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[2014] ZALCCT 63
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Du Plessis v Nevhutalu obo Cape Peninsula University of Technology and Another (C817/2014) [2014] ZALCCT 63 (18 November 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Of
interest to other judges
Case
no: C 817/2014
In
the matter between:
CLEMENT
ROLAND DU PLESSIS
Applicant
and
DR
PRINS NEVHUTALU obo
cape
peninsula university of technology
First
respondent
ARTHI
SINGH-BOOPCHAND N.O.
obo
IR
CHANGE
Second
respondent
Heard
:
14 November 2014
Delivered
:
18 November 2014
Summary:
Review – pre-dismissal
arbitration – jurisdictional ruling.
JURISDICTIONAL
RULING
STEENKAMP
J
Introduction
[1]
The applicant, Mr Clement du Plessis, was a
lecturer in the media and journalism department of the Cape Peninsula
University of
Technology (CPUT). He was dismissed after it was found
that he had sexually harassed students.
[2]
The
applicant launched an application for review on the basis that his
dismissal arose from an award by the second respondent, Arthi
Singh-Boopchand, sitting as an arbitrator in a pre-dismissal
arbitration as contemplated in section 188A of the Labour Relations
Act.
[1]
He alleges that the
arbitrator committed a gross irregularity in the proceedings.
[3]
The respondents did not deliver a record as
contemplated in rule 7A. The applicant brought an application to
compel them to do so.
That application was set down for hearing on
Friday, 14 November 2014. The respondents oppose the application and
raised a preliminary
point that this court does not have
jurisdiction, as the applicant was dismissed pursuant to a
disciplinary hearing and not a pre-dismissal
arbitration.
Point
in limine
[4]
The respondents say that CPUT initiated an
internal disciplinary hearing, albeit chaired by an independent
chairperson (the second
respondent). The University then dismissed
the applicant on the recommendation of the chairperson. The
applicant’s recourse,
if any, in terms of s 191(1) read with s
136(1) of the LRA lies with the CCMA and not with this Court. This
Court, they argue,
does not have jurisdiction to hear an application
for review in this context.
Evaluation
[5]
Section 188A provides for the following
procedure:
“
188A.
Agreement for pre-dismissal arbitration
(1)
An employer may, with the consent of the employee, request a council,
an accredited agency or the Commission to conduct an arbitration into
allegations about the conduct or capacity of that employee.
(2)
The request must be in the prescribed form.
(3)
The council, accredited agency or the Commission must appoint an
arbitrator
on receipt of –
(a) payment by the
employer of the prescribed fee; and
(b) the employee’s
written consent to the inquiry.
(4)
(a) An employee may only consent to a pre-dismissal arbitration after
the employee has been advised
of the allegation referred to in
subsection (1) and in respect of a specific arbitration.
(b) Despite subparagraph
(a), an employee earning more than the amount determined by the
Minister in terms of section 6(3) of the
Basic Conditions of
Employment Act, may consent to the holding of a pre-dismissal
arbitration in a contract of employment.
(5)
In any arbitration in terms of this section a party to the dispute
may
appear in person or be represented only by –
(a) a co-employee
(b) a director or
employee, if the party is a juristic person
(c) any member,
officer bearer or official of that party’s registered trade
union or registered employers’ organisation;
or
(d) a legal practitioner,
o agreement between the parties.
(6)
Section 138, read with the changes required by the context, applies
to
any arbitration in terms of this section.
(7)
An arbitrator appointed in terms of this section has all the powers
conferred
on a commissioner by section 142(1)(a) to (e), (2) and (7)
to (9), read with the changes required by the context, and any
reference
in that section to the director for the purpose of this
section, must be read as a reference to –
(a) the secretary of the
council, it the arbitration is held under the auspices of the
council;
(b) the director of the
accredited agency, if the arbitration is held under the auspices of
an accredited agency.
(8)
The provision of sections 143 to 146 apply to any award made by an
arbitrator
in terms of this section.
(9)
An arbitrator conducting an arbitration in terms of this section
must,
in the light of the evidence presented and by reference to the
criteria of fairness in the Act, direct what action, if any, should
be taken against the employee.
(10)
(a) A private agency may only conduct an arbitration in
terms of this section
if it is accredited for this purpose by the
Commission.
(b)
A council may only conduct an arbitration in terms of this section in
respect of which the employer or the employee
is not a party to the
council, if the council has been accredited for this purpose by the
Commission.”
[6]
A number of points are immediately apparent
from the wording of this section. Firstly, the employee must consent
to the process.
Secondly, the employer must request the CCMA, a
bargaining council or an accredited agency in the prescribed form to
appoint an
arbitrator. Thirdly, that agency must appoint an
arbitrator on receipt of a prescribed fee and the employee’s
written consent
to the enquiry. Fourthly, an employee may only
consent to the process after he has been advised of the allegation
against him and
in respect of a specific arbitration.
[7]
None of these prerequisites are met in the
current instance. The employee did not consent to a pre-dismissal
arbitration in respect
of the specific allegations against him and in
respect of a specific arbitration. The reasons may be understandable
given the context
that I will address shortly, but that remains the
situation as a matter of fact. And although the second respondent is
a panellist
of an entity called IRChange, it is not clear whether
that is an accredited agency; and in any event the University did not
pay
that entity a prescribed fee; nor did it present IRChange with
the employees written consent to the enquiry or pay it the prescribed
fee.
