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[2011] ZALCJHB 11
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Mahlalela v Office of the Pension Funds Adjudicator (J283/2011) [2011] ZALCJHB 11; [2011] 6 BLLR 587 (LC); (2011) 32 ILJ 1932 (LC) (23 February 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE
NO J283/2011
blessing
mahlalela
Applicant
and
OFFICE
OF THE PENSION FUNDS ADJUDICATOR
Respondent
__________________________________________________________________________
JUDGMENT
__________________________________________________________________________
LAGRANGE, J
Introduction
This is an urgent
application. The applicant is an Assistant Adjudicator working for
the respondent. Since late last year the
applicant has been at the
forefront, as he describes it, in voicing out the concerns of
employees about perceived irregularities
and disparities in salaries
paid to Assistant Adjudicator's and Senior Assistant Adjudicator's
employed by the respondent.
On 17 January 2011,
a petition was sent to the Financial Services Board in which these
grievances were expressed. The same day,
the applicant and the
acting Pension Fund Adjudicator, Ms Del la Rey, had a confrontation
of sorts. Following the incident, the
applicant laid a charge of
assault and intimidation with the police against Del la Rey. On his
return from the police station,
the applicant found a letter on his
desk from the Senior Assistant Adjudicator, Mr Maharaj, advising him
that his suspension
was being contemplated and giving him until
15h00 hours to make representations why he should not be suspended.
This he did despite
the pressure of time, but approximately 30
minutes later he received a letter of suspension.
The next day he
consulted with his lawyers who sent a letter to the respondent
advising that his suspension was unlawful, the
reason being that the
person suspending him was not authorised to do so because only the
Acting adjudicator had the necessary
authority. A letter in reply
from the respondent's attorneys did not engage the applicant on the
question of Maharaj's authority.
A further letter dated 20 January
2011 was written to the respondent’s attorneys reiterating the
allegation of the unauthorised
nature of his suspension and
mentioning other issues, including a claim that his continued
suspension was in breach of the provisions
of his contract of
employment. The same letter called upon the respondent to revoke the
suspension with immediate effect failing
which he would approach the
High Court or the labour court on an urgent basis for relief.
The respondent was
unmoved by this threat. On 10 February 2011 it issued the applicant
with a notice of a disciplinary enquiry
in which he would was called
to answer 116 charges. Of the charges, one related to an incident of
alleged insubordination committed
on 17 January 2011 and the other
related to the publication of a newspaper article reportedly
containing statements made by the
applicant which were "exaggerated,
in accurate and/or untruthful" which the respondent claimed had
the effect of bringing
it into disrepute. Somewhat surprisingly, all
the other charges related to alleged dereliction of duties or poor
work performance
between April and mid-October the previous year.
This application
was served six days later. In essence, the relief sought is to stop
the respondent from proceeding to hold the
disciplinary enquiry
which was initially scheduled to take place on 21 and 22 February
2011. The relief sought was on an interim
basis pending the return
day on which the applicant would apply to have the enquiry quashed
entirely. In argument before this
court, the applicant's counsel
submitted that his client was entitled to have his suspension
lifted, as a form of alternative
relief.
The matter
originally came before the honourable Justice Lallie, AJ on 17
February 2011. On that occasion, the parties agreed
to postpone the
matter until 22 February 2011 to allow answering and replying
affidavits to be filed. The enquiry was also deferred
pending the
outcome of this application.
The legal basis
of the applicant's claim
In his replying
affidavit, the applicant expressly disavows reliance on any of his
rights under the Labour Relations Act 66 of
1995 ('the LRA').
Instead, he relies on a common-law contractual obligation on an
employer to act fairly in its dealings with
employees. He argues
that this obligation has a substantive and procedural dimension.
Apart from relying
on a supposed contractual right to fairness, the applicant also
contends that, in effect, his suspension was
unlawful because the
person who purportedly suspended him lacked the necessary authority
to do so. In court, it was submitted
that if the suspension lacked
authority, then the enquiry which was premised on the suspension
could also not proceed.
Other ancillary
arguments were advanced by the applicant’s counsel, Mr
Dlamini. One such argument was that the enquiry into
the charges
relating to poor performance could not proceed because the
respondent had not complied with its Policies and Procedures
Manual
in that the respondent had failed to adopt prior, less punitive,
measures to try and address his alleged non-performance.
As I
understood the argument, the applicant was suggesting that this was
also in breach of his contractual right to fairness.
The respondent
firstly attacks the applicant's contention that he was entitled to
proceed on an urgent basis. The main thrust
of the respondent’s
argument here is that if, as the applicant contends, his unlawful
suspension is an act on which the
enquiry is premised, then the
applicant ought to have brought an urgent application challenging
his suspension much earlier,
instead of a month after it occurred.
