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[2011] ZALCJHB 89
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Chibi v MEC: Department of Co-Operative Governance and Traditional Affairs (Mpumalanga Provincial Government) and Another (J1764/11) [2011] ZALCJHB 89; (2012) 33 ILJ 855 (LC) (1 November 2011)
REDDY AJ
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
Reportable
CASE NO. J 1764/11
In
the matter between:
NONHLANHLA
C CHIBI
….................................................................................
Applicant
and
THE
MEC: DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
(MPUMALANGA
PROVINCIAL GOVERNMENT)
….............................
First
Respondent
DEPUTY
DIRECTOR GENERAL:
DEPARTMENT
OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
(MPUMALANGA
PROVINCIAL GOVERNMENT)
…........................
Second
Respondent
Date of Hearing: 22 SEPTEMBER 2011
Date of Judgment:
________________________________________________________________
JUDGMENT
REDDY
AJ
Introduction
[1] This is an urgent application for
final relief in the following terms:
1 dispensing with the provisions of
the Rules relating to times and manner of service referred to therein
and dealing with the matter
as one of urgency in terms of Rule 8 of
the Labour Court Rules;
declaring the disciplinary sanctions
of three months suspension without pay and demotion from applicant’s
previous level
13 position to a level 12 position
apropos
to
disciplinary proceedings against applicant are invalid and unlawful;
interdicting and restraining the
respondents from giving effect to the disciplinary sanctions of
three months suspension without
pay and demotion from applicant’s
previous level 13 position to a level 12 position;
directing the respondents to comply
with the terms and conditions of applicant’s contract of
employment in so far as applicant’s
level 13 position and
remuneration attached to the position of Director: Supply Chain is
concerned;
the costs of this application be paid
by the respondents in the event of opposition
[2] This application is opposed by the
respondents.
Factual background
[3] The applicant was employed as a
director: supply chain of the department of co-operative governance
and traditional affairs
(Mpumalanga provincial government). Her
position of director is on level 13. She was appointed to the post
with effect from 1 February
2009.
[4] The department in which the
applicant works manages the procurement of goods, works and services
for the department by means
of petty, verbal or written price
quotations or competitive bids or tenders.
[5] The work and activities of the
supply chain department are regulated by a number of legislative
instruments which include the
applicable provisions of the
Public
Finance Management Act, 1999
, relevant treasury regulations and the
Preferential Procurement Policy Framework Act, 2000
.
[6] The applicant was instructed
during the first week of May 2010 to assist with the procurement of
VIP catering for the then approaching
2010/2011 MEC budget speech.
The applicant was also instructed to procure banners for the budget
speech and for other departmental
use.
[7] The actual procurement of the
catering services and the banners by the applicant is in dispute,
however this issue is of no
relevance to this application suffice it
to say that the procurement led to the applicant being charged with
three acts of misconduct:
charge one related to falsification of
records or supply chain documents; charge two related to gross
negligence in failing to
follow procurement procedures and charge
three related to gross misconduct in failing to follow national
regulations or departmental
policies or procedures.
[8] A disciplinary enquiry was held on
23 and 24 June 2011. The applicant attended the hearing. The
applicant was found guilty of
charges 1 and 3 and not guilty of
charge 2. The parties were heard in aggravation and mitigation of
sentence. The sanction, which
was received by the applicant on 26
July 2011, reads as follows:
“
13.4
Sanction
The
appropriate sanctions under the circumstances are as follows:
Charge
1: three months suspension without pay
Charge
3: the employee is demoted from level 13 to level 12 with immediate
effect.”
[9] The applicant with the assistance
of her union lodged an appeal against, amongst other things, the
sanction. The appeal was
lodged with the first respondent on 28 July
2011. In his written reply to the union (dated 4 August 2011), the
first respondent
informed the union that the first respondent did not
have jurisdiction to consider appeals in respect of senior management
service
(SMS). The applicant was a member of the SMS. The applicant
was directed to lodge an appeal with the relevant bargaining council
or the Labour Court, “whichever is applicable”. The
applicant’s union only informed the applicant of this letter
on
17 August 2011.
[10] The applicant then sought legal
advice on 19 August 2011 and was advised to lodge this application.
