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[2015] ZALCJHB 183
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South African Democratic Teachers Union and Others v Motheo FET College and Others (J352/15) [2015] ZALCJHB 183 (17 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J352/15
SOUTH
AFRICAN DEMOCRATIC TEACHERS UNION
First applicant
NKADIMENG
& 4 OTHERS
Second to Further Applicants
and
MOTHEO
FET
COLLEGE
First Respondent
THE
DIRECTOR GENERAL: DEPARTMENT OF
HIGHER
EDUCATION AND
TRAINING
Second Respondent
Heard:
11
June
2015
Delivered:
17 June 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
About R50m a year was spent keeping about 400 suspended civil
servants at home because of delays in finalising their cases
[1]
.
These figures might probably be the tip of the iceberg, and the
application before the court typifies this endemic problem, which
has
the invariable consequences of rewarding suspended public servants
who are content to stay at home at the expense of the hapless
South
African tax payer. Significantly however, with these prolonged
suspensions of employees with full pay and benefits, the basic
values
and principles governing public administration as espoused in section
195 of the Constitution
[2]
become secondary.
[2]
The applicants approached the court on an urgent basis to seek an
order declaring the pending disciplinary proceedings against
them to
be null and void as a result of non-compliance with the collective
agreement entered into between SADTU and the respondent.
The
respondents oppose the application on two grounds, viz; that two of
the individual applicants, Nkadimeng and Cuba are not “lecturers”
as defined by Further Education and Training Act
[3]
and thus not covered by the agreement, and secondly, that the
applicants have not established a cause of action for the relief
that
they seek.
[3]
The respondent is a state funded Further and Education and Training
Institution situated at Bloemfontein in the Free State.
The
individual applicants are Messrs Nkadimeng, Monnaruri, Modise, Ms.
Cuba and Ms Ncanywa. Modise, Monnaruri and Ncanywa are employed
as
lecturers, and there is a dispute as to the positions of both Cuba
and Nkadimeng. It is however common cause that they are members
of
SADTU, which is signatory to the Education Labour Relations Council
Agreement 1 of 2013. (The Collective Agreement)
Background:
[4]
The matter has a protracted history dating back to October 2013 when
Nkadimeng was first suspended. Modise, Cuba and Monnaruri
were
subsequently suspended on 14 April 2014. The individual applicants
were suspended on account of a variety of allegations of
misconduct,
following forensic investigations by Price Water Cooper House into
the administration of bursary scheme. The allegation
is essentially
that lecturers who were involved in the scheme were suspected of
corruption in the loss of about R23 million. Flowing
from these
investigations, initially 11 employees were placed on suspension.
Some had since had their suspensions uplifted, whilst
others had been
cleared at disciplinary proceedings. Another employee has since
resigned, whilst two have since been dismissed.
[5]
An unfair suspension dispute was referred to the Education Labour
Relations Council in July 2014 in respect of 11 employees.
An award
was issued in this regard on 23 October 2014, in terms of which the
arbitrator had declared the suspension of the five
of employees
including Modise, Monnaruri and Ncanywa to be unfair and awarded them
two months compensation. A review application
has since been filed on
4 November 2014 under case number JR2340/14, and is still pending
before this court.
[6]
On 23 February 2015, the applicants had referred a dispute to the
ELRC in respect of the respondent’s failure to comply
with the
provisions of the Collective Agreement 1 of 2013, seeking relief in
the form of a declaratory that all disciplinary enquiries
convened be
declared null and void. On 26 February 2015, the applicant had
approached this court on an urgent basis to seek an
order that the
disciplinary proceedings against the second to further applicants was
null and void for non-compliance with the
provisions of the
Collective Agreement, or in the alternative, to interdict the
disciplinary hearings pending the resolution of
the dispute
referred to the ELRC.
[7]
An order was issued by the Honourable LaGrange J on 10 March 2015, in
terms of which the matter was postponed
sine die
, and the
respondents undertook not to proceed with the enquiries in respect of
Modise, Monnaruri , Cuba, Nkadimeng, and Mcanyawa
pending the
determination of the dispute before the ELRC.
