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[2014] ZALCJHB 93
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Chauke v PAN South African Language Board and Another (J690/14) [2014] ZALCJHB 93 (2 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: J 690/14
In
the matter between:
MIKATEKO
FLOYD CHAUKE
First
Applicant
and
PAN
SOUTH AFRICAN LANGUAGE BOARD
First
Respondent
MXOLISI
ZWANE
Second
Respondent
Heard:
27 March 2014
Delivered:
28 March 2014
Reasons
filed:
02 April 2014
Summary:
(Urgent – application for upliftment of suspension pending
determination of unfair labour practice dispute
– Prima facie
case of improper motive for suspensions rendering them unlawful –
Alleged occupational detriment - Precautionary
suspension employer
wrongly placing onus on employee to justify continued presence at the
workplace – Costs – poor
handling of application wasting
court and respondent’s time – applicants not entitled to
costs).
REASONS
FOR JUDGMENT
LAGRANGE,
J
Introduction
[1]
On 28 March 2014 an order was handed down
in the following terms:
“
Order
a.
The matter is heard as one of urgency
dispensing with the ordinary rules relating to time limits and
service as envisaged in Rule
8.
b.
The respondents’ suspension of the
first to fifth applicants on 19 March 2019 is set aside and the
respondents must allow
the said applicants to return to work with
effect from 31 March 2014, pending the outcome of the unfair labour
practice dispute
referred to the Commission for Conciliation,
Mediation and Arbitration as set out in Annexures “KFC 24-30”
to the founding
affidavit.
c.
The parties are to pay their own costs
[2]
This is application takes place in the
context of a torrent of urgent litigation between the respondents and
a number of its employees.
At the heart of the matter is a complaint
that the second respondent who has been variously referred to as the
first respondent’s
‘Administrator’, ‘CEO','
acting CEO' or 'caretaker CEO' is not the properly appointed
executing authority of
the first respondent. In consequence, various
actions taken by him have been challenged at least in part on the
basis of his alleged
lack of executive authority, including his
alleged unlawful appointment of a number of staff and retaliatory
steps allegedly taken
against employees of the first respondent who
complained about those appointments.
[3]
There is already an application pending
before this court which seeks to invalidate the second respondents
appointment as CEO and
his subsequent appointment of a number of
other employees, but for reasons which remained obscure has not yet
been set down for
a hearing. The applicants in this matter are among
the 26 applicants in that application bearing case number J 157/2014
(‘the
main application’).
[4]
The affidavits in this matter also allude
to an application brought by another employee of the respondent in
the North Gauteng High
Court under case number 64982/12 which was
apparently dismissed on the merits. However no copy of the judgement
was made available
to the court by either party, so the actual
findings of the High Court and the legal consequences of that
decision for second respondent’s
status as the executing
authority of the first respondent remain uncertain.
[5]
In this application the individual
applicants sought to set aside their allegedly unlawful suspension
from their duties by the second
respondent while an investigation is
being conducted into whether they were implicated in various
disclosures made to the press
about the affairs of the first
respondent and the second respondent’s role therein. They also
sought to interdict anticipated
disciplinary a. The relief is sought
on an interim basis pending the finalisation of the main application
above and the finalisation
of their unfair labour practice dispute
arising from the suspension.
[6]
The applicants claim that on or about 5
February 2014 the second respondent met with union officials and had
suggested to them that
the 26 employees who had initiated the
application to set aside his own appointment and other staff
appointments should be placed
on special leave because of tension
between them and the newly appointed staff. The proposal of taking
special leave was rejected
and in early March 2014 the applicants in
this matter were served with notices that they were being placed on
precautionary suspension.
These suspensions were duly challenged and
shortly prior to the scheduled hearing by this court, the respondents
relented and withdrew
the letters of suspension, no doubt having
realised that they could not defend the suspensions in the absence of
first having given
the applicants an opportunity to make
representations on why they should not be suspended.
[7]
A week after the suspensions were withdrawn
the second respondent issued the applicants with notices of intended
suspension pending
the outcome of an investigation into allegations
of misconduct against them concerning the alleged disclosure of
confidential information
of the first respondent to the press and the
unauthorised use of the first respondent’s equipment and
resources to make copies
of documents supposedly provided to the
press. The letters concluded with the following:
"You are hereby
called upon to show cause why you should not be suspended pending the
investigation into the above-mentioned
allegations.
In your written
representation you must specifically show cause why your continued
presence at the workplace while the investigation
is being pursued
will not jeopardise the investigation itself and/or interfere with
the evidence and/or potential witnesses."
