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[2011] ZALCJHB 173
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POPCRU obo Mbokane v Minister of Correctional Service and Another (JR 133/2011) [2011] ZALCJHB 173 (3 February 2011)
Not reportable
Delivered 030211
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO JR 133/2011
In the matter between:
POPCRU obo IV
MBOKANE Applicant
and
THE MINISTER OF
CORRECTIONAL SERVICES First Respondent
THE NATIONAL HEAD OF
CORRECTIONAL
SERVICES Second
Respondent
JUDGMENT
_________________________________________________________________
VAN NIEKERK J
[1] This is an
application in which the applicant, acting on behalf of its member
Mbokane (to whom I shall refer as ‘the individual
applicant’),
seeks to set aside the latter’s suspension.
[2] The individual
applicant is employed by the second respondent as a professional
nurse at the Baviaanspoort management area.
He is also a shop
steward. On 19 January 2011, the individual applicant submitted a
collective grievance to the employee relations
manager. The grievance
concerned a Mr Ndou, the centre coordinator, and made serious
allegations of misconduct against him. On
25 January 2011, Mr Ndou
addressed a letter to the individual applicant. In the letter, the
individual applicant was advised that
his suspension was being
contemplated, and that he was afforded to furnish arguments as to why
he should not be suspended on charges
relating to leaving the
workplace without permission, insubordination, inciting members and
the submission of forged documents
at a disciplinary hearing. The
individual applicant was given until 3pm on the afternoon of 26
January 2011 to make representations
as to why she should not be
suspended. A union shop steward then requested further particulars
from the second respondent in respect
of all four charges that were
the subject of the pending disciplinary action, and also the basis
for the individual applicant's
suspension. The matter was also
referred to the union’s head office and unaware that the shop
steward had already requested
further particulars, the union’s
legal adviser prepared a request for further particulars of the
charges so that representations
could be made on behalf of the
individual employee. The respective requests read as follows:
1. Leaving the place
of work without permission: we want to know who was giving
permission?
2. Insubordination: we
want to know insubordination to whom and where?
3. Inciting members:
incitement for what and where?
4. submitting
fraudulent documents as evidence in a disciplinary hearing: we need
to know the specific fraudulent documents alleged
to be submitted by
Mbokane?
and
Leaving place of work
without permission
has it been
ascertained where the incumbent had gone before taking disciplinary
steps:
is it conceded that
the member is a shop steward:
has disciplinary
steps already been taken against the member.
Is the contemplated
suspension in respect of leaving the workplace without permission.
Insubordination dated
19/01/2000 and
how did the member
insubordinate himself;
did he insubordinate
himself as a member or as a shop steward;
is the contemplated
suspension in respect of the insubordination.
Inciting members on
the 17-18/01/2011
which members did he
incite;
what did he incite
members to do;
was this for a
continuous period of two days on the 17th and 18th;
where there members
incited;
is the contemplated
suspension in respect of the incitement.
Was this misconduct
as a member or a shop steward.
Was the union
informed.
Is the contemplated
suspension in respect of the incitement.
Submission
of fraudulent documents as evidence
is this misconduct as
a member;
was this misconduct
as a member or a shop steward.
Was the union
informed.
[3] The second respondent
failed to respond to either of the requests for further particulars
and on 27 January 2011, Ndou issued
a letter of suspension. On 27
January 2011, the collective grievance was discussed with the deputy
director, who proposed that
a formal investigation would be conducted
into the allegations made against Ndou.
[4] The applicant
contends that the charges against the individual applicant emanate
from the collective agreement grievance submitted
against Ndou whom,
it is claimed, abused his authority when issuing the notice of
contemplated suspension and the notice of suspension.
In essence, the
applicant claims further that the individual applicant is being
victimised by Ndou for submitting the grievance.