[8]
On 25 May 2015, the ELRC Arbitrator found that the Council lacked
jurisdiction to issue declaratory orders rendering disciplinary
hearings to be invalid and of no force and effect. In the award, the
Arbitrator further held that clause 23 of Annexure B of the
Collective Agreement provided for a process within which the
collective agreement could be enforced, and that the applicants had
not complied with that process.
[9]
The question whether the application was urgent or semi-urgent was
not seriously pursued by the respondents, and as it was correctly
pointed out on behalf of the applicants, no point will be served if
this matter was to be heard in the normal course in the light
of its
protracted history and the order of this court issued on 10 March
2015.
The
Collective Agreement:
[10]
The Collective Agreement 1 of 2013 provides for a generic contract of
employment for post level 1 (one) lecturers that are
appointed by the
FET Colleges, and applies to all Public FETs represented by FETCEO.
It further applies to all lecturers as defined
in terms of
Further
Education and Training Colleges Act 16 of 2006
and is extended to
non-union members. The agreement further does not apply to management
staff appointed in terms of the provisions
of the FETC Act
[4]
.
[11]
Annexures B – D of the Collective Agreement comprise of the
Disciplinary Code and procedure applicable to lecturers.
As per
Clause 2 (Principles) of Annexure B, it is provided that discipline
must be applied in prompt, fair, consistent and just
manner
[5]
;
and further that disciplinary proceedings must be concluded in the
shortest possible time frame
[6]
.
Where employees are suspended, it is provided that in the case of
serious misconduct, the employer may suspend the employee on
full pay
for a maximum period of three months
[7]
,
and in the event that an employee is suspended, the employer must do
everything possible to conclude a disciplinary hearing within
one
month of the suspension
[8]
.
[12]
Where disciplinary proceedings are postponed, any further
postponement must not exceed 90 days from the date of suspension
[9]
.
Where proceedings are no concluded within 90 days, the employer must
enquire from the Presiding Officer what the reasons for the
delay are
and give directions to the speedy conclusion of the proceedings
[10]
.
The
individual applicants and disciplinary processes thus far:
Monnaruri:
[13]
Monnaruri is employed as a Labour Relations lecturer. He was
suspended on 14 April 2014 on the basis of allegations pertaining
to
gross insubordination. He was notified to attend proceedings
scheduled for 6 and 7 November 2014. These were however postponed
to
28 January 2015. At those proceedings, he had raised a
point in
limine
, to declare the proceedings as null and void on the basis
that the respondent had failed to charge him within one month of his
suspension as required by the collective agreement. The ruling in
that regard is alleged to be still outstanding.
Nkadimeng:
[14]
Nkadimeng is employed as a Student Support Coordinator. He was
suspended on 16 October 2013. On 11 December 2013 he was issued
with
a notice to attend an enquiry scheduled for 13 January 2014. The
enquiry scheduled for that date was nevertheless postponed
sine
die
. Nine charges were originally preferred against him. At the
enquiry scheduled for 2 June 2013, the charges were trimmed
down
to five. That enquiry did not proceed and was re-scheduled for
17 February 2015. He now faces one charge. It has been 16 months
since Nkadimeng was suspended with pay, and on 17 May 2015 when the
disciplinary was to commence, he also had raised a point
in limine
that the disciplinary enquiry be declared null and void for want of
compliance with the provisions of the collective agreement.
That
point
in limine
was dismissed by the Presiding officer.
Ncanywa:
[15]
Ncanywa is employed as a Business Management lecturer. On 11 December
2013 she received a notice to attend an enquiry scheduled
for 16
January 2014. That hearing was postponed. A second notice was issued
informing her to attend an enquiry on 4 March 2014
which was also
postponed. She was then suspended on 14 April 2014. The enquiry was
scheduled for 10 March 2015, but could not proceed
on account of
referrals to the ELRC and to this court.
