constitute the hearing. Similarly,
in relation to clause
6.6.3, the respondent contends that the individual applicant, as
municipal manager, cannot appoint a person
to be the prosecutor. In
these circumstances, the respondent contends that it has the right to
appoint an independent third party
to preside at the hearing, and to
appoint its attorneys as its representative.
[7] I fail appreciate on
what basis it might be contended that the terms of the contract
should not be enforced or, put another
way, that the respondent is
entitled to appoint a person other than a person referred to in the
contract as the chairperson of
the disciplinary enquiry and
prosecutor respectively. The terms of the individual applicant’s
contract clearly preclude the
respondent from appointing a practising
advocate and a practising attorney to either of the roles concerned.
The terms of the contract
clearly anticipate circumstances where the
chairperson of the disciplinary hearing and the prosecutor are to be
appointed by a
person other than the municipal manager, and that
where a municipal manager is concerned, a hierarchy is established
that is sufficiently
expansive to accommodate the municipal manager’s
status. It simply remains for the respondent, in the form of the
person
currently exercising the powers of municipal manager or his or
her authorised representative, to make the necessary appointments
from the ranks of the officials concerned. That is what the parties
have agreed, and the respondent has advanced no other cogent
reasons
why it is necessary, in the absence of the individual employee’s
consent, to engage the services of counsel and of
its attorneys in
order for the charges of misconduct made against the individual
applicant to be adjudicated. The individual applicant
affirms that
she is ready and willing to face a disciplinary enquiry – she
insists that it be convened and conducted in terms
of her employment
contract. That is her right.
[8] For the above
reasons, it is my view that the form of the disciplinary enquiry
contemplated by the respondents letter dated
21 January 2011
constitutes a breach of the contract of employment between the
individual applicant and the respondent and that
the applicant is
entitled to the relief that they seek in respect of that enquiry.
[9] Turning next to the
relief sought in respect of the individual applicant's suspension, it
is common cause that the applicant,
who has effectively in terms of a
decision taken by the respondent on 1 December 2010. That decision,
as i have indicated above,
was taken in circumstances where the
respondent adopted a resolution to comply with the order made by
Lagrange J and lifted the
precautionary suspension of the individual
applicant. Immediately thereafter, the respondent adopted a
resolution to institute
fresh disciplinary action (that referred to
above) against the individual respondent in the light of
recommendations emanating
from what has been referred to as the
Gobodo report. At the same time, the respondent resolved again to
suspend the individual
applicant. That decision was the subject of
the proceedings before Basson J on 14 December 2010 when a rule nisi
was granted interdicting
the respondent from continuing to suspend
the individual applicant until such time as there was compliance by
the respondent with
the terms of the her contract of employment and
with the relevant provisions of the bargaining council's code. The
rule nisi was
confirmed on 17 December 2010. On 17 December 2010, the
respondent lodged an application for leave to appeal against the
judgment
and order of Basson J.
[10] In short, what I
have before me is an order granted by Basson J to the effect that the
suspension of the individual applicant
is unlawful, and a notice of
application for leave to appeal against that order. The rule that
ordinarily applies (i.e. that a
notice of appeal suspends the
operation of the order that is the subject of the appeal) suspends
the operation of the order made
by Basson J. In these circumstances,
I do not think that it is appropriate for me to make any further
order in respect of the individual
applicant’s continued
suspension. Of course, it is open to the individual applicant, should
she so wish, to bring an application
for the implementation of the
order pending the outcome of any appeal. Despite the invitation by Ms
Edmonds, who appeared for the
applicants, to make in order to this
effect on the basis of the papers before me, this is not an issue
specifically addressed in
these papers, and in these circumstances,
it is appropriate that a discrete, substantive application be brought
if the applicants
so elect.
[11] Finally, this brings
me to the issue of costs. Mr Lengane, who appeared for the
respondent, submitted that the rules established
by
NUM v East
Rand Gold and Uranium Ltd
should apply, and that in view of the
collective bargaining relationship that exists between the parties,
it is appropriate that
there should be no order as to costs. Of
course, this is a relevant factor, but I bear in mind too that of the
applicants have
partially succeeded in obtaining the relief that they
initially sought, and to that extent, that the respondent has been
partially
successful in resisting the applicant's claims. In these
circumstances, it seems to me that the requirements of fairness
dictate
that there should be no order as to costs. Of course, the
only persons prejudiced by an order to this effect are the ratepayers
of the respondent, who will ultimately bear the costs of the
opposition to this application. This is the fifth occasion on which
this dispute, in one form or another, finds itself before this court,
in circumstances where the charges of misconduct brought
against the
individual applicant have yet to be the subject of any form of
adjudication. I fail to appreciate why some six months
after the
individual applicant’s initial suspension, a properly convened
a disciplinary enquiry has yet to be constituted.
I would urge the
parties to ensure that this matter is brought to an expeditious
conclusion, and that the statutory objectives
of expeditious dispute
resolution are met.
I accordingly make the
following order:
The constitution of the
disciplinary enquiry convened on 28 January 2011 does not comply
with the individual applicant’s
contract of employment, and
the respondent’s conduct in persisting with the enquiry is a
breach of the contract..
The respondent is
interdicted and restrained from proceeding with the enquiry referred
to in paragraph 1.
There is no order as to
costs.
Andre van Niekerk
judge of the Labour
court
Date of application: 27
January 2011
Date of judgement 28
January 2011
Appearances:
for the applicant: Ms:
Edmonds from Ruth Edmonds attorneys.
For the respondent: Adv
Lengane,, instructed by Ndhlovu AJ Attorneys