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[2011] ZALCJHB 233
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Mookgo v Greater Taung Local Municipality (J 930/09) [2011] ZALCJHB 233 (14 August 2011)
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J 930/09
In the matter between:
MOOKGO MARIA MATUBA
...........................................................................
Applicant
and
GREATER TAUNG LOCAL MUNICIPALITY
..............................................
Respondent
JUDGMENT
VAN NIEKERK J
[1] On 26 May 2009, the applicant
filed an urgent application in which she sought inter alia a
declaratory order to the effect that
she had been unlawfully
suspended by the respondent and that she be allowed to resume her
duties. On 26 May 2009, the respondent
filed an answering affidavit
in which it recorded that the applicant was free to return to work at
any time. On the basis of this
statement, the applicant returned to
work. The only outstanding issue was that of costs. On 28 May 2008,
when the matter was called,
Cele J made an order, by consent, that
the application be postponed
sine die
, and that the matter be
decided by a Judge in Chambers on the basis of heads of argument to
be filed by the parties. The parties
subsequently filed heads of
argument, and the Registrar placed the file before me in Chambers for
a ruling as contemplated by the
order.
[2] The applicant is the municipal
manager of the respondent. She claims that the respondent unlawfully
suspended her, and seeks
an order uplifting the suspension and
allowing her to resume her duties.
[3] The facts giving rise to the
application are not contentious. The applicant was employed as the
municipal manager of the respondent
in terms of a fixed term
contract. Clause 14 of the contract provides that the respondent may
suspend the applicant as a precautionary
measure if the applicant is
alleged to have committed an act of serious misconduct and the
respondent believes that her continued
presence at the workplace
might jeopardize any investigation into the misconduct or the well
being or safety of any person or municipal
property. In these
circumstances, the respondent is obliged to give the applicant an
opportunity to make representations on why
she should not be
suspended. Further, the applicant is entitled to be notified, in
writing, of the reasons for suspension simultaneously
with or at
least 24 hours after the suspension, and has the right to respond
within 7 working days. The wording of clause 14 is
drawn from the
relevant statutory protection afforded employees in the applicant’s
position. Also at issue in these proceedings
is clause 13.5 of the
applicant’s contract. That clause provides:
“
The Employer may grant the
Employee special leave with or without pay for a reasonable number of
working days with prior approval
in terms of the relevant special
leave policy of the Municipality.”
[4] In February 2009, the applicant
raised concerns about councillors interfering with the administration
of the respondent. It
appears that during the same month, the council
resolved to suspend the applicant, but for reasons that are not
entirely apparent,
did not proceed to implement the suspension. On 6
April 2009 the applicant wrote to the MEC for local government
complaining of
interference by councillors. The applicant was again
suspended, this time on the basis of allegations of corruption. After
the
applicant threatened legal action, the suspension was uplifted.
On 14 May 2009, the council held a special meeting and passed a
resolution. The resolution provided that the applicant’s
suspension be uplifted with immediate effect, and that an internal
investigation be conducted. For present purposes, paragraphs (g) and
(h) of the resolution are significant. These provide:
“
(g) That since the
allegations affect her work, the Municipal Manager be put on special
leave for 14 days with pay whilst the investigation
is on.
(h) That upon arrival at work, the
municipal manager be served with an intention for suspension and
further be afforded the opportunity
to make presentation within seven
(7) days from the day she receives a notice of suspension”
(sic).
The resolution was not unanimously
adopted. A significant number of councillors recommended that the
applicant should not be placed
on special leave but that she be
allowed to report for duty and a letter notifying her of an intention
to suspend be served, and
that depending on any representation
received form the applicant, the council would decide whether “to
charge her or not.”
[5] On 19 May 2009, the applicant
presented herself for work and was handed a letter signed by the
mayor on the 18
th
. The relevant part of the letter reads:
“
Council is also of the view
that your continued presence at work will
jeopardise
its investigations and
grants you forthwith a special leave with pay of 14 days whilst
investigations are continuing. This is done
in line with clause 13.5
of your employment contract
.
By copy hereof, you are invited to
make written representations within seven (7) days from today 18
th
May 2009, why you should not be suspended.”
[6] On 20 May 2009, the applicant’s
attorney wrote to the respondent stating inter alia that placing the
applicant on special
leave was “merely a suspension in another
guise”, and that an urgent application would be brought to
uplift the suspension.