Modise:
[16]
Modise is employed as a lecturer. He received notice to attend an
enquiry on 12 March 2014. That hearing was postponed, and
he was
subsequently suspended on 14 April 2014. In November 2014, he was
notified to attend an enquiry scheduled for 24 to 26 February
2015.
The enquiry has nevertheless not proceeded also in view of the
on going litigation.
Cuba:
[17]
Cuba is employed in the respondent’s central office and was
suspended on 23 April 201. In October 2014 she received notification
to attend an enquiry on 27 and 28 November 2014. Only on 27 November
2014 was she issued with a ‘charge sheet’ and
the hearing
was also postponed to 17 March 2015. The hearing could however not
proceed on account of the referral to the ELRC
The
status of Nkadimeng and Cuba:
[18]
There is a dispute as to whether the provisions of the Collective
Agreement are applicable to these two individuals. It is
common cause
that Cuba is currently, or at least at the time of the suspension,
she was employed in the respondent’s central
office as Manager:
Student Support Services. Nkadimeng is employed as Coordinator:
Student Support Services in the respondent’s
central office.
[19]
It was submitted on their behalf that in respect of Nkadimeng, he was
initially employed as a lecturer on a lecturer’s
salary scale.
Despite being moved to the central office, his statutory appointment
was not altered and he continues to earn his
salary as a lecturer as
evident from his pay slips. In respect of Cuba, it was submitted that
she was appointed as an office based
educator or Senior Education
specialist in terms of the Employment of educators Act. To that end,
it was contended that all such
employees fall under the jurisdiction
of the ELRC, and both these individuals are covered by the Collective
Agreement.
[20]
The respondent’s contention on the other hand is that Nkadimeng
ceased to be a lecturer from 4 January 2010 when he was
transferred
to the Administration in the College Council, and the agreement
cannot equally apply to Cuba as she is not a lecturer.
[21]
The same meaning is given to “Lecturer” in Annexure E of
the Collective Agreement and the
Further Education and Training
Colleges Act as
;
“
any
person who
teaches
,
educates
,
or
trains
other persons or who
provides
professional educational services
at any college, and
who
is appointed in a post
on any lecturer establishment determined in terms of the
Further
Education and Training Colleges Act, No 16 of 2006
”
[22]
It is trite that this Court lacks jurisdiction to interpret a
collective agreement
[11]
in
the light of the provisions of
section 24(8)
of the LRA
[12]
,
and I did not understand the parties’ case to be that they
wished the Court to interpret the agreement. Be that as it may,
it is
permissible for the court to analyse the provisions of an agreement
if the sole purpose is to determine the main dispute
before the
Court. In this context, an analysis or interpretation of the
agreement would not be pivotal and fundamental to the resolution
of
the main dispute. It would be merely incidental to the resolution of
the main dispute between the parties. The main dispute
in this
case is whether Cuba and Nkadimeng are “Lecturers” for
the purposes of the application of the collective agreement
to the
extent that it is argued that the impending disciplinary enquiries
should be declared null and void on account on alleged
non-compliance
with that agreement. Even if I may be incorrect in my approach by
virtue of the same definition of “Lecturer”
being found
in the applicable legislation, the normal principles of
interpretation of statutes would apply.
[23]
A collective agreement binds; “
each
party to the collective agreement and the members of every other
party to the collective agreement in so far as the provisions
are
applicable to them”
[13]
Clause 2.3 of the Agreement provides that “
Management
staff who are appointed in terms of the provisions as contained in
the FETC Act 16 of 2006 are excluded from this agreement”.
The respondents’ contention nevertheless is that these
employees who are specifically excluded are not the only employees
excluded, and that by virtue of clause 2.2 which specifically refers
to lecturers as defined, it cannot be said that the agreement
applies
more broadly than to those who are not lecturers as defined. In this
regard, it was contended that contrary to clause 2.2,
the applicants
seek the agreement to apply more widely to include Cuba.
