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[2011] ZALCJHB 196
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South African Municipal Workers Union and Others v Magalies Water (J 103/11) [2011] ZALCJHB 196 (28 January 2011)
not
reportable
Of
interest to other judges
Delivered
280111
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J103/11
In
the matter between:
SOUTH
AFRICAN MUNICIPAL
WORKERS
UNION
.....................................................................................
1
st
A
pplicant
PARTICK MOKONE &
11 OTHERS
........................................
2
nd
& further applicants
and
MAGALIES
WATER
....................................................................................
Respondent
JUDGMENT
VAN
NIEKERK J
[1] this is an
application, brought yesterday on an urgent basis, in which the
applicant seeks a final order declaring the current
suspension of the
individual applicants to be unlawful, and to interdict the respondent
from continuing to suspend the individual
applicants until such a
time the respondent has complied with the relevant provisions of
their contracts of employment. The applicant
had initially sought in
the alternative an interim order restraining the respondent from
suspending the individual applicants until
such time as the
bargaining council having jurisdiction over the parties decides the
fairness of the individual applicants’
suspension. The
alternative claim was abandoned and in circumstances where the
applicant elected to rely on the individual applicants
contractual
rights and, in effect, to contend that there suspension was unlawful
on the basis that it constituted a breach of contract.
[2] The material facts
are a matter of common cause. The individual applicants were
suspended from their employment on 19 July 2010.They
were
subsequently charged with various acts of misconduct. The respondent
convened a disciplinary enquiry before an independent
third party, a
Mr Levi Nakedi of firm Ncube Incorporated Attorneys. The disciplinary
enquiry commenced on 23 August 2010. On 8
December 2010, the
chairperson handed down a ruling in terms of which he found that the
respondent had failed to prove the guilt
of the individual applicants
on a balance of probabilities, and that they were accordingly not
guilty on all the charges brought
against them.
[3] On the day that the
ruling was handed down, the first applicant wrote to the respondent
advising that the individual applicants
would commence work on 9
December 2010. In response to this letter, the respondent's labour
relations manager advised that the
respondent "was not happy"
with the chairperson’s ruling that it was under considering the
ruling and that in the
interim, the individual applicants remain
suspended on full pay.
[4] When the applicants’
attorneys’ office opened after the holiday period, the
applicants’ attorneys addressed
a letter to the respondent
requiring that what was contended to be an unlawful and unfair
suspension be immediately terminated,
and that the individual
applicants be allowed to return to work. The respondent faxed a
letter to the applicant's attorney on 19
January 2011 in which the
respondent stated the following:
…
The
management of Magalies Water is not pleased with the outcome of the
disciplinary enquiry (that was instituted against your clients);
and
is currently considering various legal options and/or avenues in this
regard.
In consideration of
all the options we would approach the Labour court or any other
relevant court to have the outcome of the disciplinary
hearing put
aside for reasons that will be stated in our court papers.
In view of the
seriousness of the charges that your client said to answer to and
considering the new evidence which has come to
light in relation to
charges which were proffered against them, it is the position of the
water management that your clients remain
suspended under the
circumstances in order to protect the workplace as we are an
essential service…
That it is in the
light of the aforesaid that the Magalies Water management is of the
firm view that the continued suspension of
your clients is neither
unlawful nor unfair as they suffer no prejudice whatsoever…
[5] The respondent's
disciplinary procedure forms part of the terms and conditions of
employment of each of the respondent’s
employees. The code
requires the respondent to maintain a fair and consistent
disciplinary procedure, and to treat employees with
respect and
dignity. The code provides for suspension only as an alternative to
dismissal.
[6] The applicants’
claim, although not as clearly articulated in the papers as it might
have been, is that the continued
suspension of the second to 13th
applicants’ constitutes a breach of their contracts of
employment. As noted in paragraph
[1] they expressly disavow any
reliance on the alternative prayer in the notice of motion that in
the effect seeks interim relief
pending the outcome of the referral
to the bargaining council of a dispute concerning the respondent's
failure to unconditionally
reinstate the applicants’ following
the finding made by the chairperson of the disciplinary enquiry.
[7] In
Mogothle v
Premier of the North West Province and another
[2009] ZALC 1
,
after a review of the relevant authorities, the court said the
following:
In summary: each case
of preventative suspension must be considered on its own merits. At a
minimum though, the application of the
contractual principle of fair
dealing between employer and employee, imposing as it does take
continuing obligation of fairness
on employers when they make
decisions affecting their employees, requires first that the employer
has a justifiable reason to believe,
facing 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 integrity of any pending investigation
into the alleged misconduct or
some other relevant factor that would
place the investigation or the interests of effect parties in
jeopardy; and thirdly, that
the employee is given the opportunity to
state the case before the employer makes any final decision to
suspend the employee.
