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[2012] ZALCJHB 192
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Baloyi v Minister of Communications and Others (J 1744/12) [2012] ZALCJHB 192; (2013) 34 ILJ 890 (LC) (20 July 2012)
REPUBLIC
OF SOUTH AFRICA
Reportable
THE LABOUR COURT
OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: J 1744/12
In
the matter between:
BASANI
BALOYI
....................................................................................................................
Applicant
And
MINISTER
OF COMMUNICATIONS
…....................................................................
1
st
Respondent
DIRECTOR
GENERAL
COMMUNICATIONS
….............................................................................................
2nd
Respondent
MEC
FOR SPORTS ARTS AND
CULTURE:
LIMPOPO
…............................................................................................
3rd
Respondent
DIRECTOR
GENERAL, SPORTS ARTS
AND
CULTURE: LIMPOPO
…..................................................................................
4th
Respondent
PREMIER
OF LIMPOPO
PROVINCE
......................................................................
5th
Respondent
GPSSBC
….....................................................................................................................
6th
Respondent
ADV
P H KIRSTEIN (N.O.)
…....................................................................................
7th
Respondent Heard: 17 July 2012
Delivered:
20 July 2012
Summary:
(Urgent - interdict ).
JUDGMENT
LAGRANGE,
J
Introduction
[1] The applicant in
this matter sought to prevent the continuation of predismissal
arbitration proceedings against him, which were
due to resume on 18
and 19 July 2012. The matter was heard on an urgent basis on 17 July
and the judgment handed down on 20 July
2012. By agreement the
continuation of proceedings on 18 and 19 July were postponed while
judgement was pending. The order is reproduced
at the end of the
judgment. My brief reasons are set out below.
Factual
background
[2]
The applicant was previously employed by the National Department of
Communications („the Department of Communications‟)
and
is currently employed by the Sports, Arts and Culture Department of
Limpopo province („the provincial SACD‟). She
resigned
from the Department of Communications with effect from 15 November
2011. Prior to her resignation the applicant and her
employer had
agreed to a pre-dismissal arbitration process arising from serious
charges of corruption involving tenders being levelled
against her.
For reasons which are unknown, the fact that she was facing this
enquiry at the time of her resignation did not hamper
her employment
by the provincial SACD. The pre-dismissal arbitration actually
commenced prior to her resignation but was postponed
several times.
[3] The Department
of Communications clearly felt that the applicant should not be
allowed to escape having to answer to the serious
charge of
misconduct against him by resigning and joining another State
Department. Consequently, towards the end of February 2012
the MEC of
the provincial SACD requesting the latter department to continue with
the incomplete pre-dismissal arbitration proceedings
it had been
unable to finalise before the applicant resigned. However, the MEC
explained that he was unable to pursue the matter
being unfamiliar
with all the factors surrounding the case and recommended that the
Department of Communications pursue the matter
as it deems fit.
Later, the directorgeneral of the provincial SACD conveyed to the
Minister that the executive authority of the
provincial Department
had "decided" that the Department of Communications should
continue with the enquiry, citing reasons
of convenience and
familiarity with the case as reasons for its view. The Minister was
clearly of the same view that it would be
best if the Department of
Communications managed the process itself and proceeded to request
the resumption of the pre-arbitration
hearing.
[4] The matter was
set down by the bargaining Council on 30 May 2012. The applicant did
not attend and when her attorney of record
was contacted he expressed
the view that the pre-dismissal arbitration could not continue
because his client had resigned from
the Department of
Communications. The respondents presented argument why the matter
should proceed in the absence of the applicant.
The chairperson
decided that the Minister of Communications had complied with section
16 (B) (4) of the Public Service Act (Proclamation
103 of 1994), and
had the necessary jurisdiction to proceed with the disciplinary
action against the applicant.
[5] Section16 B of
the Public Service Act („the PSA‟), states:
“
16B
Discipline
(1) Subject to
subsection (2), when a chairperson of a disciplinary hearing
pronounces a sanction in respect of an employee found
guilty of
misconduct, the following persons shall give effect to the sanction:
(a)
In
the case of a head of department, the relevant executive authority;
and
(b)
in
the case of any other employee, the relevant head of department.
(2)
Where
an employee may lodge an internal appeal provided for in a collective
agreement or in a determination in terms of section
3 (5), a sanction
referred to in subsection (1) may only be given effect to-
(a)
if
an internal appeal is lodged, after the appeal authority has
confirmed the sanction pronounced by the chairperson of a
disciplinary
hearing; or
(b)
if
no internal appeal is lodged, after the expiry of the period within
which the appeal must have been lodged.
(3)
The
Minister shall by regulation make provision for-
(a)
a
power for chairpersons of disciplinary hearings to summon employees
and other persons as witnesses, to cause an oath or affirmation
to be
administered to them, to examine them, and to call for the production
of books, documents and other objects; and
(b)
travel, subsistence and other costs and other fees for
witnesses at disciplinary hearings.