[24]
I am in agreement with the submissions made on behalf of the
respondents that in order for one to be considered a lecturer
as
defined, one must as a matter of fact, perform duties of a lecturer
as defined, i.e., being to
teach, educate, train, provide
professional educational services,
and
appointed
as such.
This can be gleaned from the purpose of the agreement itself which,
which is to provide for generic contract of employment
for
lecturers
.
[25]
Secondly, Annexure F to the agreement outlines the workload of
lecturers. Cuba and Nkadimeng at the time of the suspensions
were not
performing these duties, and were more involved in administrative
work which does not appear linked to the functions of
a lecturer. I
did not read from the founding affidavit that either Cuba or
Nkadimeng that they adhered to the core functions as
outlined in
Annexure F. It therefore also implies that this dispute, other than
requiring a factual enquiry, ought to be dispensed
of in accordance
with the
Plascon-
Evans Paint
[14]
principles as correctly pointed out on behalf of the respondents.
[26]
In the answering affidavit
[15]
,
it was disputed that Cuba and Nkadimeng were lecturers. Only in the
replying affidavit did the applicants further elaborate on
Cuba and
Nkadimeng’s position by attaching their letters of appointment
and salary advice, and as correctly pointed out,
a case cannot be
made out in the replying affidavit. In the light of these disputed
facts, which clearly the applicants ought to
have foreseen, there is
no basis to reject the respondent’s contentions that indeed
Cuba and Nkadimeng are currently not
performing the functions of
lecturers. The fact that Nkadimeng continued to draw a salary of a
lecturer despite ceasing to perform
any related functions is neither
here nor there, as that is not determinative of his status as
contemplated in the definition of
“Lecturer”. The scheme
of the collective agreement together with its annexures is meant to
apply to lecturers and not
to any other support staff as contemplated
in clause 2.3. To this end, it is concluded that the collective
agreement is not applicable
to Cuba and Nkadimeng, and accordingly,
they cannot be granted any relief.
[27]
Thirdly, even if my conclusions as above may be incorrect, the
spanner in the wheels for both Cuba and Nkadimeng is an award
[16]
issued by Mr Jerome Mthembu, a panellist of the ELRC in regard to the
unfair labour practice dispute referred in July 2014. The
panellist
had awarded compensation for five of the applicants before him
and ruled that the ELRC had no jurisdiction to determine
Cuba,
Nkadimeng and others’ dispute, having further established that
by virtue of the current positions they held,
the Employment of
Educators Act did not apply to them as they were not lecturers.
It is therefore cynical for Cuba and Nkadimeng
to have persisted with
the contention that the agreement applied to them, in circumstances
where the issue can be considered to
be
res
judicata
,
and where a review application had not been launched in that regard.
Cuba and Nkadimeng cannot seek a second bite at the cherry
by
disingenuous means.
Should
the disciplinary enquiries be declared null and void?
[28]
It needs to be said at the outset that I am not impressed with the
manner with which the first respondent had been dilatory
in
dispensing of the disciplinary enquiries since October 2013. Its
approach to these disciplinary enquiries since October 2013
and after
the investigations can at best be described as shocking and
laissez-faire. On the version of its Chairman of the Council,
Xolile
Xuma, the charges against the individual applicants are of a serious
nature, including falsifying student’s test marks
(Monnaruri),
and misconduct in relation to bursary administration (Nkadimeng and
Cuba).
[29]
The applicants on the other hand have painted a picture of
disciplinary processes characterized by ineptitude, unnecessary
postponements on account of lack of preparation in respect of charge
sheets, withdrawal and reinstatement of the charges at a whim,
and in
my view sheer incompetence and lack of seriousness on the part of the
respondent. No effort was made by Xuma in his answering
affidavit to
provide a tangible or reasonable excuse for the delays other than to
agree that some of the enquiries were postponed
on account of lack of
water in the venue where they were supposed to be held. Surely an
alternative venue could have been found?
