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[2016] ZALCJHB 74
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BEMAWU and Others v SABC and Others (J2239/2015) [2016] ZALCJHB 74 (2 March 2016)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE
NO
: J2239/2015
DATE
:
2016-01-14
In
the matter between
BEMAWU
& 35
OTHERS
Applicants
and
SABC
& 10
OTHERS
Respondent
Date
of
ex tempore
judgment : 14 January 2016
Date
edited and signed
:
2
March 2016
J U D G
M E N T
STEENKAMP,
J
[1] The applicant, being BEMAWU or the union, seeks to interdict a
disciplinary process against 35 of its members. The disciplinary
process stems from allegations of fraud on a massive scale
perpetrated against the SABC Medical Aid Scheme.
[2] Although 35 of the union’s members are cited as the
applicants, the SABC intends to take disciplinary action against
more
than 100 employees. Given the number of employees involved, it
has adopted a disciplinary process that differs to that
envisaged by
its Disciplinary Code i.e. that of individual hearings presided over
by a panel of three chairpersons with
viva voce
evidence and
the opportunity to cross-examine. Instead, it has adopted a process
where the individual employees are presented with
the allegations
against them in writing; they can then make written representations;
and those representations will be considered
by a chairperson from a
panel appointed by Tokiso, the independent dispute resolution
agency. That chairperson, taking into
account the allegations
and representations, will have to make a decision whether or not the
individual employee in question has
or has not committed the
misconduct complained of. If the employee is found to have
committed the misconduct, that employee
will be given the opportunity
to make further representations with regard to sanction after which
the chairperson will make a recommendation
on sanction to the SABC.
[3] The union says that this departure from the Disciplinary Code
which forms part of all employees’ contracts of employment
is
unfair and should be interdicted.
[4] The first question to be considered is that of urgency. The union
initially launched an application for an expedited hearing
as
envisaged by clause 12.14 of the Practice Manual of this Court;
however, as Mr
Van As
explained, that changed when Tokiso sent
out notices to some employees that the findings in respect of those
employees would be
made this coming Monday, on 18 January. Those
notices were sent out on 6 January and he submits that led to this
matter becoming
urgent.
[5] Mr
Maserumule,
for the SABC, however, maintained his
objection to the matter being heard on an urgent basis during the
recess. In order
to consider that objection the background and
chronological sequence of events leading to the application becomes
relevant.
[6]
The SABC and the union first met as far ago as March 2015 when the
SABC informed the union representatives of the allegations
of medical
aid fraud and of its intention to discipline the employees involved.
On 18 June 2015 it informed the union in writing
of its intention to
adopt the disciplinary process that I have outlined. On 24 June
the union requested the internal audit
report on which the
allegations were based, which the SABC refused to provide. On
17 September the SABC issued letters to
employees detailing the
allegations of misconduct against each of them an inviting them to
respond to those allegations.
On 22 September the union wrote
an e-mail to the SABC rejecting that procedure and the next day, 23
September 2015, the union’s
attorneys of record wrote to the
Corporation, also challenging the disciplinary procedure adopted by
it and threatening an urgent
application to interdict it.
[7] On 28 September the Corporation replied to the attorneys’
letter, refusing to suspend the process. However, the union
did not
at that stage carry out its threat of bringing an urgent
application. By 19 October the SABC responded in writing
to
further concerns raised by the union regarding the disciplinary
process and explicitly informed the union that no further extension
would be granted after the extension that it had granted to make
further representations.
[8] It is after that, on 8 November 2015, that the union delivered
the application for relief on an expedited but not urgent basis.
No date was set down for the hearing of that application. The
current urgent application was then brought by way of an amended
notice of motion on 11 January to be heard today, 14 January 2016.
[9] It will become apparent from this chronology of events that the
union has known from at least 28 September 2015 that the SABC
was not
prepared to change its view on the way that it decided to conduct the
disciplinary process, and at the very latest by 19
October, it knew
that no further extension would be granted.