The respondent did not reply to the letter. On
26 May 2009, the applicant filed this application, seeking the relief
referred to
in paragraph [1] of this judgment.
[7] I turn now to the issue before me.
The court has a wide discretion to make orders for costs. Section 162
of the Act requires
that orders for costs are made according to the
requirements of the law and fairness. In
NUM v East Rand Gold And
Uranium Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A), the court listed a number of
factors that might appropriately be taken into account, including the
general rule that absent
special circumstances, costs follow the
result. In so far as the merits of the applicant’s claim are
concerned, I deal first
with the applicant’s suspension. The
respondent contends that the resolution is nothing more than an
application of clauses
13.5 and 14 of the applicant’s contract
of employment. In other words, the effect of the resolution was to
give notice of
the respondent’s intention to suspend the
applicant in future, pending her written representations, but to
grant her 14 days’
special leave, on full pay, in the interim.
In my view, there is no merit in this contention. Although no
evidence has been placed
before the court to indicate what the terms
of the respondent’s policy on special leave might be, it is
clear from the wording
of clause 13.5 of the applicant’s
employment contract that special leave is leave sought at the
initiative of the employee,
and granted by the employer on that
basis. The stipulation that special leave may be granted with prior
approval indicates that
it is not leave that may be unilaterally
imposed. In particular, clause 14 does not contemplate that special
may constitute a basis
on which to enforce an employee’s
absence from work solely at the employer’s behest for reasons
related to allegations
of misconduct. In the present circumstances,
the special leave has its genesis in the council’s resolution
that the applicant
“be put on a special leave”. The
wording of the resolution is clearly peremptory, and does not
contemplate an offer
that the applicant was free to reject. To permit
an employer unilaterally to enforce special leave in circumstances
where allegations
of misconduct are under investigation is to permit
the employer to avoid the protections afforded the employee by clause
14, which
as I have indicated, are protections that have a statutory
origin.
[8] To the extent that there is a
dispute of fact on the papers as to whether the applicant acquiesced
and of her own volition accepted
the special leave referred to in the
respondent’s letter dated 19 May 2009, the respondent’s
contention that the applicant
was “merely given the choice not
to come to work” is untenable given the content of her
attorney’s letter dated
20 May 2009, and the fact that the
content of this letter, and in particular, the averment that the
applicant did not consent to
the special leave, was never contested,
nor was it stated that she had acquiesced in the leave. The first
indication of any averment
that the special leave was voluntary
appears in the answering affidavit, along with the respondent’s
statement to the effect
that the applicant was free to return to
work.
[9] In relation to urgency, the loss
suffered by an applicant in circumstances such as the present is
often non-pecuniary (see
Muller v House of Representatives
(1991)
12 ILJ 761 (C). This court has previously come to the assistance of
suspended employees by granting urgent relief on the
basis that the
hardship suffered outweighs any prejudice to a respondent. In my
view, the applicant was entitled to approach this
court on an urgent
basis.
[10] Finally, I fail to appreciate why
the respondent failed to place its version on record in response to
the applicant’s
attorney’s letter of 20 May. Had the
respondent done so, and placed on record its version that the
applicant had not been
suspended and that she was free to return to
work, this application would not have been necessary. Instead, the
respondent’s
silence resulted in the applicant being obliged to
protect her rights.
[11] In short, the respondent was not
unilaterally entitled to place the applicant on special leave and
thus circumvent the protections
afforded the applicant by clause 14
of her contract of employment. Placing the applicant on special leave
in these circumstances
amounted to her unlawful suspension. The
applicant made out a case for urgent relief. The respondent could
have avoided the necessity
of this litigation had it responded to the
applicant’s attorney’s letter dated 20 May 2009, and had
it made the tender
then that appears in its answering affidavit. In
these circumstances, considerations of law and fairness dictate that
the respondent
should be liable for the costs of this application.
I accordingly make the following
order:
1. The respondent is to pay the costs
of this application.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR COURT
Date of Judgment: 14 August 2009
Appearances:
For the applicant: Mr. G Ray-Howett
from Grant Ray-Howett Attorneys
For the respondent: Adv A J Swart
Instructed by: Kgomo Mokhetle &
Tlou Attorneys