[30]
In some instances, the mandates of chairpersons were terminated
midstream the enquiries. The fact that some of the enquiries
were
postponed by agreement is not a justification to postpone them
sine
die
, and some form of urgency needed to be displayed by the first
respondent. It was nevertheless content to postpone these
disciplinary
proceedings without dates being set, and there was
clearly a lack of willingness to show any urgency in dispensing of
these enquiries.
It is my view that to have employees suspended with
full pay and benefits for periods of between 12 and 16 months is
extremely
disconcerting, inexcusable, morally reprehensible and
so inherently unfair to learners, communities the first respondent is
meant to serve and the ordinary tax payer.
[31]
Notwithstanding the indignation at this wanton waste, the issue
remains whether the impending disciplinary enquiries should
be set
aside as a result of the first respondent’s dilatoriness and
clear non-compliance with the Collective Agreement.
[32]
The arguments advanced on behalf of the applicants were that the fact
that they had agreed to the postponements does not imply
that they
had waived their rights to raise the issue
[17]
.
The respondent’s contention on the other hand was that
Monnaruri, Modise and Ncwanya were suspended on full pay for lengthy
periods and were now complaining of breach of contract. It was
submitted that they were content to receive full pay plus benefits
for long periods whilst not working and now sought to avoid enquiries
which were legitimate means of determining whether they were
involved
in misconduct. In this regard, it was submitted that in contract law,
there was no concept which provides for declarations
of nullity of
disciplinary enquiries because those enquiries are in contravention
of the terms of the contract. In this case, the
applicants as
innocent parties made an election to abide by any breach and
accordingly waived their rights to rely on that breach.
[33]
As correctly pointed out on behalf of the applicants, the
requirements of a waiver were eloquently set out by the
Constitutional
Court (per Kroon AJ) in
Lufuno Mphaphuli
, as
follows;
“…
.Waiver
is first and foremost a matter of intention; the test to determine
intention to waive is objective, the alleged intention
being judged
by its outward manifestations adjudicated from the perspective of the
other party, as a reasonable person. Our courts
take cognisance of
the fact that persons do not as a rule lightly abandon their rights.
Waiver is not presumed; it must be alleged
and proved; not only must
the acts allegedly constituting the wavier be shown to have occurred,
but it must also appear clearly
and unequivocally from those facts or
otherwise that there was an intention to waive. The onus is strictly
on the party asserting
waiver; it must be shown that the other party
with full knowledge of the right decided to abandon it, whether
expressly or by conduct
plainly inconsistent with the intention to
enforce it. Waiver is a question of fact and is difficult to
establish”
[18]
(Citations omitted)
[34]
Ncanywa was suspended on 14 April 2014 after her disciplinary enquiry
was postponed on two occasions. Since then her enquiry
was set down
for 12 March 2015. A hearing previously set down for 13 to 14 January
2015 was postponed on account of her having
submitted a sick note.
Other than this postponement, were it not for these and other
proceedings, she would effectively have been
on suspension for 11
months.
[35]
Modise was scheduled to attend an enquiry on 12 March 2014 which was
postponed. Following his suspension on 14 April 2014,
a hearing
scheduled for 24 to 26 February 2015 was also postponed. The
respondents contend that the scheduling of the last postponed
proceedings were by agreement between the parties.
[36]
Monnaruri was suspended on 14 April 2014. The proceedings scheduled
for 6 and 7 November 2014 were postponed to 28 January
2015. At those
proceedings, he had raised a
point in limine
as already
indicated.
[37]
The first time that the applicants acted after their suspensions was
in July 2014 when they referred an unfair suspension dispute
to the
Education Labour Relations Council. To add salt to the tax payer’s
injury, they were compensated for staying at home,
it having been
found that their suspensions were unfair. Thereafter, the applicants
took no action to act in terms of the collective
agreement until
after either the points
in limine
they had raised at the
disciplinary enquiries were dismissed or not considered.
[38]
Clause 7 of the Collective Agreement provides that any dispute about
the interpretation or application of that agreement shall
be resolved
in terms of the dispute resolution procedure of the Council. The
relevant provisions of the Council are to be found
in Annexure B of
its Constitution which
inter
alia
provides that a party to a dispute about the interpretation or
application of a Collective Agreement may refer such dispute to
conciliation and arbitration in terms of these procedures
[19]
.
