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[2014] ZALCJHB 188
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Bongani v Evangelic Lutheran Church In Southern Africa (J1101/14) [2014] ZALCJHB 188 (28 May 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: J1101/14
In
the matter between:
ZULU, BONGANI
Applicant
AND
EVANGELICAL
LUTHERAN CHURCH IN SOUTHERN AFRICA
Respondent
Heard:
15 May 2014
Delivered:
28 May 2014
Summary:
(Enforcement of a settlement agreement)
FINAL
order
LAGRANGE,
J
[1]
In this matter, I made an interim order on
19 May 2014 pending judgment which was postponed to 27 May 2014 and
subsequently to 28
May 2014.
[2]
The applicant sought a final order on an
urgent basis, making a settlement agreement concluded between the
parties on 24 April 2014
an order of court, compelling the respondent
to uplift the applicant’s suspension and preventing the
respondent from taking
disciplinary action against him in respect of
the matters which gave rise to his suspension on 12 February 2014.
[3]
The applicant is employed by the respondent
as its General Treasurer, a position he has occupied since 1999
during his working life
with the respondent of approximately […....]
years. He was initially suspended in July 2013 because of the work of
an investigation
task team into all financially related matters.
Following representations he made opposing his suspension, he was
subsequently
allowed to return to work in August 2013. There were
intimations from the presiding bishop of a further imminent
suspension in
September 2013, but nothing came of this. It was only
on 12 February 2014 that he was suspended again. This time it was
pending
an investigation into whether he was meeting performance
standards on technical output and managing the reports functions of
subordinates
and to superiors, as well as allegations of
insubordination and inappropriate conduct. The applicant referred an
unfair suspension
dispute to the CCMA.
[4]
The matter was set down for a hearing on 25
April 2014, but the parties concluded a settlement agreement of the
previous day. The
material terms of the agreement read:
"1
Settlement of
Dispute
1.1
The respondent will notify the applicant of charges of misconduct
and/or allegations of
his failure to meet performance standards by no
later than to May 2014 and will simultaneously notify the applicant
where and when
he is required to report for a hearing into such
charges and/or allegations.
1.2
Should the respondent not have proceeded in a manner set out in 1.1,
the applicant shall
be entitled to resume his duties on Monday, 5 May
2014 without any further threat of suspension or disciplinary action
being taken
against him in relation to those matters which gave rise
to his suspension of 12 February 2014.
1.3
The earliest date for the hearing of charges and/or allegations
against the applicant will
be a date not less than five consecutive
days after the date on which any notification is served on the
applicant, so as to 14
adequate opportunity to consult with his
attorney in preparation for any hearing that may be convened..."
[5]
Prior to the conclusion of the agreement
the parties’ legal representatives had exchanged correspondence
in which the applicant
had made it clear that he would continue with
his unfair labour practice dispute unless amongst other things
charges were formulated
by the respondent and a date for a hearing
was determined. The respondent’s attorney indicated on 22 April
2014 that the
respondent would formulate a charge sheet, whether for
misconduct or capacity, which would be forwarded to the applicant by
Tuesday
29 April at the latest.
[6]
Despite the settlement agreement being
signed by the respondent on 24 April 2014, when the applicant
attended the CCMA proceeding
the following day, the respondent’s
delegation advised the Commissioner they were not aware of the
settlement agreement.
After reading a copy of it provided by the
applicant both parties signed an agreement that the dispute at the
CCMA could be withdrawn.
[7]
On 30 April 2013 the applicant was provided
with an extensive charge sheet which included a charge that he had
behaved dishonestly
in attending the CCMA hearing on 25 April 2014
and engaging the employer without advising that the dispute was
already settled.
The charge sheet was sent under cover of an e-mail
from the respondent's attorneys in which she stated:
"Kindly note that we
are currently waiting to obtain instructions from our client with
regard to the application of a suitable
date and time for the hearing
of the disciplinary enquiry. We confirm that you will be duly
informed as soon as we receive confirmation
from our client for the
date and time scheduled for the hearing of the disciplinary enquiry."
[8]
By 2 May 2014, the respondent ought to have
provided the applicant with the details of when and where he was
obliged to report for
a disciplinary enquiry. In consequence of the
respondent's non-compliance with this provision the applicant
reported for duty on
5 May 2014 in accordance with clause 1.2 of the
settlement agreement. He presented a letter from his attorney to the
respondent's
general secretary in which it recorded his view that the
respondent had failed to comply with the provisions of clauses 1.1
and
1.2 of the agreement and demanding that he be permitted to have
access to his workstation and all amenities to enable him to carry
out the work he performed for his suspension in February 2014. He was
advised that he would be phoned before 12 o’clock,
but his
attorney was contacted by the respondent's attorney who advised him
that the respondent would not allow him to resume his
duties.
Accordingly he left the office.
[9]
Later that day, the respondent's attorney
sent his attorney a letter in which it was stated that he had
suffered no prejudice when
he was not informed of the scheduled date
of the enquiry on receipt of the charges on 30 April 2014 as the
enquiry still could
not be held for another five working days after 5
May 2014. The letter condemned the applicant's return to work that
day as opportunistic
in the light of the charges against him and
advised that: "[w]e now confirm that an enquiry will be held in
the week 12 May
2014 to 16 May 2014, the details of which will be
confirmed with your office before close of business today."