[8]
It
is perhaps significant that this section was amended with the
promulgation of the Labour Relations Amendment Act
[2]
on 18 August 2014. However, the amendments have not yet come into
effect. The amended section 188A provides for an enquiry by an
arbitrator in accordance with a collective agreement. That makes it
clear that the section as it stands does not permit the introduction
of such a process by collective agreement. The amended subsection
4(b) also removes the prerequisite that an employee may only
agree to
this process in respect of a specific arbitration. Again, that makes
it abundantly clear that, as the law stands, the
employee may only
agree to a pre-dismissal arbitration in respect of a specific
allegation of misconduct and in respect of a specific
arbitration. In
terms of the amended subsection 4(c), an employee earning more than
the threshold in s 6(3) of the Basic Conditions
of Employment Act
[3]
may also agree in a contract of employment to the holding of an
enquiry in terms of the amended s188A; but that is not yet the
case
at present.
[9]
It is so that, in this case, the applicant
agreed in his contract of employment that he “will be subject
to the disciplinary
and grievance procedure and code of the CPUT as
determined from time to time.” And in terms of that code, under
the heading
“guidelines for disciplinary hearings” it is
envisaged that “all disciplinary hearings shall take the form
of
pre-dismissal arbitration”. That guideline also provides
that, after hearing all the facts, “the chairperson shall
convey his/her decision and the reasons therefor to the parties
concerned.” It notes that “once the pre-arbitration
dismissal process is completed, the decision is final and binding on
both parties”. And perhaps most importantly for the
applicant,
it notes that the decision is not subject to appeal or CCMA
proceedings, “but may be taken on review”. But
that
agreement does not meet the prerequisites contained in s 188A as it
stands.
[10]
The university says the code was amended by
agreement with the relevant trade unions. But the minutes of the
meeting on 7 September
2012 where the so-called amendment was
adopted, are far from clear. It reads:
“
The
chairperson informed the meeting that the pre-dismissal arbitration
is currently in the ER policy and has been applied since
the policy
was implemented in 2007. The outcome of the process is binding on
both parties and recourse for the parties is to the
Labour Court.
Further informed the meeting that the institution is currently
dealing with a number of cases and that unhappiness
was raised around
the pre-dismissal arbitration process. Informed the meeting that the
pre-dismissal arbitration process will still
be in place at that the
employee can now refer the matter to the CCMA instead of the Labour
Court. There will further be no internal
appeal. The chairperson
informed the meeting that this will be an interim amendment and that
a broader framework will be discussed
at a later stage. The union is
indicated that they were happy with the amendment.”
[11]
It is far from clear that it was intended
to do away with the pre-dismissal arbitration process altogether. The
minute could be
read to reflect a position that the employee could
have an election to refer a dispute to the CCMA instead of this court
following
a pre-dismissal arbitration. But that would not make
logical sense. Following an arbitration, an employee’s only
recourse
would be a review application to this court; a referral to
the CCMA would only be permissible after a dismissal as contemplated
in section 191 of the LRA.
[12]
The applicant has a number of further
difficulties. Firstly, he was notified of a “disciplinary
hearing” and not a pre-dismissal
arbitration. Secondly, when
the second respondent made her “enquiry findings” she
only recommended the sanction of
dismissal. She did not see her
function as being that of an arbitrator whose finding is final and
binding upon the parties. She
also reiterates that under oath. And
the applicant’s attorneys were alive to the fact that the
decision to dismiss was made
by the Vice Chancellor, as is apparent
from their email to the University on 24 April 2014. That email was a
written response to
an email from a Mr Mikhail Mabuza referring to
the outcome of the applicant’s “disciplinary enquiry”.
[13]
Insofar
as the applicant relied on the decision of the High Court in
Hendricks
v CPUT & ors
[4]
,
that case is distinguishable from the present case. In that case, the
applicant relied on breach of contract. In this case, the
applicant
seeks to have a pre-dismissal arbitration award reviewed and set
aside.
Conclusion
[14]
Having regard to the context outlined above
and to the provisions of section 188A as they currently stand, I
cannot agree with the
applicant that the procedure leading to his
dismissal was a pre-dismissal arbitration as contemplated in section
188A of the LRA.
It was, instead, a disciplinary enquiry chaired by
an independent external chairperson. The respondents should perhaps
have made
it clearer to the applicant that that was the nature of the
process, despite the earlier guidelines contained in the disciplinary
code envisaging a form of pre-dismissal arbitration. The fact
remains, though, that in law the process adopted did not conform
to
the provisions of section 188A.
[15]
With regard to costs, I take into account
that the applicant may justifiably have been confused by the nature
of the proceedings.
I accept that he was
bona
fide
in bringing an application for
review to this court rather than referring an unfair dismissal
dispute to the CCMA. For that reason,
I do not consider a cost award
to be appropriate in law and fairness.
Order
The
application for review is dismissed for lack of jurisdiction.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT:
Shaun Hangone of
Von
Lieres, Cooper, Barlow and Hangone.
RESPONDENTS:
Jose Jorge of Norton Rose Fulbright.
[1]
Act 66 of 1995.
[2]
Act 6 of 2014.
[3]
Act 75 of 1997.
[4]
Unreported, Case no 12761/2006, 19 Feb 2009.