Furthermore
[20]
, the General
Secretary may promote, monitor and enforce compliance with any
Collective Agreement of the Council, within the scope
of the Council
and in terms of this section 33 and section 33A of the LRA. For the
purposes of enforcement, a Collective Agreement
of the Council is
deemed to include; any basic condition of employment which
constitutes a term of a contract of employment of
any employee
covered by the Collective Agreement in terms of section 49(1) of the
BCEA. The General Secretary may, in terms of
this clause issue an
order requiring any person, bound by a Collective Agreement, to
comply within a specified period, or may refer
any unresolved dispute
concerning compliance with any provision of a Collective Agreement to
arbitration by a panellist appointed
by the Council or the CCMA.
[39]
Notwithstanding the fact that the applicants were prepared to rely on
the provisions of the Collective Agreement in declaring
the
disciplinary null and void, it is my view that they had at no stage
invoked the above provisions to enforce their rights to
a speedy
finalisation of those enquiries as contemplated in the agreement.
This point was correctly made by the Arbitrator when
declining
jurisdiction on 25 May 2015. On the contrary, they were prepared to
by-pass the provisions of the agreement when it suited
them by
utilising the provisions of section 186 (2) (b) of the LRA as it was
more beneficial to them. Where however there was any
attempt (
albeit
belated) by the respondent in instituting proceedings against
them, they were not hesitant in seeking to set aside those
proceedings
as and when it suited them.
[40]
As correctly pointed out on behalf of the respondents, the applicants
approbated and reprobated the provisions of the collective
agreement
whenever it suited their interests. They were content to have the
enquiries postponed, and at very conceivable opportunity,
including
at the scheduled enquiries, were bent on frustrating any attempt at
proceeding with those enquiries. It is therefore
not correct as
contended on their behalf, that they did not have remedies available
to them where there was an unreasonable delay
on the part of the
employer to commence disciplinary enquiries.
[41]
In my view, the applicants cannot in proverbial terms, have their
cake and eat it. Furthermore, I did not understand it to
be their
case that they had at any stage languished under the impression that
they would not be disciplined. It has always been
the intention of
the first respondent to subject them to discipline,
albeit
any
efforts in that regard have been characterized by ineptness and
dilatoriness. To the extent that the applicants were content
with
being on suspension with pay, and further to the extent that no
attempt was made to either approach the ELRC to enforce the
agreement
as contemplated in Annexure B of the Council’s Constitution or
to claim specific performance in the light of the
breach, it should
be concluded that on the facts and their own conduct, they had waived
their rights to rely on that breach.
[42]
Central to the debate in this issue are two judgments issued by
Steenkamp J in
SAMWU
obo Jacobs v City of Cape Town & others
[21]
in terms of which it was held that if the Collective Agreement has
been breached in a material respect, the convening of a disciplinary
enquiry contrary to the provisions of the Collective Agreement will
be null and void. Rabkin-Naicker J in
Tsengwa
v Knysna Municipality and Others
[22]
concluded that
Jacobs
was wrongly decided and declined to follow it. Significant in both
cases is that the issue before both courts was a review application
pertaining to whether commissioners have the power to declare
disciplinary proceedings null and void with regard to Clause 6 of
the
(SALGBC) Disciplinary Procedure and Code Collective Agreement.
[43]
The above two cases are significantly distinguishable from the one in
casu
for the simple reason that the applicants have directly
approached the court for a declaratory, and the ELRC finding of 25
May
2015 that it lacked jurisdiction to issue a declaratory order
that the applicants seek is not the subject matter of this
application.
[44]
The question whether disciplinary proceedings can be declared null
and void on account of non-compliance with a Collective
Agreement
involves a variety of factors. The first, relating to waiver has
already been dispensed with and ordinarily, in the light
of a
conclusion that the applicants had waived their rights, that would
have been the end of the matter.
