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[2016] ZALCJHB 578
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Broadcasting, Electronic, Media & Allied Workers Union and Others v South African Broadcasting Corporation and Others (J2239/2015) [2016] ZALCJHB 578; [2016] 6 BLLR 595 (LC) (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