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[2017] ZALCJHB 22
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Motale v The Citizen 1978 (Pty) Ltd and Others (J2819/16) [2017] ZALCJHB 22; [2017] 5 BLLR 511 (LC) (27 January 2017)
THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Case
no: J2819/16
In
the matter between:
STEVEN
MOTALE
Applicant
and
THE
CITIZEN 1978 (PTY)
LTD
First Respondent
EUREKA
ZANDBERG
Second Respondent
PIET
GREYLING
Third Respondent
PAUL
JENKINS
Fourth Respondent
Heard:
19 January 2017
Delivered:
27 January 2017
Summary:
Review. Urgent Application
JUDGMENT
GUSH
J
[1]
The applicant in this matter is the
erstwhile editor of the first respondent.
[2]
The applicant’s employment with the
first respondent was terminated by the respondent on 28 November
2016. The second respondent
is the publisher of the first respondent
and was the applicant’s immediate superior and the person to
whom the applicant
reported and the person who terminated the
applicant’s contract on behalf of the first respondent.
[3]
The third respondent is the managing
director of the first respondent and the person who concluded that
the first respondent was
entitled to dismiss the applicant with
immediate effect. It is apparent from the papers that the second
respondent acted on the
“findings” of the third
respondent and terminated the applicant’s employment.
[4]
The relief that the applicant seeks in his
application can conveniently be divided into two separate parts. The
first part relates
to an averment by the applicant that his
suspension and dismissal is a violation of “editorial
independence” and a
violation of section 16(1)(a) of the
Constitution of the Republic of South Africa.
[5]
The relief that the applicant seeks in the
second part of his application is for an order declaring the
termination of his contract
to be a breach of his employment contract
dated “1 November 2013 read together with the first
respondent’s disciplinary
code” and accordingly for an
order declaring the termination of his employment to be null and
void. The effect of such an
order would be to reinstate the
applicants contract of employment with the first respondent.
[6]
The sequence of events which led to this
application being brought can be briefly summarized as follows:
6.1.
During the course of the applicant’s
employment with the first respondent it is clear that certain
tensions developed between
the applicant and the second respondent
the person to whom he reported.
6.2.
The
source of this tension appears to have arisen from differing
attitudes towards what to the applicant and first respondent
understood
to be editorial freedom. During the course of this debate
it appears that the first respondent adopted a policy that was by
articulated
by the second respondent in her instruction to the
applicant “
to
ensure that potentially sensitive articles, published as exclusive
stories by The Citizen, be cleared by designated lawyer prior
to
publication.”
[1]
6.3.
This tension came to a head on 2 November
2016 when the second respondent addressed a letter to the applicant
suspending him with
immediate effect. The letter specifically
records:
“
The
reason for your suspension is the breakdown in the trust relationship
between you and your employer, particularly owning (sic)
to the
publication of stories that have not been adequately cleared and for
failing to comply with direct instructions, and generally
failing to
act in a trustworthy way and to implement agreed-upon standards and
procedures in your newsroom, all of which taken
together have caused
a breakdown in the trust relationship between you and your employer,
represented by the publisher of The Citizen.
Your presence in the
workplace, given your position, is untenable until the processes
regarding a disciplinary inquiry are finalized.
[2]
6.4.
On 10 November 2016 the second respondent
again wrote to the applicant this time apparently endeavouring to set
out in some detail
the allegations of misconduct committed by the
applicant that had led to his suspension and inviting him to make
representations
in response thereto. In particular, the second
respondent, having detailed the various instances she complains of,
advised the
applicant:
“
Having
regard to the facts and circumstances recorded above, it is my
contention, as the publisher of The Citizen, that the necessary
levels of trust and confidence inherent in the relationship between
publisher and editor have irretrievably broken down in consequence
of
the following:
(i)
you have acted in complete and wilful
disregard of the instruction provided to you that the timeous
intervention of our legal advisors
is be sought in relation to
exclusive articles of politically sensitive nature where a high
profile political individuals are involved;
(ii)
your failure to ensure that the publication
and in particular, you and the editorial staff (or certain members
thereof) complied
with instructions provided, firstly, in relation to
the acquiring of legal input and advice (as referred to above) and,
secondly,
in relation to the requirement that editorial content must
remain factual, accurate and truthful
in
all respects
(including the heading
thereof) and reflect the values and ethos of our publication as
recorded above; and
(iii)
you
have, in the end result, failed to uphold the fundamental duties of
the office of editor of The Citizen.”
[3]
6.5.
In
the same letter the second respondent continues by affording the
applicant an opportunity to “
deal
with all the
allegations
and contentions
set out in this communication to you … in writing …
together with any
mitigating
factors
.”