[8]
The respondent itself did not provide its
own reasons why it believed the suspensions were necessary, but
imposed a duty on the
applicants to show that there were no reasons
to justify their suspension. Nonetheless, the applicants responded in
some detail
in the course of which they claimed, amongst other
things, that:
8.1
investigations had already been
conducted without them being removed from the workplace and without
them hindering its progress
thus far;
8.2
they were unaware of any witnesses they
might potentially interfere with or what evidence they might tamper
with, which could not
be secured without them being absent from work;
8.3
the press report which prompted the
investigation appeared to have been based on the founding affidavit
in their main application
and hence was information publicly
available and there was no basis for believing it was obtained from
one of the applicants by
other means, and
8.4
that there was no basis for the complaint
of an authorised copying.
[9
]
On 19 March 2014, despite the very detailed
representations made by the applicants, which contrast with the
paucity of motivation
provided by the respondents in support of the
proposed suspension, the second respondent suspended the applicants.
Paradoxically,
given the lack of detail in his own letters to them of
12 March 2014, the second respondent stated in the suspension letter
to
the applicants that:
"I noticed
that
you failed to respond adequately to the allegations raised in that
notice except to make a bear [sic] denial
.
Taking into account the
seriousness of the allegations levelled against you which allegations
some of them places the organisation
at risk of being sued, I have
decided to authorise that there should be a further investigation on
the matter.”
(emphasis added)
[10]
The applicants’ representative,
Mr
Faku
, argued that the suspensions were
not
bona fide
and that the respondents had wrongly cast the obligation on the
applicants to provide reasons why they should not be suspended
rather
than providing them with its own reasons for the proposed
retrenchment for their consideration and response. He argued,
in
effect that the suspensions had been implemented in bad faith, or for
an improper purpose, because the employer had not genuinely
intended
to consider any representations from the employees before suspending
them but had merely been going through the motions
to implement a
decision which it had already previously taken when it issued the
first notices of suspension to them on 4 March
2014. He further
pointed out that the initial suspensions had followed shortly after
the 26 applicants in the main application
had rejected the
respondent's proposal to place them on special leave. He inferred
that having been thwarted in that initiative
to remove the applicants
from the workplace, the respondent was now embarking on a more
gradual alternative method of doing so
by means of the suspension
procedures it had invoked
[11]
In this regard, it is noteworthy that the
respondents do not deny, except in the broadest terms, that a meeting
as described by
the applicants took place on five February, in which
the second respondent proposed placing the applicants in the main
application
on special leave because of tension between them and the
newly appointed staff. It is simply insufficient to issue a broad
denial
of such allegations without clarifying the nature of the
denial. A broad denial of this nature could mean that the respondents
deny each and every allegation, which is not expressly stated in
those terms by the respondents, or it could simply mean that they
deny one element of those allegations and by association dispute the
remaining averments. By way of illustration, the respondents
may
simply be denying that a meeting as alleged to place on or about 5
February 2014 and therefore denied that there was a proposal
to place
applicants on special leave on that day. What the bald denial does
not explain is whether such a meeting took place but
on a different
day, or whether there was a proposal to place the applicants on
special leave but it was not conveyed in the meeting
as alleged. The
respondents failed to take the court into their confidence in
explaining the nature of their denial, and consequently
create
uncertainty about what they dispute.
[12]
The regulation governing precautionary
suspension of the first respondent’s employees states:
“
17.
Subject to section 33 of the Constitution and the provisions of the
Promotion of Administrative Justice Ac2t0, 00
(Act
No. 3 of 2000) –
(a)
the chief executive officer may, at any
time before, while or after
a
member
of staff is or has been charged with misconduct, suspend the member
of staff from duty until an investigation or disciplinary
hearing
with regard to that charge, as contemplated in regulation 16, has
been completed;
(b)
the chairperson may, at any time before, while or after the chief
executive officer is or has been charged with misconduct,
suspend him
or her from duty until an investigation or disciplinary hearing with
regard to that charge, as contemplated in regulation
16, has been
completed.”
[1]
[13]
Given
the date of the regulations, they plainly pre-dated decisions such as
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23
;
2008
(4) SA 367
(CC)
and
Gcaba
V Minister For Safety And Security and others
2010
(1) SA 238
(CC)¸
which
had the effect of rendering the law of fair administrative action and
the Promotion of Administrative Justice Act (‘PAJA’)
largely, if not wholly, inapplicable to relations between the state
and its employees. Nonetheless, it seems at the time the respondent’s
regulations were promulgated it was clearly understood and intended
that the suspension of employees would have to conform to the
requirements of fair administrative action contained in PAJA and the
Constitution. The fact that this regulation has not been amended
in
the wake of those decisions, suggests that the intention of
incorporating the principles of fair administrative action in the
regulation pertaining to suspension remains unchanged.
