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[2016] ZALCCT 40
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Premier, Western Cape (Department of the Premier, Western Cape Government) v National Union of Public Service (NUPSAW) obo Pietersen and Others (C352/2015) [2016] ZALCCT 40 (13 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C352/2015
Not
Reportable
In
the matter between:
PREMIER,
WESTERN CAPE
(DEPARTMENT
OF THE PREMIER,
WESTERN
CAPE
GOVERNMENT)
Applicant
and
NATIONAL
UNION OF PUBLIC SERVICE
(NUPSAW)
obo KHANIYSA KIM
PIETERSEN
1st Respondent
JACQUES
LEF PIENAAR
N.O.
2
nd
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
3
rd
Respondent
Heard:
March 24 2016
Delivered:
October 13 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
This is an opposed application to review an arbitration award under
case number GPB513/13. The second respondent awarded the
applicant an
amount of R239 381.80, being an amount equal to six months
remuneration, having found that she had been subject
to an unfair
labour practice.
[2]
Ms Pietersen (Pietersen) began her employment with the applicant in
December 2007 as a deputy director on post level 12. She
received a
‘Precautionary Suspension’ letter dated February 12, 2013
informing her of her suspension with immediate
effect on the grounds
of being:
“
guilty
of disruptive actions within the workplace and also undermining the
authority of your employer by:
(a)
Making unfounded allegations about your superiors pertaining to
discrimination and corrupt
activities;
b)
Preventing the Directorate Employee Relations to efficiently and
effectively
performing their responsibilities; in that you undermined
their processes by supplying information and/or advice to employees
in
matters against the Department; and
c)
Inciting staff members of the Directorate: Employee Relations to
stand in solidarity
by praying for those officials for whom the
Department has decided to take disciplinary action against, after a
thorough investigation…”
[3]
The letter of suspension concluded as follows:
“
Due
to the seriousness of the alleged offences, the Department has
decided to place you on precautionary suspension with immediate
effect for the duration of the disciplinary investigation.
Notwithstanding this, you are afforded the opportunity to provide
written
reasons to Mr EM Southgate, Chief Director: Human Resource
Management……. Before close of business on Friday, 15
February
2013 as to why the Department should not proceed with your
suspension.
You
are further instructed not to contact any member of staff within the
Provincial Government, or enter the Provincial Premises
at any time.”
[4]
On 15 February 2013, Pietersen’s attorney set out a number of
reasons why her suspension should be lifted immediately.
In reply to
this letter the Director General of the Department of the Premier
(the Department) stated that the Department was considering
the
request and would revert by 26 February 2013.
[5]
On the 1 March 2013, Pietersen’s suspension was lifted and she
was put on ‘precautionary transfer’ and required
to
report to the Chief Directorate: Organisational Development pending
the finalisation of her disciplinary enquiry. On the 4 March,
she
referred a dispute to the bargaining council, ticking the box in the
referral form which reads “Suspension/other disciplinary
action
short of dismissal”.
[6]
On 14 March 2013, Pietersen lodged a grievance in which she objected
to her “temporary placement as a measure alternate
to
suspension’. The grievance form filled in by Pietersen records
what she is aggrieved about as follows:
“
I
have been placed in the Directorate Organisational Development as of
4 March 2013. Since this temporary placement as a measure
alternate
to suspension, I have not been placed in a conducive working
environment. I have no computer to work on, no telephone
to make use
of. My access card has been locked and the internet access has been
denied. Honestly I do not know why I am in this
environment except to
be frustrated.”
[7]
On 6 March 2013, the third respondent issued a certificate of non-
resolution of the dispute referred by Pietersen. The arbitration
proceedings in respect of this dispute took place on the 19 and 28
January 2015. The Arbitrator described the issue to be decided
in his
award as follows:
“
Whether
the applicant has proved on a balance of probabilities that her
suspension on 13 February 2013 and her subsequent removal
from her
post as deputy director, Employee Relations, to the Chief Directorate
Organisational Development, constitutes an unfair
labour practice
i.e. an unfair act or omission short of dismissal, as defined in
section 186(2)() of the Labour Relations Act 66
of 1995 (LRA), and if
so, the relief, if any, to be afforded to the applicant, as allowed
in terms of section 193(4) of the LRA.”