[8] In the present
matter, it is common cause that the second to 13th applicants were
not afforded an opportunity to be heard prior
to the employer's
decision to continue their suspension after the chairperson of the
disciplinary enquiry acquitted them of the
charges of misconduct that
were the subject of the enquiry. That alone constitutes a breach of
their employment contracts and renders
the continued suspension
unlawful on that basis. In regard to the substantive issues relevant
to these proceedings, the suspension
has not been affected in
circumstances where there is any ongoing investigation into
allegations of misconduct. On the contrary,
the second to 13th
applicants have been found not guilty of the allegations made against
them, after an enquiry conducted by an
independent third party
appointed by the respondent. The respondent has failed to disclose,
with any degree of particularity, the
‘new evidence’ to
which it refers in the letter of 19 January. The only substantive
reason proffered by the respondent
for the continued suspension is
the effect of its unhappiness with the outcome of the disciplinary
enquiry. The respondent's degree
of happiness or otherwise is not a
legitimate basis on which to continue to suspend the second to 13th
applicants. Even if it were,
the respondent has taken no steps to
address any concerns that it might have with the outcome of the
disciplinary hearing. I fail
to appreciate, in the circumstances, on
what basis it can be suggested, either substantively or procedurally,
that the continued
suspension of the second to 13th applicants is
fair.
[9] In
Mogotlhe’s
case (
supra)
the court referred to a tendency by employers
to regard suspension as a legitimate measure of first resort on the
most groundless
suspicion of misconduct, or worse still, to view the
suspension as a convenient mechanism to exclude employees from the
workplace.
The court also referred to the statement by Nugent JA in
Minister of Home Affairs and others v Watchenuka and another
2004 (4) SA 326
(SCA):
The freedom to engage
in productive work – even where that is not required in order
to survive – is indeed an important
component of human dignity…
For mankind is pre-eminently a social species with an instinct for
meaningful association. Self
esteem and the sense of self-worth –
the fulfilment of what it is to be human – is most often bound
up with being accepted
as socially useful.
[10] The nexus between
the freedom to engage in productive work and the right to dignity
could not be drawn in clearer terms. To
the extent that the
respondent contends that this application is not urgent because the
applicants proffer only the risk of reputational
damage as a grounds
for urgency ignores the role that the right to dignity must
necessarily play in circumstances such as the present.
In any event,
it seems clear to me from the papers that the applicants’ do
not rely only on potential reputational damage
to contend that their
application is urgent. The conduct of the respondent must be seen in
context. The second to 13th applicants
have remained on suspension
since 19 July 2010, more than six months ago. The finding by the
chairperson of the disciplinary enquiry
disposes of any possible
basis on which their continued suspension might be justified. They
have, within a reasonable time, sought
to challenge the respondent's
decision and I am satisfied that in these circumstances, the
application ought to be treated as urgent.
[11] Insofar as the
respondent claims that the applicant sought to be denied the final
order that they seek on accounts of safe
failure to satisfy the court
that they have no alternate remedies, this submission overlooks the
applicants’ reliance on
the terms of the second to 13th
applicant’s contracts of employment. The applicants are
perfectly entitled to claim, as they
have, that the respondent's
refusal to reinstate the second to 13
th
applicants
following the outcome of the disciplinary hearing constitutes an
unfair labour practice. But that does not mean, as
the respondent
appears to suggest, that any bargaining council arbitration
proceedings that might be convened constitutes an adequate
alternative remedy.
[12] Finally, in relation
to costs, I see no reason why costs should not follow the result. It
is not apparent to me from the papers
that the first applicant and
the respondent are engaged in a collective bargaining relationship,
or that an order for costs in
the present circumstances will
necessarily prejudice that relationship. The fact remains that the
second to 13th respondents were
for some five months subjected to the
ordeal of a disciplinary enquiry, and that more than a month later,
following their acquittal
by an independent enquiry, they remain
denied access to their workplace. Of particular concern in this
regard is the complete absence
of any legitimate basis for the
continued suspension. I have dealt with this issue in a different
context, but in the context of
a consideration of what is fair in
relation to any order for costs, I cannot ignore that the only
substantive basis proffered by
the respondent for its actions is its
own unhappiness, coupled with a failure to take any substantive
action available to it (assuming
that such action is available) to
challenge the outcome of the enquiry since the chairperson made his
finding known on 8 December
2010.
[13] For the above
reasons, I am satisfied that the applicants have made out their case
and are entitled for the relief that they
seek and I accordingly
grant the following order:
The continued suspension
of the second to 13th applicants constitutes a breach of their
contracts of employment.
The respondent is
interdicted and restrained from continuing to suspend the second to
13th applicants until such time as it has
complied with the terms of
their employment contracts.
The respondent is to pay
the costs of these proceedings.
Andre van Niekerk
judge of the Labour
court
Date of application: 27th
January 2011
Date of judgement: 28th
January 2011
Appearances:
For the applicant: Ms R
Edmonds, instructed by Ruth Edmonds attorneys.
For
the respondent advocate C Orr, instructed by Van Velden Duffy
attorneys.