[5] The applicant` claims
a clear right to the effect that an employee is entitled to be heard
before a final decision is taken
that prejudicially affect that
employees rights. In particular, the applicant claims that the
audi
alteram partem
rule includes the right to a fair and reasonable
opportunity to make representations as to why an employee should not
be suspended,
the right to request clarity on the charges, and the
right to be provided with sufficient information to enable the
employee to
make meaningful representations in response to the
allegations. The applicant contends that the notice of contemplated
suspension
in the present instance is vague and embarrassing, and
lacks sufficient particularity to enable the individual applicant to
make
meaningful representations on the charges levelled against him.
In so far as the individual applicant was denied a proper opportunity
to make representations, the applicant claims that there is no other
adequate remedy at his disposal, and that for these reasons,
the
individual applicant’s suspension should be set aside.
[6] When the application
was argued, I enquired from Adv Basson, who represented the
applicant, as to the legal basis on which the
relief sought was
claimed. I was referred to the decision of this court in
Baloyi v
Department of Communications and others
( 2010) 31
ILJ
1142 (LC). In that matter, the court held that an employee has the
right to be heard before a decision is taken to suspend that
employee. The basis for the decision appears to be the proposition
that the
audi
rule is part of our law and applies to the
suspension of employees. The court made reference to
Modise v
Steve's Spar Blackheath
2001 (2) SA 406
(LAC) in which it was
held that the
audi
rule is part of the rules of natural
justice, and deeply entrenched in our law.
[7] Adv Basson affirmed
that the applicant's claim was not that the respondent had committed
an unfair labour practice (an unfair
suspension is an unfair Labour
practice – see s 186 (2) (b)), or that the applicant was
contending that the second respondent
had breached the individual
applicant's contract of employment, or that the claim was framed as
one in which the individual applicant
contended that he had been
subjected to an occupational detriment as defined in the Protected
Disclosures Act. The applicant's
claim rested simply and solely on
the right to be heard prior to suspension.
[8] I do not understand
the
Baloyi
decision (or any other judgments by this court in
which urgent relief has been sought in respect of suspensions) to
dispense with
the obligation, in an application such as the present,
to establish a prima facie right (in the case of interim relief) or a
clear
right to the relief sought, in the case of an application for
final relief. It is accordingly necessary in the present instance
for
the applicant to establish a right to a hearing that arises, for
example, from a contract of employment, a collective agreement,
or a
statute. In other words, the right to be heard in does not exist in
the abstract, to be read down into cases such as the present
–
its legal foundation must be established and articulated if it is to
be enforced in applications such as the present.
[9] In the absence of a
proper legal foundation from which the right to be heard can be
derived, the applicant has failed to establish
a clear right and in
these circumstances, the application must fail.
[10] Even if I am wrong
in coming to this conclusion, in my view, the individual applicant
was afforded sufficient information for
him to make meaningful
representations in regard to the proposed suspension. The right to a
hearing prior to suspension is a process
of dialogue and reflection
between the parties
(See Mogothle v Premier of the North West
Province & another [2009] 30 ILJ (LC))
. While this right
incorporates the right to be placed in possession of details of the
alleged misconduct that forms the basis of
any contemplation of
suspension, this is not a right, as the applicant appears to suggest,
to be furnished with particulars as
one might for the purposes of a
criminal or civil trial. The test is whether the employee concerned
is possessed of sufficient
information to make representations as to
why he or she should not be suspended. In the present matter, the
letter of suspension
sets out adequately the charges of misconduct
against the individual applicant and places him in a position to make
representations.
[11] In coming to the
above conclusion, I make no finding as to whether it was justifiable
for the second respondent to suspend
the individual applicant. The
circumstances in which an employee may be unfairly suspended is dealt
with in
Mogothle (supra)
and other judgments by this court.
Nor should my ruling in this application be construed as a bar to any
further application that
the applicant may wish to bring identifying
the legal basis, be it statutory, contractual or otherwise, on which
the setting aside
of the individual applicant's suspension is sought.
I accordingly make the
following order:
The application is
dismissed
There is no order as to
costs.
Andre Van Niekerk
Judge of the Labour
court
Date of application: 2
February 2011
Date of judgement 3
February 2011
Appearances for the
applicant: Advocate Basson instructed by Grosskopf Attorneys
For the respondents
Advocate T Masevhe instructed by the State Attorney.