[8]
The grounds of review include that the arbitrator did not understand
the nature of the dispute that he was required to determine,
in that
the award took account of both the precautionary transfer and
the precautionary suspension. It was submitted that
he did not enjoy
jurisdiction to consider the precautionary transfer. In submission
reference was made by the applicant to the
referral form and
conciliation notice. This ground stands to be rejected. Not
only on a factual basis, in that the said documents
do deal with the
precautionary transfer, but also on a legal basis given that the
characterisation of a dispute by an employee
cannot determine the
true nature of a dispute.
[1]
Moreover a notice of non-resolution and its characterisation of a
dispute has no legal import other than being a document issued
by a
commissioner or arbitrator stating that, on a particular date, a
dispute referred to the CCMA or bargaining council remained
unresolved.
[2]
I further note
that the witness for the applicant at the arbitration, Ms Mohammed,
who was the complainant in respect of the disciplinary
charges
brought against Pietersen, stated at those proceedings that: “The
suspension was being lifted and then she was transferred
as part of
the disciplinary process, so I don’t think the suspension was
treated unfairly in anyway.”
[9]
It was further submitted that the Arbitrator erred in law when he
relied on section 186(2)(b) of the LRA in his summary of the
dispute,
when such definition applies to suspensions and not transfers. The
section in fact provides that an unfair labour practice
means: “the
unfair suspension of an employee or any other unfair disciplinary
action short of dismissal in respect of an
employee." A
Precautionary Transfer in terms of paragraph 7.2 of the applicable
Collective Agreement 1 of 2003, provides that:
“
7.2
Precautionary suspension
a.
The employer may suspend an employee on full pay or transfer the
employee if:
(i)
the employee is alleged to have committed a serious offence; and
(ii)
the employer believes that the presence of an employee at the
workplace might
jeopardise any investigation into the alleged
misconduct, or endanger the well being or safety of any person or
state property.
b.
A suspension of this kind is a precautionary measure that does not
constitute
a judgment, and must be on full pay.
c.
If an employee is suspended or transferred as a precautionary
measure, the employer
must hold a disciplinary hearing with a month
or 60 days, depending on the complexity of the matte and the length
of the investigation.
The chair of the hearing must then decide on
any further postponement.”
[10]
It is evident from the clause above that an employer such as the
applicant may elect to suspend or transfer as a pre-cautionary
measure in circumstances set out in the clause. Both of these actions
are a disciplinary measure short of dismissal and may amount
to an
unfair labour practice if the employee establishes that the
employer’s conduct was unfair.
[11]
The Award contains a summary of the salient evidence given by
Pietersen in particular the following:
“
[15]
As deputy director she was part of the management
structure, two assistant directors and four labour relations
officers
reporting to her……
[16]
On 13 February 2013 her working day started as usual. She was called
to the office of her supervisor,
Ms Mohammed who accompanied by Mr
Roy Jansen, gave her a letter, saying that the Director General has
decided to suspend her. As
Mr Jansen was said to be present to be a
witness, she also needed a witness who came to sign. By the time the
witness arrived security
was already present, she was not given the
courtesy to read the letter. Security and a lady from personnel took
her possessions.
The applicant had to leave her office and she had
never been back to her office. There was no prior notice or
indication that she
was to be suspended. She was called to Ms
Mohamed’s office at 11.00 and by 11.15 her possessions had been
taken from her
and she was out of the building.
[17]
The applicant claimed that the issue of the letter of suspension was
procedurally irregular,
inter alia because Mr Southgate, against whom
she had also made a complaint, should not have been involved in the
suspension, and
as the letter of suspension issued by the Director
General should not have been issued on a letterhead of Mr Southgate.
[18]
There was no investigation. Her lawyer asked for an investigation
report, but it was never presented.
At the disciplinary hearing Ms
Mohammed and Mr Eugene Southgate said that there was no
investigation. She was not given an opportunity
to say why she should
not be suspended, nor was she given an opportunity to make
representations about her so-called transfer.
[19]
On March 2013 when she arrived at the office to where she was
transferred, she was given no work
tools, no telephone, no access
card. This continued until she filed a grievance on 14 March 2013.
She was not given an office allocated
to middle management as before;
she was placed in an open plan space. She had no staff reporting to
her. She was reporting to a
level 9 staff member who reported to a
level 11 staff member. The respondent’s response was that the
grievance was not substantiated,
but she has seen a letter from the
public service commission stating that her grievance was
substantiated.”
