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[2012] ZALCJHB 69
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Mashiane v Department of Public Works (J1773/12) [2012] ZALCJHB 69 (18 July 2012)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH
AFRICA,
IN JOHANNESBURG
JUDGMENT
case
no: J1773/12
In the matter between:
VUSI MASHIANE
Applicant
and
DEPARTMENT OF PUBLIC WORKS
First
Respondent
Heard
:
17 July 2012
Delivered
:
18 July 2012
Summary:
(Urgent – interdict – suspension –
SMS handbook – clause 7 – authority to suspend while
enquiry underway).
judgment
LAGRANGE, J
Introduction and background
brief chronology
The applicant is employed by the respondent as the Director:
Property Management- Pretoria Regional Office. On 30 November 2011
he received a notice of suspension, which was issued pursuant to a
notice of intention to suspend which he claims he never received
on
time to respond to. The notice of suspension advised him amongst
other things:
“
2. You are hereby informed of the
decision to put you on precautionary suspension pending further
investigations into allegations
of misconduct levelled against you.
Your suspension is in line with disciplinary code and procedures for
members of senior management
services (S M S). The suspension is a
precautionary measure and does not in any way constitute a judgement
or a sanction.
3. The reason for the above-mentioned decision is to create a
conducive environment the internal investigation into the following
allegations of misconduct:
...[The notice then describes his alleged involvement in the
irregular leasing of a building in Pretoria]...
4. To avoid possible interference with the available documents and
potential witnesses, you are directed not to enter the premises
of
the department during a period of suspension,...
...
7. Your suspension will be reviewed in the next 30 days, when you
will be afforded opportunity to appear in a disciplinary hearing."
The applicant was booked off ill at the beginning of 2012 until 20
January. His attorney enquired whether he could return to
work on 23
January as the 30 day period mentioned in the notice had expired. On
23 January 2012, the respondent advised that
it was still busy with
the investigation into his conduct and would communicate with him on
the outcome of those investigations,
but in the meantime his
suspension was extended for a further 30 days. The applicant
announced his intention to report for work
when this period of
suspension lapsed, but on 23 February 2012 the respondent issued a
further letter saying that the investigation
was still in progress
and the precautionary suspension would be extended. It further
advised that he would receive the outcome
of the investigation on or
before the end of March 2012 and that he should not report for duty
pending the finalisation of the
investigation. He was invited to
make representations against this decision to extend his suspension.
The applicant's response
was that this extension of his suspension
was
ultra vires
the provisions of the Senior Management
Service handbook and was procedurally and, or alternatively,
substantively unfair.
Pursuant to this letter, the applicant referred a dispute concerning
an unfair suspension to the General Public Service Sectoral
Bargaining Council (‘the GPSSBC’). Ultimately, this
referral culminated in an arbitration award issued on 22 June
2012
in terms of which it was ordered that his precautionary suspension
should be uplifted with immediate effect.
The applicant then reported for duty on 2 July 2012, whereupon he
was given a letter notifying him of the respondent's intention
to
suspend him afresh. The letter referred directly to the arbitration
award and stated, among other things:
“
3. I write to advise that the department
remains concerned about Mr Mashiane being at work whilst he is facing
a disciplinary process.
4. The department hereby invites Mr Mashiane to make written
representations as to why he should not be placed on suspension
pending
the conclusion disciplinary process against him....”
In a letter dated 4 July 2012, the applicant’s attorney
retorted that the intended suspension of the applicant was an
attempt to bypass the provisions of clause 2.7 (2) (c) of the SMS
handbook and, in particular, to thwart the very purpose of that
provision which is to avoid the protracted suspension of employees.
The letter further pointed out that by that date the applicant
had
been suspended for a period of 217 days, which was well in excess of
the 60 day period contemplated for precautionary suspension
in the
handbook. The letter concluded by calling on the respondent to
furnish an undertaking that it would not place the applicant
on
preventative suspension pending the finalisation of the hearing,
failing which he would have no alternative but to approach
the
Labour Court for urgent relief.
The respondent's answer to this was to confirm on the same day that
it had decided to suspend the applicant, supposedly after
considering his attorneys representations. Material portions of the
notice stated:
“
2. In the light of (1) seriousness of
the allegations, (2) overwhelming evidence that the department has
against you and lastly,
(3) prejudice that would be suffered as a
result of your presence at work, we deem it appropriate to suspend
you.
3. Your suspension shall therefore endure until conclusion
disciplinary process.