(Emphasis
added)
[4]
6.6.
On
17 November 2016 the applicant responded to the second respondent’s
letter of 10 November 2016. In this letter the applicant
makes it
clear that he regards himself to be “
innocent
until proven guilty”
and that he wishes to exercise his right that the matter be
determined by a disciplinary inquiry before an independent
chairperson.
[5]
6.7.
The second respondent replied to the
applicant on 21 November
2016 advising
him that the “
legal and factual
conclusions set out in [his] letter of 17 November 2016 are
incorrect”
and that he in fact
was being given a right to state his case.
6.8.
The
“case” or “issue” however to which the second
respondent referred was no longer based on allegations
of misconduct
viz the disregard of the policy but her conclusion that the “
trust
relationship had broken down”
.
It can only be assumed that the second respondent had concluded that
the applicant was guilty of the misconduct and based on this
conclusion the only issue to be addressed was the breakdown of trust.
The second respondent simply invited the applicant “
to
provide a basis why you believe the trust relationship between us has
not broken down”
.
[6]
6.9.
The applicant responded on twenty-four
November 2016 by clearly indicating that he did not believe he was
guilty of misconduct or
that the relationship had broken down. The
applicant repeated his insistence on exercising his right to a formal
disciplinary inquiry
regarding his alleged misconduct:
“
In
my letter dated 17 November 2016, I specifically indicated that I
have a right to a formal disciplinary hearing, which right
is also
entrenched in the company’s disciplinary code and procedure.
Therefore, if you are of the view that I have committed
serious
misconduct (which seems clear that you are of that view) warranting
my potential dismissal, then the company does not have
an option but
to institute a formal disciplinary inquiry in compliance with its
disciplinary code and procedure. … I am
of the view that is
not necessary for me to motivate for formal disciplinary hearing, to
the contrary, please note that you are
the one who is required to
explain why you wish to deviate from the company’s disciplinary
code and procedure. … I
therefore maintain that in the event
that you are of the view that I have committed serious misconduct
warranting my potential
dismissal, I should be afforded the right to
present my case before an independent chairperson, call my own
witnesses if necessary,
and cross-examine your witnesses, which right
you must also be afforded. … In so far as allegation of a
breakdown in trust
relationship is concerned, I wish to state firmly
that I do not view that there is a breakdown in trust relationship
between us.”
[7]
6.10.
Somewhat startlingly in response to the
applicant’s letter, the second respondent repeats the
invitation to the applicant
to make written submissions, by 12h00 on
28 November 2016 on the grounds that—
“…
I
say [the trust relationship] has broken down and I provided you for
the reasons why I say the relationship has broken down irretrievably.
… The factual circumstances on which I rely on are not
reasonably capable of dispute. … this matter turns not
undisputed
facts but on subjective viewpoints which are matters for
argument. And lastly, I note that you have not provided reasons or
any
motivation as to why this matter should be referred to
disciplinary inquiry, as I requested of you, instead you have baldly
alleged
that you have certain rights and instead suggested that I
should motivate why I am entitled deal with the matter as I propose
doing.
[8]
6.11.
On
28 November 2016 at 11h48 in reply the applicant again records that
he does not believe that the relationship is broken down
and repeats
his insistence on a formal disciplinary inquiry “so I can
properly answer the charges against me”
[9]
6.12.
Unsurprisingly, given the second
respondent’s attitude that her view of the issue in question
was the only view, on the same
day, 28 November 2016, by email and by
hand served the notice of dismissal on the applicant together with a
record of the finding
by the third respondent also dated 28 November
2016.
[7].
What is abundantly clear from the above is that the second respondent
not only assumed as a matter of fact, in the absence
of an enquiry,
that her view of the applicant was guilty of misconduct was correct
and that her conclusion that this relationship
had caused an
irretrievable breakdown.
[8].
As far as urgency is concerned the applicant relies on the averment
that he will suffer irreparable harm, that he warned the
second
respondent of his intention to bring an urgent application and that
his dismissal was a breach of his contract of employment
which
incorporated the first respondent’s disciplinary code.
[9].
I am not persuaded that any of these averments justified the
application being brought as a matter of urgency. I am, however,
mindful of the fact that this application was launched at the end of
November 2016 and that the parties have had an opportunity
to file
not only answering and replying affidavits but in addition an amended
notice of motion. After the filing of the respondents’
answering affidavit both parties filed supplementary affidavits. As I
am seized of the matter and have read the papers and the
parties were
at
idem
that I should deal with the merits of the application
even if urgency had not been established I have done so.