If this was the only basis on which the applicant is challenging the
respondent’s
actions, the respondent might have a point. In
fairness to the applicant it must be said that at least until about
the end of
January 2011, the applicant was attempting to persuade
the respondent to revive his suspension. When this application was
finally
brought, the applicant challenged the impending disciplinary
enquiry itself which he had any length of on 10 February 2011. In
the circumstances, I believe the applicant has acted with sufficient
celerity in bringing this application. But there is another
sense in
which this application lacks urgency not because it is too late, but
it is too early. This is dealt with below.
However, the
substantive merits of the application do not establish a prima facie
right to the relief sought for the reasons which
follow. In the
first place, the applicant relies on his contention for a
contractual right to fairness on the judgement of the
honourable
Justice Van Niekerk, J in the
Mokgothle
case.
1
In
that case, the court held that a trio of decisions by the Supreme
Court of Appeal had established an employee’s contractual
right to fair dealing that can be enforced by the Labour court under
the provisions of
section 77(3)
of the
Basic Conditions of
Employment Act 75 of 1997
, which exists independently of any
statutory rights to protection against unfair labour practices.
2
However,
since
this decision, the SCA decisions referred to in
Mokgothle
have
been revisited by SCA in its recent decision in the
McKenzie
case.
3
In
that case the SCA unequivocally held that, in the absence of
specific provisions in a contract of employment to the contrary,
an
employer did not owe an employee a contractual obligation to act
fairly.
4
Wallace,
JA, distinguished the authority of the previous SCA decisions
referred to by Van Niekerk, finding in effect that those
decisions
did not establish the existence of a contractual right to fairness.
5
It
might be, that there could be sound reasons not to follow the
apparently authoritative dicta in Mackenzie, but none were advanced
and accordingly I must accept for present purposes that the latest
pronouncement of the SCA on the nonexistence of a contractual
duty
of fairness must prevail. Consequently, in so far as the applicant
relies on a contractual obligation of fair dealing, he
cannot
succeed. It remains to consider whether there are any other grounds
on which he might still assert a
prima
facie
right
to relief,
though
open to doubt.
The
applicant made much of the supposed lack of authority of Maharaj to
suspend him. On the basis that the suspension lacked authority,
the
applicant argued that the consequent disciplinary enquiry could not
be valid. I agree with Mr Van As,
who
appeared for the respondent, that it simply does not follow that if
an employee's suspension is invalid the subsequent disciplinary
enquiry will be invalid too. As mentioned above, the applicant also
seeks alternative relief declaring the suspension invalid.
In its
answering affidavit the respondent denies that Maharaj lacked
authority because the Acting Adjudicator had in fact delegated
the
necessary authority to him. The applicant suggests that if this had
been the case, the respondent would in all probability
have made
this point in its earlier correspondence with him, when the
applicant was challenging his suspension on this very basis.
Having
regard to that correspondence it is clear from the respondent's
attorneys that they kept their responses to an absolute
minimum and
avoided engaging with the applicant on his contentions. In the
answering affidavit however the respondent claims
that the necessary
authority was delegated.
The
applicant argued that such authority cannot be properly delegated by
the Acting Adjudicator in terms of the Pension Fund Act,
24 of 1956
('the PFA'). In support of the applicant's argument, his counsel, Mr
Dlamini, cited certain provisions of the PFA.
Section 30B(2) of the
PFA states: "
The functions of the
Office [of the Pension Funds Adjudicator] shall be performed by the
Pension Funds Adjudicator.
" The
applicant argued that this provision means that only the Pension
Fund Adjudicator can perform the functions of the
Office and could
not delegate the same to someone else. However, section 30Q dealing
with the powers of the Adjudicator permits
the Adjudicator, with the
concurrence of the Financial Services Board, to delegate any of his
or her functions to an employee
save for his or her functions
relating to the disposal of complaints in terms of section 30E,
which is the main object of the
Adjudicator's office in terms of
section 30D of the same Act.
The
respondent also argued that in order to suspend or discipline staff
it was not even necessary for the Adjudicator to specifically
delegate such powers to other management staff. The power to take
disciplinary measures is not one of the main functions of the
Adjudicator assigned to her in terms of the PFA, and accordingly the
requirements of formal delegation in terms of the PFA do
not apply.