[12]
The Arbitrator further recorded the cross-examination of Pietersen
inter alia as follows:
“
It
was put to the applicant that her suspension was uplifted on 1 March
2013, as stated in the respondent’s letter signed
by the
Director General, and the applicant’s response was that it was
never uplifted, claiming that it was a sham, a pretext
that it was
uplifted. She has a legal qualification and when she came back to
work after her suspension, they could have placed
her in a legal
environment, such as legal services where her skills could have been
utilised.”
[13]
The applicant takes issue with the arbitrator’s finding on
procedural fairness, in particular, that contained in paragraphs
59
and 60 of the Award as follows:
“
[59]
The “Guidelines on the Management of Suspensions 2002”
form part of the Regulatory Prescripts that are to be followed
in
cases of transfer or suspensions, on full pay. In terms of paragraph
6.4 the respondent should have scheduled the meeting with
the
applicant before a decision to transfer/suspend was made, where the
applicant should have had the right inter alia to be “offered
the opportunity to make representations why she should not be
suspended”.
[60]
The applicant was not given the opportunity to attend such meetings
as prescribed and the suspension and transfer were effected
contrary
to the applicable prescripts.”
[14]
It was submitted that the arbitrator’s finding that these
guidelines applied to the dispute amounted to an error of law,
in
that the Guidelines were not part of an applicable collective
agreement and thus not binding. I do not agree. Guidelines issued
by
the Public Service and/or contained in the Senior Management Service
Handbook are not made irrelevant simply because a collective
agreement is also applicable to a dispute. In referring to the Public
Service Commission’s Guidelines, the arbitrator did
not make an
‘error of law’. He considered these in his assessment of
whether the conduct of the employer was on the
facts of the matter
before him, unfair.
[15]
Reliance is placed by the applicant on the LAC decision in
Member
of the Executive Council for Education, North West Provincial
Government v Gradwell
[3]
and in particular the following:
“
[44]
The proposition that all suspensions should be procedurally fair to
avoid the stigma of an unfair labour practice, on the other
hand,
requires some qualification. Fairness by its nature is flexible.
Ultimately, procedural fairness depends in each case upon
the
weighing and balancing of a range of factors including the nature of
the decision, the rights, interests and expectations affected
by it,
the circumstances in which it is made, and the consequences resulting
from it. When dealing with a holding operation
suspension, as
opposed to a suspension as a disciplinary sanction, the right to a
hearing, or more accurately the standard of procedural
fairness, may
legitimately be attenuated, for three principal reasons. Firstly, as
in the present case, precautionary suspensions
tend to be on full pay
with the consequence that the prejudice flowing from the action is
significantly contained and minimized.
Secondly, the period of
suspension often will be (or at least should be) for a limited
duration. The SMS Handbook for example imposes
a 60-day limitation.
And, thirdly, the purpose of the suspension - the protection of the
integrity of the investigation into the
alleged misconduct - risks
being undermined by a requirement of an in-depth preliminary
investigation. Provided the safeguards
of no loss of remuneration and
a limited period of operation are in place, the balance of
convenience in most instances will favour
the employer. Therefore, an
opportunity to make written representations showing cause why a
precautionary suspension should not
be implemented will ordinarily be
acceptable and adequate compliance with the requirements of
procedural fairness.”
[16]
Pietersen was given the opportunity to make representations in
respect of her precautionary suspension through her attorney.
It is
submitted by the applicant that the Arbitrator failed to take into
account that this complied with the flexible approach
to procedural
fairness reflected in Gradwell. However, it appears from the award
that it was the length and nature of the precautionary
transfer that
significantly weighed with the Arbitrator in considering the fairness
of the disciplinary action taken by the applicant.
In paragraph 61 of
the Award, he states:
“
[61]
The sojurn of the applicant at Organisational Development for almost
two years, was humiliating and demeaning
to the applicant. It may be
that I certain spheres of the Public Service it is not unusual for an
employee to be transferred for
period of some years, but it still
remains a situation that should not be allowed, and be curtailed.
When Ms Mohammed was asked
about the inordinate period for which the
applicant had been transferred, she showed little, if any, empathy or
concern for the
applicant’s plight. The applicant’s
evidence about her treatment during her period at Organisational
Development stands
uncontradicted, and the respondent had every
opportunity to lead contradictory evidence after the applicant's
evidence had been
concluded and the arbitration was adjourned for a
week, but no such evidence was led. The respondent’s actions
were humiliating
to the applicant, but she came across as an
articulate professional lawyer, and a credible witness. Her evidence
about her treatment
from the time she was suspended is accepted, as
well as where in conflict with the evidence of Ms Mohammed. The
“Upliftment”
of the suspension was indeed a sham to get
rid of the applicant as an employee falling under Ms Mohammed’s
wing.”