[10].
As set out above the applicant seeks two distinct orders. The first
being an order declaring the suspension and dismissal
of the
applicant to be a violation of section 16 of the Constitution.
[11].
There is nothing in the papers to substantiate the applicant’s
averment that the first respondent’s policy requiring
the
submission of stories to the first respondent’s legal advisors
constitutes a breach of the Constitution. It is clear
from the
correspondence attached to both the applicant and the respondents’
papers that the existence of the policy is not
in dispute. What is in
dispute is whether or not the applicant is guilty of contravening
that policy.
[12].
This is not a constitutional issue and I am not persuaded that the
applicant is entitled to any consequential relief arising
from the
alleged violation of the Constitution.
[13].
What remains therefor is to consider the second part of the relief
sought by the applicant viz. the applicant’s application
for an
order declaring termination of his contract to be a “
breach
of his employment contract read with the disciplinary code”
.
[14].
It is so that the applicant, in addition to challenging the
termination of his contract, sought an order declaring his suspension
to be a breach of his contract. As far as the suspension is
concerned, I can find nothing in the papers to justify an order
setting
aside the suspension as a breach of his contract. In fact, it
would appear that the first respondent not only complied with the
contract and disciplinary code in effecting the suspension but,
although not an issue in this matter, the Labour Relations Act.
During argument Mr. Ngcukaitobi conceded that should the applicant
succeed in having the termination of his contract being held
to be a
breach of the contract the appropriate remedy would be to set aside
the dismissal and reinstate the applicant to the position
he held
immediately prior to the termination of the contract. At that time
the applicant was on suspension.
[15].
Mr. Ngcukaitobi also conceded during argument that should the
termination be set aside it should be accompanied by an order
directing the first respondent to comply with the applicant’s
contract in so far as the disciplinary procedure was concerned.
[16].
The first respondents disciplinary code is contained in a document
headed “Disciplinary Codes Procedures and Guidelines;
The
Citizen 1978 (Pty) LTD” that specifically provides that “
and
procedure forms part of the individual contract of employment of
every employee”
.
[10]
[17].
The Disciplinary Code under the heading “
GENERAL
PRINCIPLES”
allows the first respondent the “
discretion
to suspend an employee”
for the purposes of the disciplinary investigation and hearing. Under
the heading “
THE
RIGHTS OF THE EMPLOYEE”
the employee is entitled “
to
hear the case against him”
and when subject to “
formal
disciplinary action”
the rights include inter alia: the right to a clear explanation
offence an opportunity to state their case the right to
representation
the right to share testimony against him in question
the witnesses.
[11]
[18].
Mr. Bruinders who appeared for the respondents argued that the
decision to terminate the applicant’s contract of employment
had nothing to do with misconduct. He was adamant that as the second
respondent was of the view that the employment relationship
had
broken down and that the parties were incompatible the respondent was
not obliged to conduct a disciplinary hearing and was
entitled to
simply and summarily terminate the applicant’s contract.
Mr. Bruinders also suggested that it was common
cause that the
applicant was guilty of failing to comply with the policy.
[19]
Unfortunately, the respondents’ affidavits do not support this
argument. It is clear that the applicant at all times
denies being
guilty of failing to comply with the policy. It is equally abundantly
clear that it was the second respondent’s
concern about the
applicant’s conduct related to the policy that led firstly to
his suspension and then to the exchange of
correspondence culminating
in the termination of the applicant’s contract.
[20]
The third respondents’ attitude towards the applicant and the
procedure deemed appropriate is set out by the second respondent
in
her answering affidavit where she avers
inter alia
the
following:
“
20.1.
On 1 November 2016 … I indicated that from my perspective the
trust relationship … And irretrievably broken
down and that
there were two alternatives … The one wasn’t the
applicant considered a possible termination on mutually
accepted
grounds. … The second alternative was any be suspended and to
that end place appropriate
disciplinary
measures.”
[12]
(Emphasis added)
20.2.
Nowhere
in his correspondence and the applicant make any reference in the
fact that he wished to call witnesses or cross examine.
[13]
This is at best for the second respondent simply wrong. (see
paragraph 6.8 above)
20.3.
Relying
formalistically on the disciplinary code for his allegation that he
was denied a hearing is a further example of why incompatible
and why
there is a breakdown in the relationship of trust between the editor
and publisher.
[14]
This
is a rather starling conclusion given that the first respondent’s
disciplinary
code
sets out the
employees’
rights and specifically makes the code a part of the employees’
contracts of employment.
20.4.