Preliminary
issues
[14]
Both parties raised a number of preliminary
issues. The applicants sought to contest the authority of the second
respondent to oppose
the application based on the challenge to the
validity of his appointment. Similarly, the respondents complained
that in the absence
of confirmatory affidavits filed by the second to
fourth applicants, the first applicant lacked authority to depose to
the founding
affidavit on their behalf. The respondents also pointed
out that the founding affidavit did not strictly meet the
requirements
of rule 7 of the Labour Court in that there were pages
and annexures missing from the application.
[15]
I declined to entertain the challenge to
the second respondent's authority given the existence of the pending
application to determine
that and other issues under Case number
J157/2014. In the course of debating the pending status of that
application I could not
get a clear answer why no attempt has been
made to prioritise the enrolment of that matter when it could have a
decisive impact
on other pending disputes involving the respondents
and employees of the first respondent. On the face of it, the
enrolment of
that case for a hearing should be expedited in the
interests of all parties and the effective management of the court’s
roll.
[16]
On the procedural defects in the
application, I am satisfied that even though the confirmatory
affidavits of the second to fourth
applicants were not filed together
with the founding papers, they were able to adequately respond to the
applicants’ founding
papers by way of their answering affidavit
by 27 March 2014 even if that was outside of the deadline imposed by
the applicant.
Moreover, most of the documentary annexures to the
founding affidavit are ones that the respondents would have copies
of, unlike
the court. On balance, I am satisfied that the even though
the respondents might have been unnecessarily inconvenienced by the
filing of the incomplete papers, ultimately they were in a position
to address the merits of the application, and indeed did so.
[17]
Nonetheless, as I pointed out to
Mr
Faku
in court, the filed application
did not meet the standards the Court is entitled to expect from an
attorney, and these omissions
were compounded by his failure to
paginate the court file. The court was hampered by the absence of
necessary documents in preparing
to hear the matter. In the
circumstances, even though the applicants who are ultimately
successful on the merits of the application,
I do not believe they
are entitled to their costs because of the shambolic manner in which
the matter was placed before the court.
Evaluation
[18]
The application is one for interim relief
pending the finalisation of the unfair suspension dispute referred to
the CCMA and the
main application pending before this court. Since
the main application has been pending long enough for the applicants
to seek
its enrolment on a semi-urgent basis and no date of set down
has been determined yet, it would be highly speculative to anticipate
any early resolution of that matter at this stage. In any event,
judgement in that matter will not necessarily be determinative
of the
fairness or lawfulness of the applicants’ suspensions.
[19]
On the other hand, there is no reason why a
hearing on the fairness of the suspensions under the auspices of the
CCMA could not
be convened without undue delay and the outcome of
that matter, will finalise the unfair labour practice dispute arising
from the
suspensions.
[20]
In essence, it seems to me that the
challenge raised by the applicants to the fairness of their
suspension is procedural and substantive.
It is procedural in the
sense that they argue the employer ought to have set out its own
reasons why it was contemplating their
suspension so that they could
respond to those reasons rather than them having to first make out a
case why they ought not to be
suspended. Secondly, the applicants
dispute the
bona fides
of the respondents in ordering their suspension. Effectively, they
suggest that it is an act of retaliation for their institution
of the
main application proceedings. Moreover they contend that the press
report which so upset the respondents contained nothing
that was not
a matter of public record and accordingly disciplinary action
relating to such disclosure as the respondents alleged
is not
justified. Related to their claim that the suspensions are not a
bona
fide
reason, the applicants invoke the
protection of the Protected Disclosures Act 26 of 2000 (‘the
PDA’).
[21]
They
claim that even though they do not admit to have made the disclosure
to the press complained of by the respondent in the charges
under
contemplation, which are described in the notice of intention to
suspend, they also allege that in the course of instructing
their
attorney in the main application they have made disclosures to him of
irregular conduct, alleged financial misconduct and
the like about
the second respondent, which he has not disputed. They claim
that these disclosures amount to protected disclosures
in terms of
the PDA
[2]
and that their
suspension followed the making of these disclosures in the founding
affidavit amounted to an occupational detriment.