[9]
I have some sympathy for the process adopted by the union. All too
often, applicants approach this court on an urgent basis
in matters
that are not urgent, but nevertheless do require to be heard on a
more expedited basis than is provided for in the rules
of court. That
is why the court has adopted an alternative process by way of the
Practice Manual. However, in this case, I agree
with Mr
Maserumule
that the urgency has not only been
created by Tokiso sending out the letters on 6 January 2016. The
urgency is self-created in that
the union knew months ago that the
SABC was proceeding with the process it adopted. By October
2015 that process was underway
and Tokiso may as well have informed
the employees of the decisions it had taken at any time after that
and after they had made
written representations. The fact that it
informed them of its intention to do so by 18 January did not create
any new urgency
in the matter.
[10] For those reasons I would agree with Mr
Maserumule
that
the union has not shown urgency and that the matter should be removed
from the roll.
[11] I will, nevertheless, given that the parties have addressed me
fully on the merits, express my view on those merits briefly,
albeit
obiter
.
[12] The first question is, of course, whether the union has
established a clear right. It bases its argument in that regard
on the terms of the Disciplinary Code which, as I have noted, forms
part of the employees’ contracts of employment.
It seems
to me that there are two aspects of that code that must be taken into
account. The first is the overarching principle
set out in clause
1.4, that:
“
Discipline
will be maintained through a system of verbal and formal written
warnings, hearings and inquiries that will be conducted
in such a way
as to ensure that discipline is exercised fairly in accordance with
the rules of natural justice.”
[13] Against the background of that clause it seems to me that the
process envisaged by the SABC does ensure that discipline will
be
exercised fairly in accordance with the rules of natural justice,
albeit not in the way that the SABC normally conducts its
disciplinary procedures. In these circumstances, where the
Corporation has to deal with similar allegations of misconduct
against more than 100 employees, it would be unworkable to adopt a
process where each employee must be heard individually, call
witnesses and present evidence. The rules of natural justice,
and especially the principle of
audi alteram partem,
will be
satisfied, albeit in an attenuated manner in the process that the
Corporation has decided to adopt.
[14] Mr
Van As
stressed the further provision in clause 4.5
that reads:
“
For
misconduct or offences which in the opinion of management warrant a
stronger disciplinary measure than a warning... a formal
disciplinary
hearing must be held.”
and he
stresses the word
must
.
[15] That is followed by a provision in 4.8 that says:
“
The
following procedure is
recommended
for the conducting of disciplinary hearing”,
and
I stress the word “recommended”. The process
outlined in the Disciplinary Code is only a recommendation. The
only
peremptory provision is that a “formal disciplinary hearing”
must be held.
[16]
Although the process adopted by the SABC in this case is different
from that it normally adopts, I do not think that it can
be said that
it is not a “formal disciplinary hearing”. It envisages a
hearing chaired by an independent and experienced
chairperson on the
panel of a respected dispute resolution agency. It envisages a
hearing, albeit on paper without hearing oral
evidence or argument.
In my view it satisfies the requirements set out in the Code of Good
Practice of the Labour Relations
Act and set out by my Brother Van
Niekerk J in the well-known case of
Avril
Elizabeth Home for the Mentally Handicapped v CCMA
2006 (27)
ILJ
1644 (LC) at 1652. As a reminder, in that case, Van Niekerk J
said:
“
The
balance struck by the Labour Relations Act thus recognises not only
that managers are not experienced judicial officers, but
also that
workplace efficiencies should not be unduly impeded by onerous
procedural requirements. It also recognises that
to require
onerous workplace disciplinary procedures is inconsistent with the
right to expeditious arbitration on merits. Where
a commissioner is
obliged (as commissioners are) to arbitrate dismissal disputes on the
basis of the evidence presented at the
arbitration proceedings,
procedural requirements in the form that they developed under the
criminal justice model are applied ultimately
only for the sake of
procedure, since the record of a workplace disciplinary hearing
presented to the commissioner at any subsequent
arbitration is
presented only for the purpose of establishing that the dismissal was
procedurally fair. The continued application
of the criminal
justice model of workplace procedure therefore results in a
duplication of process, with no tangible benefit to
either employer
or employees.”
