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[2011] ZALCJHB 27
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Sekwati v Masiye and Others (J291/2011) [2011] ZALCJHB 27; (2011) 32 ILJ 2219 (LC) (24 February 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE
NO J291/2011
Lieutenant
colonel
D.
S. Sekwati
Applicant
and
BRIGADIER
N. P. MASIYE, STATION COMMANDER, S A POLICE SERVICE, BRAKPAN
1
st
Respondent
LIEUTENANT
GENERAL
M.
PETROS, PROVINCIAL COMMISSIONER, GAUTENG
2
nd
Respondent
COLONEL
P. VAN DER MERWE,
PRESIDING
OFFICER
3
rd
Respondent
__________________________________________________________________________
JUDGMENT
__________________________________________________________________________
LAGRANGE, J
The applicant in
this matter is a Lieutenant Colonel in the South African Police
Services. He has brought an application on an
urgent basis to set
aside his suspension without pay on 7 January 2011. It appears that
he was previously on suspension but without
loss of benefits pending
a disciplinary enquiry into serious charges of fraud. Although some
motivation was provided for setting
aside the initial suspension, an
examination of the notice of motion shows that the real object of
the application is his suspension
without pay.
This application
was only brought some six weeks after the imposition of the
suspension without pay. There is no explanation in
the founding
affidavit for the delay other than the fact that criminal charges
against the applicant and his wife were withdrawn
on 14 February
2011. It appears that the applicant is of the view that this turn of
events demonstrates that he is innocent of
any misconduct and
accordingly any suspension premised on a suspicion of misconduct on
his past cannot be justified.
Mr Mossam, who
appeared for the respondents, rightly pointed out that it is trite
law that an employee's exoneration on criminal
charges does not
preclude an employer from proceeding with disciplinary charges
dealing with the same alleged conduct. I agree.
I also do not
understand why the withdrawal of the criminal charges would now make
an application to set aside the suspension,
which took place several
weeks ago, urgent. In my view the application can be set aside for
lack of urgency alone, but in the
event that I am wrong in this
regard, I deal with the merits below.
The applicant
asserts that the suspension was unlawful because it was in breach of
the regulations governing disciplinary proceedings
and suspensions
connected therewith.
1
The relevant
provision is regulation 18, which is entitled ‘Securing the
attendance of an employee at a disciplinary hearing’.
Regulation 18 reads as follows:
“
(1)
(a) An employee who is served with a notice in terms of regulation
12(4) must attend a disciplinary hearing at the place, date
and time
specified in such notice.
(b) The employee
may at any time after receipt of the notice, but not later than two
(2) working days before the receipt of such
sharing, liaise with the
employer representative with a view to reschedule such hearing to an
agreed place, date and time: Provided
that the final decision on this
matter ultimately rests with the employer representative.
(c) If the
hearing is rescheduled, the employer representative must inform the
chairperson thereof on or before the date stated
in the notice, and
the chairperson must endorse the original notice to this effect.
(2) In the event
that the employee fails to -
(a) appear at the
place, date and time specified in the notice or such rescheduled
place, date and time; or
(b) remain in
attendance at the disciplinary in hearing,
such failure
shall, subject to sub regulation (3) and (4), constitute misconduct.
(3) (a) Upon a
failure as contemplated in subregulation (2), the chairperson must
postpone the hearing for not less than seven (7)
calendar days and
the notice of the postponement, issued by the chairperson must be
served on the employee.
(b) The notice,
in the form determined by the National Commissioner, must comply with
regulations 12 (3).
(4) On the date
on which the disciplinary hearing has been postponed, the chairperson
must summarily enquire into the failure of
employee to appear or
remain in attendance at the disciplinary hearing and, in the absence
of good cause shown, make a finding
that the employee committed
misconduct.
(5) (a)
In the
event that the employee fails to appear at the disciplinary hearing
on any date to which the disciplinary hearing has been
postponed
,
or a date to which it was an postponed in terms of subregulation
(3)
-
(i) the employee
shall, from the date of such failure to appear or remain in
attendance, be deemed to be suspended without remuneration;
and
(ii) the
chairperson must postpone the disciplinary hearing indefinitely, and
the disciplinary hearing shall only be reconvened
at the instance of
the employee concerned, after liaising with the employer
representative, as contemplated in sub regulation (1)
(b): Provided
that in the event the employee fails to take steps to reconvene the
hearing within two (2) months of such that, the
chairperson must
record such failure on the record of the disciplinary hearing, and
the employee shall forthwith be deemed to be
discharged from the
Service in terms of regulation 15(1)(e).
(b) In the event
of a hearing being reconvened in terms of sub regulation (5) (a) (ii)
the chairperson must summarily enquire into
the reasons for the
employee's failure to appear or remain in attendance at the
disciplinary hearing and confirm or set aside the
suspension as
contemplated in sub regulation (5 )(a)(i) .
(c)
Notwithstanding paragraphs (a) and (b),
the chairperson may, on
good cause shown, at any time set aside the suspension concentrated
in subregulation (5)(a)(i)
.
(d)
Notwithstanding paragraphs (a) and (b),
the chairperson may, upon
could caution and, decided the employee must not be suspended and
that the hearing be postponed to a later
date.
"
(emphasis added)
Paragraph 1 of the
suspension notice reads:
"
In terms of
regulation 18 of the South African Police Service Discipline
Regulations, you are hereby informed that you are deemed
to be
suspended from service without any remuneration, with effect from
2011. 01. 07 (date). suspension is a result of your failure
to appear
at the hearing on 2011. 01. 07 (date) to answer to the charge(s) as
stated in the Notice of your hearing had been remanded
and you had
been properly warmed by the chairperson of the hearing on 2010. 12.