In effect, the respondent argued that the initiation of disciplinary
steps at whatever level of management is a normal
incident of the
employment relationship, the authority for which is not derived from
the PFA. In any event, section 30Q(g) provides
that the adjudicator,
with the concurrence of the Financial Services Board, may in general
do anything which is necessary or
expedient for the achievement of
his or her objects and the performance of his or her functions. As
things stand on the papers,
I must accept that Maharaj did have the
necessary authority to suspend the applicant, based on the
principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
6
,
given
that this is in truth an application for final relief.
The applicant also
argued that because the respondent replaced the adjudicator as the
initiator of the enquiry this indicated
a concession by the
respondent that the enquiry had not been properly convened. The
applicant had objected to the adjudicator
playing the role of
initiator on the basis that she had an interest in the proceedings.
It is certainly not desirable for one
of the complainants in a
disciplinary enquiry to also drive the prosecution of the employer's
case, particularly as that individual
may be required to give
evidence, but in so far as it might have implications for the
fairness of the enquiry, these could not
be as serious as when where
an interested party had been appointed as the chairperson of the
enquiry.
Lastly,
the applicant argues that the failure of the respondent to adopt
other measures to deal with his alleged performance before
convening
a disciplinary enquiry which could lead to his dismissal, amounts to
a breach of contract. In this regard, he relies
on the respondent’s
code of conduct which deals amongst other things with less punitive
approaches to resolving disciplinary
problems. In terms of paragraph
5(b) of his letter of appointment it is stipulated that his contract
of employment is subject
amongst other things to the internal
policies and procedures of the respondent. The prefatory section of
the Staff Policies and
Procedural Manuals of the respondents, in
setting out the purpose of the policies and procedures states: "
The
following Human Resource Policies and Procedures serves as
guidelines that provide a framework for the application of fair
and
consistent human resource practices within the OPFA.
"
At
best therefore for the applicant, the provisions which he cites in
his founding affidavits at paragraph 18 are guidelines and
not
mandatory obligations. In any event, his contentions that no less
punitive measures were adopted before resorting to a disciplinary
enquiry is contested by the respondent, and on the principle in
Plascon-Evans
the
respondent's version must be accepted.
Existence of
alternative remedies
A
pertinent point made by the respondent is that the objections raised
by the applicant about the pending enquiry preceding have
not even
been tabled before the chairperson of the enquiry to consider. I
agree that this should have been the first recourse
of the applicant
before considering an approach to this court. Equally significant,
is the question whether it is appropriate
for the labour court to
intervene in enquiries which are incomplete. In this regard the
decision of the LAC in the case of
Booysen
v The Minister of Safety and Security & other
[2011]
1 BLLR 83
(LAC)
is
relevant. In this recent judgment,
the
LAC upheld the jurisdiction of the Labour court to interdict any
unfair conduct,
including
disciplinary action. Nevertheless, Tlaletsi, JA, cautioned:
“
However,
such an intervention should be exercised in exceptional
circumstances...Among the factors to be considered would be whether
failure to intervene would lead to grave injustice or whether
justice might be attained by other means.
”
7
The applicant has
not made out a basis for this court to intervene to prevent a grave
injustice. I am not persuaded that the applicant
has established
prima facie rights though open to doubt and which deserve immediate
protection. I also believe this application
was premature in any
event. He is also not without alternative remedies.
Costs
The respondent
seeks costs on a punitive scale. I accept that the applicant has
approached this court on a very slender substantive
basis. On the
other hand, it was only when the respondent filed its answering
affidavit that it addressed his argument regarding
the authority of
Maharaj to suspend the applicant. The applicant and the respondent
are also currently still in an employment
relationship and a
punitive cost award at this juncture is unlikely to improve matters.
However, I agree that the applicant ought
to have reconsidered his
position after receiving the answering affidavit of the respondent
and could have avoided the necessity
of the hearing yesterday.
Accordingly a cost award is justified albeit not as extensive as
sought by the respondent.
Order
The following order
is made:
[22.1] the urgent
application is dismissed, and
[22.2]
t
he applicant is ordered to pay the respondents
costs of preparation and representation on 22 February 2011.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing : 22 February 2011
Date
of judgment: 23 February 2011
Appearances:
For
the Applicant: M W Dlamini instructed by Chris N Billings Attorneys
For
the Respondents: M Van As instructed by Bowman Gilfillan Inc.
1
Mokgotlhe
v Premier of the North West and others
(2009)
30
ILJ
605
(LC)
2
Mokgothle
at 615, par [30])
3
South
African Maritime Authority v McKenzie
2010 (3) SA 601
(SCA)
4
McKenzie
at 628, par [56]
5
McKenzie
at 622-628, pars [38] – [55]
6
At
634G-I
7
At
99, [54].