[17]
Ms Nyman for the applicant submitted that the arbitrator’s
finding that the suspension/transfer was for an unreasonable
period
as a result of the delay in finalisation of the disciplinary
proceedings, with the unstated and unsupported conclusion that
it was
the Applicant who was responsible for such delay, is not supported by
the evidence before him.
[18]
The transcript of the proceedings reflects that Pietersen did give
evidence in chief that the disciplinary hearing began in
November
2014, and she had given her evidence in chief after the employers’
evidence, but was still to be cross examined
at the time of the
arbitration hearing. She also referred to the Guidelines on the
Management of Suspensions issued by the Public
Service Commission in
2002 in that Clause 7.1 provides that: “Where the initial
30-day period of transfer/suspension
has to be extended as a result
of the fact that a hearing was not held within the said period, the
transfer/ suspension should
be reviewed at regular intervals, e.g.
weekly or monthly.” It was her testimony that since the
13 February 2013 there
was no review of her suspension or transfer.
[19]
In any event, the arbitrator’s finding on the conduct of the
employer is not premised on the protracted nature of the
disciplinary
proceedings although he does refer to the principle of the speedy
resolution of disputes. He states in paragraphs
63 to 65 of the Award
as follows:
“
[63]
The applicant has proved on a balance of probabilities that her
suspension and subsequent removal from her post as Deputy Director,
Employee Relations, to the Chief Directorate Organisational
Development, constituted an unfair labour practice.
[64]
In any event, the treatment meted out to the applicant, despite
grievances raised by her, is inexcusable. There is no reason
why the
applicant could not have been placed in a post where her labour law
expertise could have been gainfully used, giving her
the opportunity
to further develop her skills and gain further experience.
[65]
After the applicant was placed at the new department, no effort was
taken to review the situation as required by the 2002 Guidelines,
while the disciplinary hearing was dragging on. Should it be said
that the 2002 Guidelines are not relevant, paragraph 7.2 of the
collective agreement should at least have alerted the respondent to
the fact that suspensions or transfers are not to be allowed
to
remain hanging over the head of employees, but that the processes are
to be dealt with expeditiously. The respondent’s
lack of taking
such steps had been ongoing for about two years, and is indicative of
its non-committal approach to end the process
as soon as possible.”
[20]
I do not find that the grounds of review relied on by the applicant
persuasive, as reflected in my consideration of these above.
The
applicant has referred to the test set out in
Herholdt v Nedbank
Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795
(SCA):
“
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings
to amount to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the enquiry
or arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material
that was before the arbitrator. Material errors of fact,
as well as the weight and relevance to
be attached to particular
facts, are not in and of themselves sufficient for an award to be set
aside, but are only of any consequence
if their effect is to render
the outcome unreasonable.”
[21]
The arbitrator did not misconstrue the nature of the enquiry before
him, nor on the evidence before him, can the outcome of
the Award be
considered unreasonable. Further, there is no basis established by
the applicant for this court to interfere with
the quantum of
compensation awarded. As the LAC has stated in
Kukard
v GKD Delkor (Pty) Ltd
[4]
:
“
[35]
…. the court's power to interfere with the quantum of
compensation awarded by an arbitrator under s 194(1) of the LRA
is
circumscribed and can only be interfered with on the narrow grounds
that the arbitrator exercised his or her discretion capriciously,
or
upon the wrong principle, or with bias, or without reason or that she
adopted a wrong approach. In the absence of one of these
grounds,
this court has no power to interfere with the quantum of compensation
awarded by the commissioner. An appeal court will,
furthermore, not
interfere merely because it would come to a different decision.”
[22]
In view of the above, the application stands to be dismissed. I see
no reason why costs should not follow the result. I make
the
following order:
Order
1.
The review application is dismissed with costs.
____________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant:
R. Nyman instructed by State Attorney
Respondent:
Ndumiso Voyi Inc
[1]
National Union of Metalworkers of SA on behalf of Sinuko v Powertech
Transformers (DPM) & others (2014) 35 ILJ 954 (LAC)
at para 17
[2]
Bombardier Transportation (Pty) Ltd v Mtiya NO & others (2010)
31 ILJ 2065 (LC) at para 14
[3]
(2012)
33 ILJ 2033 (LAC)
[4]
(2015) 36 ILJ 640 (LAC)