21 (eight) to appear before him on the adjournment
date, namely on
2011. 01. 07 (date) and you failed to appear at the hearing.
"
The applicant
contends that the presiding officer failed to comply with the
provisions of regulation 18(3)(a) because in terms
of that
subregulation he was required to postpone the hearing for not more
than seven calendar days and serve the notice of the
postponement on
the applicant. Since the chairperson issued the notice of the
suspension without following the provisions of
regulation 18 (3)
(a), the suspension was contrary to the regulations and therefore
invalid, so the applicant’s argument
goes.
To understand how
matters reached the point where the suspension notice was issued it
is useful to look at the chronology of the
disciplinary hearing. On
19 November 2010 the applicant was issued with a notice to appear at
the disciplinary hearing on 30
November 2010. It was only on the day
of the scheduled hearing that the applicant’s union at the
time, POPCRU, requested
a postponement. Although the respondent
ought to have been given at least two working days prior to the date
of the hearing,
a postponement was still granted and the matter was
set down for 3 December 2010. On the next occasion, the disciplinary
officer
was phoned by the applicant, who said he was unable to
attend the enquiry because he would be appearing in the criminal
court
proceedings. The disciplinary officer issued a further notice
rescheduling the enquiry for 14 December 2010. On that day the
applicant was not represented and requested a further postponement.
It was then agreed that the matter would be postponed to 21
December
2010. Once again the applicant attended and was unrepresented and
requested a further postponement which the disciplinary
officer
opposed. Nonetheless, the presiding officer reluctantly agreed to
postponement of the matter until 7 January 2011. The
disciplinary
officer reminded the applicant that in terms of regulation 13 (4)
the employer was required to hold the disciplinary
enquiry within 60
days of the commencement of the suspension and if the 60 day period
had expired the chairperson had to take
a decision on whether the
suspension would continue.
Only the date of
the rescheduled hearing the applicant telephoned the disciplinary
officer, saying that he was ill and faxing
a medical certificate to
confirm his illness. The disciplinary officer advised the applicant
that the medical certificate was
not sufficient. A short digression
on the certificate is necessary at this point. The certificate was
issued by a Dr M Pitzer
on the day prior to the hearing and states
that he had examined the applicant and prescribed medication and
treatment which had
been administered on the premises. The
certificate also stated the signatory’s opinion that the
applicant should not report
for duty for a 10 day period. No details
of the illness were provided.
It was not disputed
that the South African police services only accepts certificates
from a registered medical practitioner and
does not appear to accept
certificates from traditional or natural healers which Dr Pitzer
appears to be. The disciplinary officer
contested the validity of
the certificate on the face of the contents of the certificate
itself. His concerns in this regard
cannot be faulted as
unreasonable. As it turns out, Dr Pitzer is a member of the union
which represented the applicant in these
proceedings and he appeared
in that capacity on behalf of the applicant. Dr Pitzer’s dual
role in the matter does raise
concerns about his independence as a
medical practitioner.
Looking at the
sequence of the adjournments and postponements of the disciplinary
hearing meetings, it was perfectly reasonable
for the respondent to
have become increasingly frustrated with the failure of the enquiry
to proceed. Was the employer entitled
to suspend the applicant was
at pay when he failed to attend this current hearing on 07 January
this year without first postponing
the hearing once more for not
less than seven calendar days on written notice to the applicant?
For the reasons below it appears
not.
It seems to me that
the provisions of subregulations 18(2), (3) and (4) are intended to
address the procedure to be followed before
the employer can take
disciplinary action against the employee for his failure to attend
the enquiry on proper notice. The emphasised
introductory porton of
regulation 18(5)(a) tends to confirm this interpretation. Regulation
18(5)(a) clearly envisages circumstances
in which the automatic
suspension of an employee can occur without the employer invoking
the provisions of regulation 18 (3).
Where the applicant's argument
breaks down, is it that it presupposes that a suspension without pay
can only proceed if subregulations
18(2),(3) and (4) have been
followed, but clearly a suspension without pay is competent, indeed
possibly automatic, under subregulation
18(5)(a) even if the
employee simply fails to attend.
It is also
noteworthy that even if the suspension was automatic and did not
require a decision by the chairperson, the chairperson
may still
revoke the suspension under the provisions of subregulations
18(5)(c) or (d). This provides an avenue for an aggrieved
employee
to pursue if he feels that he has been unjustly suspended without
pay on account of being absent from the hearing.
In the
circumstances, I am satisfied that the chairperson did not have to
postpone the hearing again in terms of subregulation
18(3)(a), which
only have to be invoked if the employer wishes to take disciplinary
action against the employee for their non-attendance
at the hearing.
He could rely on the provisions of subregulation 18(5)(a) which
permit, and in fact probably impose automatically,
suspension
without pay on account of the applicant failing to appear at the
hearing on the date to which had been postponed,
namely 07 January
2011.
Accordingly, the
applicant has failed to demonstrate a clear right to relief. He also
could approach the employer again to reconsider
the suspension
without pay under the provisions of subregulations 18(5)(c) or (d).
Thus, even if the application ought not to
be dismissed for lack of
urgency, the application has failed to demonstrate a clear
infringement of a right which is a pre-requisite
for final relief,
quite apart from other considerations.
Order
In view of the
reasoning above, the application is dismissed. No order is made as
to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing : 23 February 2011
Date
of judgment: 24 February 2011
Appearances:
For
the Applicant: Dr C M Pitzer of the South African Health & Care
Trade Union
For
the Respondents: Mr A Mosam instructed by the State Attorney
1
South
African Policy Service Disciplinary Regulations, Regulation Notice R
643, GG 28985 dated 03/07/2006
7