[45]
A second consideration notwithstanding the above, is that it is trite
that the LRA encourages voluntarism and collective agreement,
which
should be given primacy
[23]
.
It is accepted that a collective agreement is not to be treated like
any other contract
[24]
, and as
stated in
Western
Cape Department of Health v MEC Van Wyk & Others
[25]
,
the primary objects of the LRA are better served by an approach that
is practical to the interpretation and application of such
agreements, namely, to promote the effective, fair and speedy
resolution of labour disputes. Be that as it may be, once an
applicant
seeks to rely on a term of a contract rather than the
provisions of the LRA in seeking to nullify disciplinary proceedings,
the
principles of contract law will invariably become a factor, which
the court will be remiss to ignore.
[46]
Further considerations in determining whether non-compliance with the
provisions of a collective agreement can result in a
nullity is that
of equity and public policy. In this regard, the question that should
be posed is whether it is fair for employees
facing
prima facie
serious allegations to escape the consequences of a disciplinary
enquiry on a technicality. It was contended on behalf of the
applicants that they were not taking a technical stance by
complaining about the employer’s dilatoriness. I nevertheless
do not agree with this contention.
[47]
As already pointed out, the applicants were content to be suspended
with full pay, and had acquiesced in the delay if not having
contributed to it with contrived preliminary points when it suited
their cause. In my view, it would be iniquitous for the applicants
to
benefit from the delay in instituting disciplinary proceedings, in
circumstances
inter alia
, where equity and public
considerations call for them to answer to the allegations against
them.
[48]
Another consideration which should play a role in the enquiry is that
of prejudice to the parties. In their founding affidavit
under the
rubric of urgency, the applicants contended that they have and are
still suffering prejudice as a result of continued
injustice by the
first respondent. A bland statement such as this does not take up the
applicants’ case any further, and
it is not apparent from the
papers in what material ways they had been prejudiced by the delays.
On the contrary, the delays appeared
to have suited them.
[49]
On behalf of the respondents, reference was made to
Highveld
District Council v CCMA and Other
[26]
for the proposition that the failure to follow an agreed disciplinary
procedure code and procedure contained in a collective agreement
does
not necessarily give rise to unfairness. In this regard, the LAC held
that;
“
Where
the parties to a collective agreement or an employment contract agree
to a procedure to be followed in disciplinary proceedings,
the fact
of their agreement will go a long way towards proving that the
procedure is fair as contemplated in Section 188 (1)(b)
of the Act.
The mere fact that a procedure is an agreed one does not however make
it fair. By the same token, the fact that an
agreed procedure is not
followed does not in itself mean that the procedure actually followed
was unfair…..When deciding
whether a particular procedure was
fair, the tribunal judging the fairness must scrutinize the procedure
actually followed. It
must decide whether in all the circumstances
the procedure was fair.”
[27]
[50]
In line with the above principle, what is required therefore is for
each case to be dealt with on its merits in line with the
considerations already alluded to. It would be untenable to in each
and every case invalidate disciplinary proceedings for mere
non-compliance with provisions of a collective agreement. These
provisions may be peremptory, but not necessarily sacrosanct to
be
slavishly adhered to at the expense of the employer’s right to
institute discipline. As already indicated, any prejudice,
if proven,
suffered as a consequence of any delays due to non-compliance has to
be examined and be compensated where it is so deemed.
[51]
To summarise then, having had regard to the circumstances of this
case, I am not convinced from the provisions of the Collective
Agreement that the intention of parties was to take away the right to
of the employer to discipline in the event of non-compliance
with its
provisions. At most, the Collective Agreement in line with the quest
of a speedy resolution of disputes set time frames
within which
disciplinary processes should be dispensed with. At most for the
applicants, where they were aggrieved by the delays,
they had brought
a claim under section 186 (2) (b) of the LRA and were duly
compensated, over and above the fact that they continued
to be on
suspension with full pay and benefits. In my view, these provisions,
together with those of the ELRC Dispute Resolutions
Procedures, and
further in the absence of any other specific, provide a mechanism of
enforcement in the event of non-compliance.