[10]
Despite the undertaking to provide details
of the enquiry that day it was only on 8 May 2014 that the applicant
was advised the
respondent would hold the enquiry on 21 May 2014.
[11]
The application was launched on 12 May
2014, four days after receipt of the notice of the hearing date. The
urgency of the application
was premised on the respondent’s
clear intention to proceed with the enquiry on 21 May 2014.
Evaluation
[12]
It is common cause the respondent did not
comply with the letter of clause 1.2 of the agreement by 2 May 2014.
Although it provided
details of the charges and allegations as
required by clause 1.1 of the agreement, it failed to provide details
of the venue and
timing of the hearing. The missing details were only
provided nearly a week after the due date. Clause 1.2 of the
agreement provided
in unequivocal terms what the consequence of
non-compliance with the provisions of clause 1.1 could be and the
applicant elected
to resume his duties on 5 May 2014 as he was
entitled to do.
[13]
The respondent defends its non-compliance
on two grounds. Firstly, it claims that on 30 April 2014, due to
practical considerations,
it was impossible for it to confirm the
date and venue for the disciplinary enquiry. As such, the respondent
suggests the applicant
could not rely on its non-compliance with the
provision in circumstances where it was impossible to do so within
the timeframe
of the settlement agreement. Secondly, it argues that
the applicant suffered no real prejudice as a result of the delay and
emphasised
the importance to the organisation of taking disciplinary
steps in such circumstances.
[14]
The applicant argues that he was entitled
to insist on strict compliance with the terms of the agreement and
therefore could return
to work without the threat of facing charges
premised on the respondent's investigations. What is notable about
the terms of the
settlement agreement is the inclusion of clause 1.2
which vested a clear right in the applicant to return to work without
having
to answer charges arising from the respondents prior
investigations. Thus, the consequence of non-compliance with clause
1.1 was
unequivocally clear and serious, because it effectively
permitted the permanent scrapping of disciplinary proceedings the
respondent
was planning to bring on the basis of its investigations.
Given the serious consequence of non-compliance with clause 1.1 there
is simply no basis for interpreting a breach of clause 1.1 as a
non-material breach of the agreement. The respondent ought to have
been on its guard to prevent the possibility of the applicant
invoking clause 1.2 in consequence of any laxity on its part in
complying with clause 1.1. It should be mentioned in this regard that
the importance of pinning down the proceedings in terms of
the
charges and timing thereof must be understood in the context of the
prevarication on the part of the respondent in finalising
disciplinary matters since mid 2013, when the issues giving rise to
the charges first surfaced.
[15]
The consequence may seem harsh and the
respondent may well argue that the prejudice to the applicant of
having to suffer the uncertainty
of when and where his enquiry might
take place was not substantial. However, the harsh consequences
flowing from the application
of clause 1.2 are ones that it is agreed
to and could not have been unaware of. The argument it presents
suggesting that it could
not comply with the timeframe is simply not
persuasive on the evidence. Nothing concrete was placed before the
court to show that
it was simply untenable for reasons beyond the
respondent's control for it to determine a date and time for the
venue by 2 May
2014.
[16]
For these reasons, I am satisfied that the
applicant was entitled to invoke the provisions of clause 1.2 of the
settlement agreement
and is entitled to return to work unencumbered
by the prospect of pending disciplinary action arising from the
respondent's investigations.
[17]
The settlement agreement is unambiguous in
its terms and the obligations of the parties under it are not in
doubt. It is also a
settlement of a dispute which the applicant was
entitled to refer to arbitration under the Labour Relations Act, 66
of 1995 ('
the LRA'). The respondent had demonstrated it did not
intend to comply with it except on its own terms. Accordingly
satisfied that
the requirements for making the settlement agreement
an order of court in terms of section 158 (1) (a) of the LRA have
been met.
[18]
Lastly, the applicant had been compelled to
act when the respondent made it clear that it was intending to
proceed to hold the enquiry
on 21 May 2014 and would not allow him to
return to work. I believe the applicant acted with reasonable
expedition in launching
the application when he did.
[19]
On the question of costs, given the clear
terms of the agreement it should never have been necessary for the
applicant to incur
the expense of bringing this application and even
though there is an ongoing relationship between the parties I believe
it would
only be fair for the respondent to bear his costs.
Order
[20]
In light of the above, it is ordered that:
20.1
the matter is dealt with as one of urgency
dispensing with the rules governing the time periods for filing
pleadings;
20.2
the settlement agreement concluded between
the applicant and the respondent on 24 April 2014 is made in order of
court in terms
of section 158 (1) (c) of the LRA;
20.3
the respondent is ordered to uplift the
applicant’s suspension of 12 February so that he may resume his
duties;
20.4
the respondent is interdicted from
instituting and, or alternatively proceeding with disciplinary action
against the applicant in
respect of those matters that gave rise to
the applicant’s suspension on 12 February 2014, and
20.5
the respondent must pay the applicant's
costs.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
S Collet instructed by K McDade
For the Respondent: J W
Lamprecht instructed by I Vorster of Stegmanns Inc