Prior to doing so, the
applicant’s attorney wrote to the
applicant’s head of department informing him of the alleged
unlawfulness of the sanctions
and requested that the sanctions be
uplifted failing which an urgent application to this Court would be
brought. That letter was
sent on 19 August 2011 and it gave the
respondents until 24 August 2011 to uplift the sanctions and comply
with the terms contended
for.
[11] On 24 August 2011, the
respondents replied to the letter informing the applicant that the
sanctions were not imposed as alternatives
to dismissal. The
respondents were satisfied that the sanctions were lawful and
enforceable.
[12] The applicant then launched this
application, on an urgent basis, on 2 September 2011. The matter was
set to be heard on 13
September 2011 but the parties agreed to the
filing of further pleadings and the matter was adjourned to 22
September 2011.
[13] For the purposes of this
application, the applicant does not challenge the fairness of the
disciplinary process or the findings
on guilt. She is also not
challenging the fairness of the sanctions. She is challenging the
validity of the sanctions that were
imposed. She contends that the
sanctions were imposed as an alternative to dismissal and in such
circumstances her contract of
employment requires that the sanctions
could only be imposed after consultation with and agreement by her to
their imposition.
She further contends that there was no consultation
with her and consequently no agreement by her that the sanctions be
imposed,
resulting in their invalidity and unlawfulness. The
applicant seeks that the sanctions be uplifted and the
status quo
ante
resumes.
[14] The applicant launches this
application in terms of section 77 (3) of the Basic Conditions of
Employment Act. In terms of that
section this Court has concurrent
jurisdiction with the civil courts in respect of any matter
concerning contracts of employment.
Urgency
[15] The respondents submitted that
the applicant’s matter is not urgent as the sanctions were
imposed with effect from 1
August 2011 and there is no explanation by
the applicant why she took so long to approach this Court.
[16] On a reading of the papers, the
only period that is not explained is that between 4 August 2011 when
the union would have received
the letter in respect of the appeal and
its informing the applicant on 17 August 2011 thereof. This is a
significant period of
time and the union should have put up an
explanatory affidavit for the delay in bringing the letter to the
applicant’s attention.
[17] The remaining periods have been
explained and I am persuaded that the applicant was not dilatory in
approaching this Court.
[18] It is trite that an applicant for
urgent interdictory relief must satisfy the Court that she has a
clear right to enforce,
that there is an injury actually committed or
reasonably apprehended and that there is an absence of any other
satisfactory remedy.
I will deal with each principle in turn.
Clear right
[19] The applicant submitted that (and
it was not disputed by the respondents) her contract of employment
incorporates the disciplinary
code and procedures for the SMS
members. The disciplinary code and procedures are contained in the
SMS handbook. Chapter 7 of the
handbook provides the code and
procedure for misconduct and incapacity. Clause 2.7 of chapter 7 sets
out the procedures to be followed
in disciplinary enquiries. Clause
2.7.4 provides the following in respect of sanctions:
“
(4)
Sanctions
(a)
If the chairperson finds a member has committed misconduct, the
chairperson must pronounce a sanction …depending on the
nature
of the case and the seriousness of the misconduct, the member’s
previous record and any mitigating or aggravating
circumstances.
Sanctions consist of -
counselling;
a
written warning;
a
final written warning;
suspension
without pay, for no longer than three months;
demotion;
a
combination of the above; or
dismissal.
(b)
With the agreement of the member, the chairperson may only impose the
sanction of suspension without pay or demotion as an alternative
to
dismissal. If a member is demoted, after a year he or she may apply
for promotion without prejudice
.”
[20] The applicant also referred to a
ministerial directive dated 3 September 2003 wherein it is recorded
in clause 4 (c) that:
“
Unlike
the case of public servants (below the SMS level) where … the
sanctions of demotion and suspension without pay would
become
stand-alone sanctions, … in the case of SMS members these two
sanctions may only be imposed as alternatives to dismissal
and the
employee concerned has to agree to such alternative. The reason for
this is that the employer cannot unilaterally reduce
the salary and
benefits of an employee.”