[17] That is exactly the conundrum that the SABC faces in these
proceedings. To have individual hearings for each individual employee
numbering more than 100, along the lines of a criminal justice model,
will impede the very workplace efficiencies that Van Niekerk
J spoke
about. As Mr
Van As
and Mr
Maserumule
also
accepted, the Labour Appeal court held in
Booysens v Minister of
Safety and Security
2011 (32)
ILJ
112 (LAC) at paragraph
54 that the court will only intervene in incomplete disciplinary
hearings in exceptional circumstances.
The Court said that there is
no exhaustive list of such circumstances but that:
“
The
factors to be considered would in my view be where the failure to
intervene would lead to grave injustice or where justice might
be
attained by other means.”
[18] In this case, it would appear to me that, firstly, the process
adopted by the SABC will not lead to grave injustice. The union
members will still have an opportunity to be heard. Secondly,
and this foreshadows the question of an alternative remedy,
justice
may be attained by other means, that is the dispute resolution system
prescribed by the Labour Relations Act. In fact,
in the case before
me, the exceptional circumstances go the other way. Exceptional
circumstances have necessitated the Corporation
to adopt a procedure
other than the normal procedure envisaged by its Disciplinary Code.
Those circumstances are the number of
employees involved and the
operational efficiencies of the organisation. I would therefore
have formed the view on the merits
that the union has not established
a clear right as is required for final relief.
[19] As I have mentioned, I have also foreshadowed the question of an
alternative remedy. The union members in this case, as any
other
employee in any other dismissal case, have the alternative remedy of
approaching the CCMA, should the independent chairperson
appointed by
Tokiso find that they committed the misconduct complained of; should
that chairperson recommend a sanction of dismissal;
and should the
SABC implement that sanction. For that reason also, I would
have turned down the application.
[20] Insofar as costs are concerned, I take into account, firstly,
that there is an ongoing relationship between the union and
the
Corporation. Secondly, I take into account that these are incomplete
proceedings and that this is simply an initial skirmish
in a longer
battle. In law and fairness, I do not consider a costs order at
this stage to be appropriate.
Order
The
application is struck from the roll for lack of urgency with no
orders as to costs.
___________________
AJ Steenkamp
Judge of the Labour Court
APPEARANCES
APPLICANTS:
M J van As
Instructed by
Johanette Rheeder.
FIRST RESPONDENT: Puke MASERUMULE
(attorney).
APPEARANCE FOR THE PLAINTIFF: MR VAN AS
APPEARANCE
FOR THE RESPONDENT: MR MASERUMULE
CERTIFICATE OF VERACITY
I,
the undersigned, hereby certify that,
in
as far as it is audible
,
the aforegoing is a
VERBATIM
transcription from the soundtrack of proceedings, as was ordered to
be transcribed by iAfrica Transcriptions and which had
been recorded
by Digital Court Recording Services by means of digital recording
equipment.
In the matter between:
BEMAWU
& 34
OTHERS
Applicant
and
SABC
& 10
OTHERS
Respondent
Case No
J2239/15
Client Reference
N/A
# Pages
10
RECORDED
AT
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:
Labour Court
Court Nr
:
Stenographer
:
[No annotation]
TRIAL
DATES
:
2016-01-14
ORDER
TO TRANSCRIBE
:
Transcribe soundtrack
as per order
TRANSCRIBER
:
Cherylene van Jaarsveld.
SOUNDTRACK
:
Delivered on: 2016-02-15
DATE
COMPLETED
:
2016-02-16
J406-ENVELOPE
INFORMATION
:
Not supplied
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Court digital recording equipment not utilised to its full potential:
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:
……
2.
Parties intervening each other, may result in indistinct words and or
phrases.
3.
Court stenographer’s annotations incomplete.
4.
Where no clear annotations are furnished, names are transcribed
phonetically.
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