4. During the suspension, you are required not to contact members
of staff unless prior permission is obtained... You are further
required not to enter the premises of the employer unless prior
written permission is obtained...”
The applicant felt in the light of this response that he had no
meaningful alternative but to approach this court on an urgent
basis
to secure his return to work in the face of what he perceived to be
a breach of the order contained in the arbitration
award and an
unlawful act of the respondent in trying to suspend him contrary to
the provisions of the SMS handbook. This application
was then
launched on 12 July 2012.
The
provisions of the SMS handbook
Chapter 4, Part 1 of the
Public Service Regulations, as amended on 16 July 2004 states:
“
D. HANDBOOK FOR SMS
The Minister may include any or all of the determinations,
directives, guidelines and provisions applicable to the SMS in a
Handbook
for the SMS.”
It has been suggested that
the provisions dealing with discipline are guidelines and therefore
are not binding. However, chapter
7 of the 2003 Handbook does not
refer to any of the disciplinary provisions as ‘guidelines’.
In the SMS handbook,
the term ‘guideline’ is
specifically used to describe other procedures or practices set out
in the SMS handbook,
such as: ‘Guidelines for the composition
of advertisments’ (Clause 7.2); ‘additional guidelines
on interviews’
(Clause 8.6 (3)) or, ‘
National
policy and guidelines on performance based pay and rewards’
(Clause 15.1).”
The introduction to chapter 7
of the 2003 SMS handbook, which is the chapter dealing with
misconduct and incapacity, states among
other things:
“
1. INTRODUCTION
1.1 The chapter contains the procedures that must be applied in
cases of misconduct, incapacity due to poor performance and
incapacity due to ill health of members of the SMS (hereafter
referred to as “members”). As regards misconduct,
PSCBC
Resolution 1 of 2003 envisages the issuing of a directive by the
Minister for the Public Service and Administration to cover the
disciplinary matters of members of the SMS.
The procedures for
misconduct in paragraph 2 below incorporates those provisions
of PSCBC Resolution 1 of 2003, which were considered
appropriate and practicable in respect of members of the
SMS
...”
Resolution 1 of 2003 of the Public Service Coordinating Bargaining
Council amended resolution two of 1999 containing the disciplinary
code and procedure for the public service. This resolution amongst
other things states that:
“
3. Therefore the parties resolve-
to
amend resolution and 2 of 1999 as indicated in the attached schedule
1;
that
the provisions of the amended disciplinary procedure remain
applicable to members of the Senior Management Service of the
public
service until such time as the Minister for the Public Service and
Administration issues a directive to cover the disciplinary
matters
of this group of employees;...”
Clause 7.2 of the public service disciplinary code and procedure
attached to resolution 1 of 1999 states:
“
7.2 precautionary suspension
a. The employer may suspend an employee on full pay or transfer
the employee if
i the employee is alleged to have committed a serious offence; and
ii the employer believes that the presence of an employee at the
workplace might jeopardise any investigation into the alleged
misconduct,
or endanger the well-being or safety of any person or
state property.
b. A suspension of this kind is a precautionary measure that does
not constitute a judgement, and must be on full pay.
c. If an employee is suspended or transferred as a precautionary
measure, the employer must hold a disciplinary enquiry within a
month
or 60 days, depending on the complexity of matter and the length of
the investigation. The chair of the hearing must then
decide any
further postponement. “
Although it is not part of the handbook as such, the foreword to the
handbook by the Minister of Public Service and Administration,
assets that:
“
The purpose of this handbook is set out,
in clear and concise terms, the conditions of employment and the
roles of SMS members.”
The relevant, and only, provision dealing with suspension in the
context of a disciplinary enquiry is clause 2.7(2) which reads:
“
(2) Precautionary suspension or transfer
(a) The employer may suspend or transfer a member
on full pay if -
•
the member is alleged to have committed
a
serious offence; and
•
the employer believes that the presence
of
a member at the workplace might
jeopardise any investigation into the alleged
misconduct, or endanger the well being or
safety of any person or state property.
(b) A
suspension or transfer of this kind is a
precautionary measure
that does not constitute a
judgement, and must be on full pay.
(c)
If a member is suspended
or transferred as a
precautionary measure,
the employer must hold a
disciplinary hearing within 60 days
. The chair of
the hearing must then decide on any further
postponement.
It is readily apparent that this provision is identical to clause
7.2 of the public service disciplinary code and procedure.