[21] The applicant submitted that on a
reading of clauses 2.7.4 and 4(c) that the chairperson of the
disciplinary enquiry was obliged
to consult with her and obtain her
agreement to the sanctions of the suspension without pay for three
months and demotion (the
sanctions) before he imposed them.
[22] The respondents submitted that
the sanctions were not imposed as alternatives to dismissal, there
was no need to obtain the
applicant’s agreement and that they
are valid and enforceable sanctions.
[23] The applicant could not supply
any information that supported her contention that the chairperson
considered the sanctions
as an alternative to dismissal.
[24] For the applicant’s
submissions to be accepted the only logical interpretation of clauses
2.7.4 and 4(c) is that the
chairperson must have concluded that
dismissal could apply but was not appropriate in the circumstances
and that he therefore imposed
the sanctions he did as alternatives to
dismissal.
[25] I do not accept the above
interpretation as having application in this matter for the following
reasons: not every act of misconduct
necessarily attracts the
sanction of dismissal. Clause 2.7.4 offers any one of a range of
sanctions or a combination of them (excluding
dismissal) or dismissal
as applicable sanctions depending on various factors namely the
nature of the case and the seriousness
of the misconduct, the
member’s previous record and any mitigating or aggravating
circumstances.
[26] Clause 2.7.4 gives the
chairperson a wide discretion insofar as appropriate sanctions are
concerned. It is to my mind imperative
that chairpersons retain wide
discretions so that fairness results in the disciplining of
employees. Clause 2.2 of the SMS handbook
provides that discipline is
a management function. This function must be cautiously and fairly
exercised to ensure that employee’s
rights not to be unfairly
dismissed remain intact.
[27] Further the SMS handbook
incorporates the Labour Relations Act’s Code of Good Practice
on dismissal. This means that
the respondents intended that
progressive discipline be applied to acts of misconduct rather than
employees being dismissed in
the first instance.
[28] A reading of the chairperson’s
findings on sanction does not reveal that he concluded that dismissal
could apply but
was not appropriate in the circumstances. He arrives
at no such conclusion.
[29] In his ruling the chairperson
records the following observations after considering the submissions
in aggravation and mitigation:
1. the acts of misconduct revealed an
element of gross negligence;
2. the applicant could not claim not
to be properly trained;
3. the procurement committee was not
fully operative and this could have been a contributory factor to the
misconduct;
4. the lack of policies could not be a
contributory factor as all policies were clearly laid down;
5. there was no motive that was
established therefore the only conclusion was that the applicant
lacked the necessary diligence
to carry out her functions –
this to his mind was poor performance related to negligence rather
than to incapacity;
6. the applicant was the head of the
supply chain, was not on probation and failed in her stewardship;
7. the offences of which she was found
guilty were of a serious nature and they could potentially harm the
department of co-operative
governance and traditional affairs and
they could bring the public service into disrepute.
The chairperson then records the
sanctions as recorded in paragraph 8 above.
[30] As the chairperson did not
conclude that dismissal could be applied but was not appropriate in
the circumstances there was
no need for him to engage the applicant
to elicit her agreement to the sanctions he imposed.
[31] The applicant referred to the
matter of
Department of
Labour v General Public Service Sectoral Bargaining Council and
Others
1
in support of her contention that her
consent must have been obtained prior to the imposition of the
sanctions. I do not find any
support for this contention in the LAC
decision referred to when viewed against the circumstances of this
matter.
[32] The employees in the Department
of Labour case were found guilty of sexual harassment and as an
alternative to dismissal they
were offered the sanctions of a final
written warning together with a suspension from duty without pay for
three months. They were
informed,
inter
alia
, that should they not
accept the alternate sanctions they would be dismissed. They did not
accept the alternate sanctions and they
were dismissed. The Labour
Appeal Court found that the alternative sanctions to dismissal were
offered by the employer as a means
to rehabilitation in compliance
with the principle of progressive discipline. The employees had shown
no remorse for their conduct,
refused to acknowledge the wrongfulness
of their conduct and were not willing to be rehabilitated. The
alternate sanctions to dismissal
were therefore not appropriate.