[52]
A conclusion has also been made that through their conduct, the
applicants waived their rights to remedy the alleged breach
of the
provisions of the Collective Agreement, and factors such as equity
and public considerations play a role in such matters.
In these
circumstances the non-compliance with the provisions of the
collective agreement in this case cannot in itself lead to
invalidity
or nullity of the disciplinary proceedings.
[53]
Furthermore, notwithstanding dilatoriness on the part of the first
respondent in completing these disciplinary enquiries, I
did not
understand the applicants’ case to seriously challenge the
first respondent’s contention that these enquiries
are ready to
be finalised. In such circumstances the court should be disinclined
to intervene. The applicants must have their say
in those
disciplinary enquiries if they are innocent of any form of
misconduct.
[54]
I have also had regard to considerations of law and fairness insofar
as the issue of costs is concerned. In the light of the
appalling
conduct of both parties as pointed out and addressed in this
judgment, and further in the light of the protracted nature
of this
dispute, it is deemed appropriate that each party must be burdened
with its own costs.
Order:
i.
The
application to have the disciplinary hearing against the second to
further applicants declared null and void for non-compliance
with the
Collective Agreement is dismissed.
ii.
Each
party is to pay its own costs
______________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicants:
JG Rautenbach SC
Instructed
by:
Cheadle Thompson & Haysom
For
the:
N
Cassim SC with Adv. A Mosam
Instructed
by:
Mabalane Seobe INC
[1]
Sunday Independent November 9 2014 (Based on
Public Service Commission report released in October 2014)
[2]
Constitution of the Republic of South Africa,
1996
[3]
Act 16 of 2006 which provides that:
(1) Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
(a)
A high standard of professional ethics must be promoted and
maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
(c)
Public administration must be development-oriented.
(d)
Services must be provided impartially, fairly, equitably and without
bias.
(e) People’s
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(f) Public
administration must be accountable.
(g) Transparency
must be fostered by providing the public with timely, accessible and
accurate information.
(h) Good
human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(i) Public
administration must be broadly representative of the South African
people, with employment and personnel management
practices based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.
(2)
The above principles apply to —
(a)
administration in every sphere of government;
(b)
organs of state; and
(c)
public enterprises.
[4]
Clause 2 – Scope of this Agreement
[5]
Clause 1.2
[6]
Clause 1.7
[7]
Clause 6.1
[8]
Clause 6.3
[9]
Clause 6.4
[10]
Clause 6.5
[11]
South African
Post office Ltd v CWU obo Permanent Part-Time Employees
(2014) 35 ILJ 455 (LAC)
[12]
Which provide
that;
“
If
there is a dispute about the interpretation of application of a
settlement agreement contemplated in either section 142A or
158(1)(c), a party may refer the dispute to the council or the
Commission and subsections (3) to (5), with the necessary changes,
apply to that dispute.”
[13]
Section 23 (1) (b) of the LRA
[14]
Plascon Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E to 635C.)
[15]
Para 34
[16]
Under case Number ELRC 30-14/15 FS
[17]
With reference to Lufuno Mphaphuli and Associates
(Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)
[18]
At para [80]
[19]
Clause 22. Interpretation and application of
Collective Agreements
[20]
Clause 23. Enforcement of Collective Agreements
and of BCEA provisions
[21]
[2014] 10 BLLR 1011 (LC)
[22]
(C457/14) [2015] ZALCCT 33 (16 April 2015)
[23]
Minister of Safety and Security v Safety and
Security Sectoral Bargaining Council and Others (2001) 22 ILJ 2684
(LC)
[24]
Northern Cape Forests v SA Agricultural &
Allied Workers & others (1997) 18 ILJ (LAC)
[25]
CA 1/2013
[26]
(2002) 12 BLLR 1158 (LAC)
[27]
Leonard Dingler (PTY) Ltd v Ngwenya
(1999) 5 BLLR
431
(LAC),