The submissions of the parties
The applicant's representative, Mr Rhoode, in seeking to establish
the basis of the applicants’ right to relief, argued
that only
the chairperson of the enquiry could extend the period of suspension
after the 60 day period had expired. Alternatively,
he submitted
that even if it was a fresh suspension and not a continuation of the
previous one it was contrary to the SMS handbook
which was binding
on both parties by virtue of being endorsed in a collective
agreement. It does seem clear from the various
extracts cited above
that the SMS handbook was intended to set out terms and conditions
of employment except where it is clearly
intended to only provide
guidelines. In any event, resolution one of 1999 contains the
identical provision at issue in this instance
and by virtue of being
a collective agreement is clearly binding on the parties.
The applicant placed reliance on the case of
Lekabe v
Minister: Department of Justice & Constitutional Development
(2009) 30
ILJ
2444 (LC)
in which
Molahlehi J said:
“
[16] Turning to the
specific issue in the present instance, in my view it could never
have been the intention of
the parties that clause 2.7(2)(c)
C
of the SMS Handbook should
take away the right of an employer to discipline an employee on the
expiry of the 60 days from the date
of suspension . In essence the
case of the applicant in the present instance is that the right of
the respondent to proceed with
the disciplinary hearing prescribed on
the expiry of the 60 days from the date of his suspension .
[17] In my view clause 2.7(2)(c) deals with
suspension and not disciplinary action. There is nothing in this
clause
that says an employer would lose the right to discipline an
employee on the expiry of the 60 days from the date of the suspension
. I have not been able to find even a basis for implying the
interpretation sought by the applicant or the one given by the court
in Mlambo.
At best, as I see it, the suspension falls away after
the 60 days unless the chairperson of the disciplinary hearing
extends that
period
.
[18]
The
purpose of clause 2.7(2)(c), as I see it, is to address the problem
of protracted suspensions which demoralize and unfairly
prejudice the
suspended employee.
It would appear that the mischief which the parties sought to address
with the provisions of clause 2.7 was to deal with what Van
Niekerk J
in Mogothle v Premier of the Northwest Province & another
(2009)
30 ILJ 605 (LC)
regarded as the tendency by certain employers to -
'regard
suspension as a legitimate measure of first resort to the most
groundless suspicion of misconduct, or worst still, to view
suspension as a convenient mechanism to marginalize an employee who
has fallen from favour'.
[19] Thus the right of the employee in the event
that the employer does not uplift the suspension on the expiry
of the
60 days is to file an unfair labour practice claim or bring an
application to have an order directing the employer to uplift
the
suspension . I need to emphasize
I
that in my view it could never have been the intention of
parties that the right to discipline by an employer would fall away
on
the expiry of the 60 days.
[20] The
court in Mogothle's case quoted with approval what this court had
said in SAPO Ltd v Jansen van Vuuren
NO & others
(2008)
29 ILJ 2974 (LC)
[2008] ZALC 33
; ;
[2008]
8 BLLR 798
(LC). The court in that case was dealing with the abuse of
power by the employer through the use of suspensions .
As
stated earlier the real intention of the parties in promulgating
clause 2.7(2)(c) of the SMS Handbook was to address this abuse.
The
intention was to curb the power of employers in the public service
from using protracted suspension as a means of marginalizing
those
employees who may have fallen out of favour. The intention of the
parties was also to minimize if not do away with the resultant
detrimental impact, the prejudice to the affected employee's
reputation, advancement, job security and fulfilment that would arise
from prolonged suspension
.
See in this regard SAPO at para 37.”
1
(emphasis added)
I am satisfied that the provision regarding a 60 day time limit
within which a disciplinary enquiry must be held was intended
to be
peremptory and the discretion to extend the enquiry beyond that date
rests with the chairperson. It seems to be reasonably
incidental to
the exercise of that discretion that he must consider the extension
of the precautionary suspension, since the
purpose of the provision
is to prevent lengthy suspensions without disciplinary steps being
brought to a conclusion. The chairperson
will need to consider after
60 days whether the reasons for the suspension remain valid
depending on the progress of the enquiry.
He argued also that there was no other practical relief that would
be a reasonable substitute for returning him to work without
further
delay. The previous referral of the first suspension to the
Bargaining Council had taken a couple of months to resolve
itself,
and as things stood it appeared that the fresh suspension was simply
an attempt to continue the same even after an award
in the
applicant's favour.