Their dismissals were upheld.
[33] The
Department of Labour
decision above shows that in the public service context, there is no
automatic application of sanctions other than dismissal to
misconduct. For alternatives to dismissal to be applicable, it
requires the precursor that dismissal must be applicable in the
circumstances. Once this is established, an employee may be offered
as an alternative to dismissal a lesser sanction. Where the
alternate
sanctions are a suspension without pay or a demotion the employee’s
consent is required.
[34] As stated above, the chairperson
in this matter did not arrive at a conclusion that dismissal could be
applied. He found that
the sanctions were appropriate in the
circumstances of the case. In other words, he did not conclude that
the applicant ought to
be dismissed but through the application of
progressive discipline alternate sanctions should be applied. If this
were the case,
then the applicant’s consent ought to have been
acquired beforehand. As this was not the case her consent was not
necessary.
[35] To accept the applicant’s
argument that dismissal
must
have been considered because the
sanctions of demotion and suspension without pay were imposed, means
that a chairperson does not
retain any discretion as to the
appropriateness of the sanction. The only conclusion he could reach
is that an employee ought to
be dismissed. The consequence of this
argument is that irrespective of how minor an offence may be an
employee who is demoted and
suspended without pay for three months,
would have ordinarily been dismissed. This argument will not survive
judicial scrutiny.
It turns the policy of progressive discipline on
its head and makes a mockery of the policy of alternate discipline in
terms of
clause 2.7.4.
[36] I therefore find that the imposed
sanctions are valid and enforceable.
[37] Further, if the applicant’s
contention is accepted it does not follow that if the imposed
sanctions are uplifted the
status quo ante
will resume. Given
my findings on the lawfulness of the sanctions, the only way in which
the sanctions can be set aside and the
status quo ante
resumes, is if there is a finding that the applicant was not guilty
of the charges. As she is not challenging the findings of guilt,
such
a conclusion is not possible.
[38] The applicant also contends that
she ought to have been consulted prior to the implementation of the
sanctions. I do not agree
with this submission for the following
reasons. There is no provision that specifically records that the
employee must be consulted.
The two clauses the applicant referred to
in support of her submission only refer to an agreement by the
employee concerned. This
does not include consultation. To my mind,
the most that an employee is entitled to is being informed of the
possibility of dismissal
and as an alternative thereto she is given
the opportunity to accept an alternate sanction.
[39] Further, the only reason for the
requirement of the consent is that an employer cannot unilaterally
reduce the salary and benefits
of an employee. There is no need for
the employer to enter into a consultative process with the employee.
Discipline is a managerial
function. The only duty of the employer in
carrying out this function is that it must act fairly. The fairness
of the sanctions
is not an issue before me.
[40] I find that the applicant has not
established a clear right that warrants protection. I also find that
the respondents are
not in breach of sections 32 and 34 of the Basic
Conditions of Employment Act as alleged by the applicant [see SA
Breweries Ltd
(Beer Division) v Woolfrey and Others (1999) 20 ILJ
1111 (LC)].
Injury actually committed or
reasonably apprehended
[41] The applicant submits that if the
Court does not come to her assistance she will suffer grievous harm.
The demotion has the
effect of impairing her dignity and self worth
as she will be expected to complete tasks usually completed by her
subordinates.
She will face ridicule and contempt from her fellow
employees and subordinates. Her right to perform functions
commensurate with
her status, skills and competence have been
infringed. Her prospects of promotion are bleak. The drop in her
remuneration means
that she cannot meet her monthly financial
obligations.
[42] Financial hardship and loss of
income do not constitute grounds for urgency (see
Jonker v
Wireless Payments Systems CC
(2010) 31 ILJ 381 (LC) at paragraphs
14 to 20 and the cases referred to therein).