(4)
If
an employee of a department (in this subsection referred to as 'the
new department'), is alleged to have committed misconduct
in a
department
by whom he or she was employed
previously
(in paragraph (b) referred to as 'the
former department'),
the head of the new department
-
(a)
may
institute or continue disciplinary steps against that employee; and
(b)
shall
institute or continue such steps if so requested
-
(i)
by
the former executive authority if the relevant employee is a head of
department; or
(ii)
by
the head of the former department, in the case of any
other employee
.
(5)
In
order to give effect to subsection (4), the two relevant
departments shall co-operate, which may include exchanging
documents and furnishing such written and oral evidence as
may
be necessary
.
(6)
If
notice of a disciplinary hearing was given to an employee, the
relevant executive authority shall not agree to a period of notice
of
resignation which is shorter than the prescribed period of notice of
resignation applicable to that employee.”
(Emphasis added)
[6] In effect, the
applicant is asking the court to reconsider this jurisdictional
question on an urgent basis before the pre-dismissal
hearing
continues.
Merits
[7] The parties
agreed that the matter could be dealt with on the basis that it was
urgent. Although the relief sought had been
cast in the form of an
interim rule, in effect it was a request for a final order to stop
the first and second respondents continuing
with the pre-arbitration
proceedings.
[8] The applicant
contended that the MEC for SACD had no authority to authorise the
continuation of proceedings as the MEC is not
the head of the
provincial department who is the functionary empowered to institute
or continue proceedings in terms of 16B (4)
(a) or (b). Secondly, the
applicant said that the power of the head of the provincial SACD was
not one that could be delegated
to anyone else in terms of those
provisions. Therefore, the director-general of the provincial
Department could not hand back the
responsibility for continuing or
instituting the proceedings to the Department of Communications.
[9] Lastly, the
applicant argued that the agreement between the applicant and the
Department of Communications to a pre-dismissal
arbitration was not
an agreement that the provincial SACD could invoke and act on because
that agreement only applied to the applicant
and her former employer,
the Department of Communications. The applicant disputed the notion
that because both departments were
part of the state, the identity of
the employer remained unchanged.
[10] For their part,
the first and second respondents argued that the consent to the
pre-dismissal arbitration process was binding
on both parties and the
applicant could not resile from it without their consent. As in any
private arbitration, the seventh respondent
was seized with the
matter and was obliged to render a final and binding ruling.
[11] Contrary to the
applicants submissions, the respondents contend that the MEC‟s
decision to "authorise" them
to continue with the
pre-dismissal arbitration process was perfectly legitimate because
the State was a single employer and the
MEC was entitled to make this
decision on behalf of the state. Moreover, as the applicant had not
sought to set aside that decision,
it had to be accepted as valid and
binding.
[12] In addition,
section 16 B (4) was merely permissive and not mandatory, and did not
prohibit the Department of Communications
from continuing with the
enquiry itself merely because the provision did not spell this out.
In any event, the respondents argued,
the section does not apply to
prearbitration hearings but only to disciplinary hearings.
The relevance of
the applicant’s employment status
[13] The respondents
relied on the case of
Member of the Executive Council for
Transport: KwaZulu-Natal & others v Jele
[2004]
12 BLLR 1238
(LAC)
as support for their argument that the fact
that the applicant had resigned from one department and been employed
by another was
irrelevant because the two departments was simply
separate components of the state which constituted a unitary
employer. In
Jele, the employee in question had been refused
promotion into provincial Department that was different from the one
he was employed
in.
The cardinal question on appeal was whether
the employee could bring an unfair labour practices claim for unfair
promotion against
a department in which she was not employed. Zondo,
JP, as he then was, concluded:
From the
definition of the word “employee” in
section
213
of
the
Act, there can be
no doubt that the State is an employer. The respondent was employed
in a provincial government department. A provincial
government is
part of the State. Accordingly, unless there is a statutory provision
which suggests strongly that there is another
entity other than the
State which was the respondent’s employer, it should be
accepted, on the basis of the definition of
“
employee”
in
section
213
of
the Act and the fact that it is common cause that the respondent
worked in a provincial government department, that his employer
was
the State and that, if he had been appointed to the post, his
employer would have continued to be the State. Accordingly, the
definition of the word “employee” does not assist counsel
for the first and second appellants.”
1
[14] The same logic
would apply in the present matter. However, if that was the
determinative question in deciding whether the provincial
MEC could
reconvene the pre-arbitration hearing, then the provisions of section
16 B (4) would appear to be redundant. In this
regard, it is
noteworthy that the section was only promulgated in 2007, some three
years after the judgement in
Jele’s
case was reported.
[15]
I
believe the answer to this apparent conundrum lies not in identifying
the true employer, which clearly is the state, but in identifying
who
exercises the state‟s rights as employer vis-a-vis the
applicant. Even though employees engaged by various provincial
and
national departments are all employees of the State, the state
exercises its rights in relation to each of those employees
through
the mechanism of executive powers allocated to executive authorities
in those different departments whose remit does not
ordinarily extend
beyond the Department in question. Thus, for example, the decision to
employ someone as a public servant made
by the executive authority of
a particular department.