Apart from being unable to obtain the benefit of the arbitration
award, the applicant also cited other prejudice he might suffer
as a
result of being away from the workplace. I do not intend to go into
detail about this save to say that it concerned his
apprehensions
about being overlooked in the course of the respondent embarking on
a major "turnaround strategy", which
involve, amongst
other things, looking at the capabilities and capacities of existing
senior staff. Although, the respondent
was at pains to point out
that nobody need fear that they would be prejudiced by this process
and that it was not a restructuring
program that might lead to
retrenchment, the applicant was not appeased by these promises.
Nonetheless, I am satisfied that the
turnaround strategy being
undertaken does not hold any latent or patents prejudice for the
applicant. Even so, I accept that
if the court did not intervene, it
might render the value of the arbitration award meaningless and
effectively deprive him of
the benefit of a process right, whose
principal value lies in being exercised at the time the employee is
entitled to rely on
it.
Mr Mooki, for the respondent, rightly questioned the prejudice
alleged by the applicant arising from the turnaround strategy,
which
I have commented on above. As mentioned, I do not think that the
applicant could persuade me on the evidence that his position
would
be irreparably prejudiced by the implementation of the turnaround
strategy in his absence, especially in the light of undertakings
that any adverse consequences that might arise, even though these
are not anticipated, will be the subject of consultations between
him and the respondent.
On the question of whether the fresh suspension was subject to the
provisions of the SMS Handbook, Mr Mooki first attempted to
argue
that the respondent had a distinct and separate right to suspend an
employee, which did not originate in the provisions
of clause 2.7.
However, no legal basis for this distinct right was advanced.
Moreover, the respondent could not explain how an
untrammelled right
to suspend an employee without regard to the safeguards in clause
2.7 of the Handbook - and by necessary implication,
of the
provisions of clause 7.2 of resolution 1 of 1999 - would not permit
the very mischief which that provision was intended
to prevent.
2
A further argument advanced was that the fresh suspension was not
merely a continuation of the previous one relating to the current
pending disciplinary proceedings against the applicant, but was
prompted by further investigations into other tender irregularities
which might result in the proffering of additional charges against
the applicant. The broad outlines of these investigations
were set
out in the respondents answering affidavit. Even if I accept this,
the notice of intention to suspend the applicant
and the decision to
suspend him conveyed to him after his return to work do not contain
the faintest suggestion that the purpose
of the intended suspension
related to such fresh investigations and pending charges. On the
face of the extracts from those notices
cited in paragraphs 4 and 6
above, it is difficult to come to any other conclusion but that the
suspension the employer instituted
after the applicant returned to
work on 2 July 2012 was simply a continuation of the previous
suspension. As such it flew in
the face of the arbitration award.
More over the chairperson of the enquiry did not authorise it, as
clearly contemplated by
the provisions of the disciplinary code.
Obviously, if the respondent has bona fide reasons for a fresh
suspension, or can persuade the chairperson of the enquiry that
it
is justified and in keeping with the provisions of the disciplinary
code for the applicant to still be suspended in relation
to the
current proceedings, it might well succeed in having him suspended
at a later stage. However, the respondent's conduct
in implementing
the fresh suspension on 5 July 2012 was in flagrant disregard of the
award and the provisions of the disciplinary
code. The abrogation of
the applicant’s transient process rights in this regard is
sufficient to justify granting the applicant
relief. There is no
other suitable remedy which could afford him equivalent redress.
Order
in the light of the above, an order is granted in the following
terms:
The non-compliance with the normal rules governing the form and
service and timing of applications is condoned and the matter
is
dealt with as one of urgency;
The suspension of the applicant by the respondent on 5 July 2012 is
declared invalid being in contravention of clause 2.7 (2)
(c) of
the SMS Handbook and clause 7.2 of the disciplinary code and
procedure for the public service.
The respondent is interdicted from suspending the applicant in
relation to the disciplinary proceedings which are currently
set
down to continue on 23rd of July 2012 unless authorised by the
chairperson of those proceedings.
The arbitration award attached as Annexure “VM 16” to
the applicant's founding affidavit is made an order of court
in
terms of
section 158
(1) (c) of the
Labour Relations Act, 66 of
1995
.
The respondent must pay the applicant's costs on an attorney and
own client scale.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: B L Rhoode instructed by Deon de Bruyn Attorneys
FIRST RESPONDENT:
O
Mooki, instructed by Maserumule Attorneys
1
At
2449-2450
2
The
importance of the issue is alluded to in the
Lekabe
decision.
Support for the severity of the abuse of suspension is also
illustrated in a recent document entitled
Report on Management of
Precautionary Suspension in the Public Service
, July 2011,
Public Service Commission.