[43] The applicant also wishes not to
endure the consequences of her misconduct. This does not justify her
approaching this Court
urgently.
[44] I have already found that the
applicant has not established a clear right to the relief she claims.
She has not challenged
the fairness of the sanctions in the relevant
bargaining council. The hardships that she seeks to avoid could be
alleviated if
she referred her dispute to the relevant bargaining
council.
Absence of other satisfactory
remedy
[45] It is common cause that the
disciplinary code and procedure is a collective agreement applicable
between the parties. The respondents
submitted that the applicant can
enforce the collective agreement in terms of section 24 of the LRA
and the applicant would be
able to argue for the same relief as in
this application.
[46] The applicant did not rebut this
submission.
[47] I find that the applicant has an
alternate remedy in terms of section 24 of the LRA in that she could
have approached the relevant
bargaining council for enforcement of
the interpretation she contends for.
[48] The respondents further submitted
that the applicant could also lodge an unfair labour practice dispute
in terms of section
186 (2) (a) relating to demotion and/or in terms
of section 186 (2) (b) relating to disciplinary action short of
dismissal.
[49] The applicant submitted that
those disputes relate to the fairness of the sanctions and not to the
lawfulness and that the
applicant would only be able to claim
compensation and not reinstatement into her original post. The
respondents submitted that
the relief the applicant seeks in this
application would also be available to her in terms of section 193
(4) of the LRA if she
referred a dispute in terms of section 186 of
the LRA. In terms of section 193(4), an arbitrator may reinstate an
employee who
has lodged an unfair labour practice dispute.
[50] The employee referred to the
cases of
Sappi Forests (Pty)
Ltd v CCMA
2
and
Hospersa
v MEC for Health
3
in support of her contention that the
employer cannot unilaterally reduce her salary and benefits.
[51] The
Sappi
case supra, was a dispute referred as
an unfair labour practice in terms of section 186 (2) (b) of the LRA.
The Court in that matter
found that although the employee had been
suspended pending disciplinary action, section 186(2) (b) could be
widely interpreted
to include suspensions as a form of disciplinary
sanction. The Court found that the suspension in that matter was a
disciplinary
sanction and that the CCMA had jurisdiction to determine
the dispute.
[52] I find that the above case far
from supporting the employee’s contention that she had to
approach this Court for relief,
confirms that the employee ought to
have lodged an unfair labour practice dispute in terms of section
186(2)(b) in the respective
bargaining council.
[53] In the
Hospersa
case, the
employee’s salary was unilaterally stopped when she refused to
perform her services at another workplace. The employee
had been
unilaterally transferred to another workplace whilst there was an
ongoing dispute between the parties. The Court held
that the
non-payment of her salary was unlawful and that the employee should
have been heard before her salary was stopped. The
Court also
referred to a suspension without pay as being unlawful unless it is a
specific term of the applicable contract or it
is implemented as an
alternative to dismissal.
[54] The above case is distinguishable
on the facts from this application. The employee in this matter was
heard in mitigation before
the sanction of suspension was imposed.
Further, the sanction was not imposed as an alternative to dismissal.
[55] I find that the applicant has
alternate remedies in terms of the LRA. The relief that she claims in
this application could
also be granted in terms of section 193(4) of
the LRA.
Costs
[56] Having considered the facts, the
relevant issues and the applicable legal principles I am persuaded
that the applicant ought
not to have approached this Court and that
the Respondents were entitled to oppose the application.
[57] In the circumstances, I am of the
view that the respondents are entitled to their costs, especially in
light of the fact that
the matter was brought urgently.
[58] In the circumstances, I make the
following Order:
1. The application is dismissed with
costs.
_______________________
Reddy AJ
Appearances:
1. For the Applicant: Mr Verster of JD
Verster Labour Law Office
2. For the Respondents: Mr Zulu
instructed by Nkosi Attorneys and Associates
1
(2010)
31 ILJ 1313 (LAC).
2
(2009)
30 ILJ 1141 (LC).
3
(2008)
29 ILJ 2769 (LC).