They identified the
source of the press report for which the respondents are
contemplating disciplinary action against them as
being the founding
affidavit. They contend their suspension is also unlawful on this
account. Such a claim is an issue that might
constitute an unfair
labour practice, to be determined ultimately in the Labour Court if
it cannot be resolved by conciliation
in the CCMA. Insofar as they
appear to be alleging that the suspension is substantively unfair
because it relates to a prohibited
reason, that is a matter which
might ultimately come to this court for determination as it falls
within its jurisdiction.
[22]
On what is before me, there seems to be
good reason to believe that an improper motive might lie behind the
ostensible reason given
for the suspensions. This concern is also
reinforced by the way in which the second respondent motivated his
intention to suspend
the applicants and the way he responded to their
quite detailed representations. In characterising those
representations as ‘a
bare denial’, which is quite
obviously wrong, it is difficult to believe that the second
respondent even applied his mind
to them before deciding to press
ahead with the suspensions. Even if the respondent did not set out in
any detail his motivation
of the perceived need to suspend the
applicants pending the outcome of the investigation, he has also not
made any greater attempt
to explain his reasoning to the court. He
also has not made any attempt to explain why the applicants claim in
their representations
to the effect that investigations have already
been conducted and without hindrance is not a correct representation
of the factual
position. The second respondent has placed nothing
before the court to explain why the investigation mentioned by the
applicants
was incomplete or on what basis he suspects they might
interfere with any further investigation based on the conduct of the
investigation
thus far. Instead of elaborating on the justification
for the suspension, the respondents merely reiterated in a wooden
manner
how the necessary procedural steps had been taken before
suspending them. Nowhere in the answering affidavit do the
respondents
provide the basis for a reasonable suspicion on their
part and that the applicants would interfere with any further
investigations.
[23]
In the circumstances, I believe that the
respondent has failed to demonstrate that there is a
prima
facie
justification for the suspensions
on an objective basis either arising from the nature of the possible
charges against them, or
that there is a reasonable basis for
suspecting that any further investigations might be prejudiced by the
applicants remaining
at work pending the outcome of the CCMA
proceedings to make a final determination on the fairness of the
suspensions. The balance
of convenience favours uplifting the
suspensions pending the outcome of the CCMA proceedings.
[24]
Given the respondent’s failure to
provide any substantiation of a sufficient reason to justify the
suspension decision, coupled
with the
prima
facie
evidence that it may be for an
improper motive which may also entail the suspension being found to
be unlawful and, or alternatively
an unfair labour practice in terms
of section 4(2)(b) of the PDA on account of amounting to an
occupational detriment, I am satisfied
that the applicants have
established a right though open to some doubt, to interim relief to
stay the imposition of suspension
on the basis that there is reason
to believe that it was initiated for an improper purpose which would
render it unlawful, or that
the suspensions amount to occupational
detriments.
[25]
In the circumstances I consider it would be
appropriate to uplift the suspensions at least pending the outcome of
the CCMA proceedings
arising from the unfair labour practice referral
which would obviously also entail at least the conciliation of the
PDA related
version of the unfair labour practice.
[26]
Although
the CCMA may not adjudicate on an unfair labour practice claim
relating to an occupational detriment under the PDA, the
first stage
for considering that dispute is conciliation of the alleged unfair
labour practice at the CCMA.
[3]
The upshot of that might be that one or more strands of the unfair
labour claim arising from the suspension may be settled, or
the
applicants might abandon the unfair labour practice claim relating to
an occupational detriment and pursue only an ordinary
unfair labour
practice claim on the substantive and procedural unfairness of the
suspensions, or they may elect to refer the claim
based on an alleged
occupational detriment to the Labour Court for adjudication. In any
event there would be an outcome of the
dispute referral, at which
juncture the ongoing status of the suspensions could be reconsidered
in the light of the developments
to date. I do not think it would be
wise to extend the upliftment of the suspensions beyond that point,
because if the employer
wished to resume the suspensions at that
stage, assuming that option is still open to it, the circumstances
prevailing then might
be different, and might require
re-consideration of whether the upliftment of the suspensions should
be extended further.
_______________________
R LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicants: T Faku of Faku Attorneys
For
the Respondents: E M Baloyi-Mere instructed by M B Mokoena
[1]
Published
in
Regulation
Gazette
No.
7354, 10 May 2002, GG No. 23404
[2]
The
relevant provision being s 5 of the PDA though not expressly
referred to in the founding affidavit.
[3]
See
s 4(2)(b) of the PDA.