2
Similarly, it is the executive authority or the head of department
who is given the power to impose disciplinary sanctions on a
head of
department or other employee respectively.
3
It is for this reason that a provision like 16B(4) was enacted,
because the limited remit of an executive authority or head of
department in relation to employees employed in other departments,
means that once an employee of the state no longer works in
a
particular department, the executive authority or head of that
department has no authority over the employee.
[16] How does
section 16B(4) alter matters? It does not extend the power of an
executive authority in one department to take disciplinary
steps
against an employee employed on the authority of an executive
authority in a different department. Rather, it permits the
employee‟s current executive authority or head of Department,
as the case may be, to initiate or continue disciplinary measures
arising against the employee in the former department which employed
her. In the case of 16B(4)(a), it permits the head of Department
to
continue or Institute disciplinary steps against the employee for
misconduct allegedly committed in the employee's former department.
Section 16B(4)(b), obliges the employee's current head of Department
to institute or continue disciplinary proceedings if requested
by the
appropriate functionary in the employee's former department. In
essence, it expands the powers of the departmental head
in relation
to someone engaged by them to take disciplinary action against that
person for conduct arising in a prior employment
under different
authorities and public service. Although it expands the power of an
employee's current head of Department, it does
not go so far as
giving that head of Department the power to direct another head of
Department to continue disciplinary proceedings
in respect of a
person over whom she no longer exercises the power to impose
disciplinary sanctions.
[17] Mr Bhoda
suggested in argument that the obligation placed on the two
departments under s 16B(5) to cooperate in order to give
effect to
the provisions of s16B(4) includes an implied power to make an
arrangement under which the former department can by arrangement
assume the responsibilities of the applicant's current Department
under subsection (4).
However, the
cooperation envisaged is for the purposes of “giving effect to
subsection (4)”. That sub-section provides
for the current
Department to continue with disciplinary measures and not for the
former department to do so. Of course that does
not mean that the
former department would not be able to render substantial assistance
to the current Department so that the latter
can conduct the
disciplinary proceedings but it is the current Department which has
the non-delagable responsibility to continue
or institute those
proceedings.
[18] The applicant
relied on the recently reported decision of
Hlabangwane v
MEC
for Public Works, Roads & Transport, Mpumulanga Provincial
Government &
others
(2012) 33 ILJ 1195 (LC)
. In that case the
employee‟s former department instituted disciplinary measures
against him after he had been transferred
to a different department.
As Molahlehi, J put it there:
“
[22] It is
clear from a reading of s 16B(4) of the PSA that the power of the
former department to institute or even to proceed with
the
disciplinary
hearing after the transfer has taken place
is taken away. In other words, the former department loses the right
to continue with
disciplinary proceedings when the transfer takes
effect.
[23]
In my view the first respondent, in seeking to continue the
disciplinary hearing after the transfer of the applicant,
is
exercising a power he
or
she does not have and is thus acting ultra vires his or her powers.”
2
[19] The respondent
argued that the finding at paragraph [22] was obiter and the facts in
that matter were distinguishable from
this case, in particular
because no pre-dismissal arbitration agreement was involved. Be that
as it may, the learned judge‟s
reasoning on the powers of the
former head of department in relation to the disciplining of an
employee now working in another
department is correct in my view.
[20] I appreciate
that practical difficulties can arise if the employee‟s current
department is reluctant to deal with the
disciplinary baggage of the
employee from other departments, but under s16B(4)(b) the current
department must continue with such
action, or initiate it, if
requested to do so by the relevant authority in the employee‟s
previous department.
Accordingly, the
first and second respondent‟s are not without a remedy.
[21] However, in
terms of s 16B(4) they cannot step into the shoes of the provincial
DCSA and initiate or continue the proceedings
themselves, where the
latter department has no authority to delegate the same.
Order
[22] Accordingly, I
handed down the order below:
22.1 The first and
second respondents are not empowered to institute or continue with
disciplinary steps against the Applicant.
22.2 The
jurisdictional ruling issued by the seventh respondent on 30 May 2012
is a nullity and is unenforceable.
22.3 The sixth and
seventh respondents are prohibited from proceeding with the
pre-dismissal arbitration scheduled originally for
18 to 19 July 2012
and stayed pending the outcome of this application.
22.4 The first and
second respondents are jointly and severally liable for the
applicant‟s costs, the one paying the other
to be absolved.
______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
G Moshoana of Mhlaba Mashoana Inc.
FIRST AND SECOND
RESPONDENTS:
F A Bhoda instructed by Verveen Attorneys
1
At
1238,[17]
2
S
9 of the PSA reads:
“
9
Appointments in public service
An
executive authority may appoint any person in his or her department
in accordance with this Act and in such manner and on such
conditions as may be prescribed.”
3
S 16B(1)(a) and (b) of the PSA
2
At 1202