I
am advised that the applicant is no contractual right to insist in
compliance with the disciplinary code or insist on a hearing
permitting calling witnesses of cross-examination.
[15]
It would abundantly clear that the second respondent has not read the
disciplinary code.” (See paragraph 16 above)
[21].
The third respondent, who somewhat grandiosely concluded that the
first respondent was “
entitled
to dismiss Motale with immediate effect”
,
[16]
contradicts in his report that the averment that the matter was not
about conduct or misconduct on the part of the applicant but
simply
incompatibility. In his report
[17]
he records:
21.1.
That he had considered the representations
made by the second respondent regarding the “
alleged
breakdown in the relationship trust and confidence”
.
(Emphasis added)
21.2.
“
accordingly, I consider that this
matter relates, not to what was published in the newspaper, but
rather about adherence to the
agreed procedures and upholding the
editorial principles of the Citizen.”
I find
that the relationship of trust and confidence is broken down between
the publisher and Motale. I further find that Motale
is solely
responsible for this breakdown, that the breakdown is irretrievable
and that the ongoing employment of Motale is accordingly
rendered
untenable. In this sense then, Motale is found guilty, to the extent
of a guilty finding is necessary of being responsible
for
irretrievable breakdown in trust and confidence…”
[22].
What emerges from the papers is that the second respondent and the
applicant were at loggerheads over the applicant’s
compliance
with the policy regarding the submission of specific articles to the
first respondent’s legal advisors before
publication. The
second respondent was clearly of the opinion that the applicants had
failed to comply with the policy and as such
he was guilty of
misconduct. Having so concluded, the second decided initially that
the alleged misconduct warranted the institution
of disciplinary
proceedings against the applicant. Accordingly, the second respondent
suspended the applicant.
[23].
During the course of the correspondence between the applicant and the
second respondent, possibly having taken advice, decided
that the
issue was no longer one of misconduct on the part of the applicant
but simply an issue of compatibility. The second respondent
appears
to have conveniently ignored the fact that what led to her alleging
breakdown the trust relationship was the alleged misconduct
of the
applicant.
[24].
It is also clear from the papers that the applicant did not regard
himself as having committed misconduct and sought the opportunity
to
defend himself at the disciplinary inquiry he had been offered at the
time of his suspension.
[25].
The second respondent, having made the unexplained and unjustified
leap from accusing the applicant of misconduct to simply
assuming he
was guilty thereof then decided that this constituted an
irretrievable breakdown in the relationship between the applicant
and
the first and second respondents. This not only ignored the
applicant’s contractual right to be treated in accordance
with
the disciplinary procedure with regard to the applicant’s guilt
or otherwise. The second respondent simply assumed that
as a fact the
relationship had broken down. A conclusion unsurprisingly shared by
the third respondent.
[26].
One of the difficulties in the procedure adopted by the second and
third respondents in their desperate attempt to avoid the
issue of
deciding on whether or not the applicant was guilty of the misconduct
was to decide as a fact that the trust relationship
had broken down.
They appear simply to have elected to disregard the applicant’s
alleged misconduct that was initially put
to him as being the cause
of the breakdown of the employment relationship.
[27].
What remains unexplained is what led the respondents to abandon the
original proposal of affording the applicant a properly
constituted
disciplinary inquiry procedure regarding his alleged misconduct.
Whilst the second and third respondents make much
of the failure of
the applicant to make written representations on what was essentially
an issue in mitigation, what is abundantly
clear from the applicant’s
correspondence is that he did not regard himself as being guilty of
the alleged misconduct.
[28].
There are number of judgments dealing with the failure of an employer
to comply with its disciplinary procedure, specifically
when the
disciplinary procedures form part of the contract of employment. In
both
Ngubeni
v NYDA
and
Solidarity
v SABC
[18]
the Court held that failure of an employer to comply with its
disciplinary code procedure, where the disciplinary code procedure
forms part of employee’s contract is a breach of that contract
entitling the employee to relief. In both matters the court
declared
the decision by the employer to terminate the contract without
complying with the disciplinary code to a breach of contract
entitling the employees to be reinstated.
[29].
The applicant’s contract of employment specifically
incorporates the disciplinary code and procedure and it is clear
that
the respondents had not complied with the disciplinary code and
procedure when they terminated the applicant’s contract.
As a
result, I am satisfied that the respondents’ termination of the
applicant’s contract of employment constituted
a breach thereof
and that the applicant is entitled to be reinstated.
[30].
Given the specific circumstances of this matter and in particular the
applicant’s complaint regarding the failure of
the respondents
to conduct a disciplinary inquiry and the position he found himself
in at the time of termination of his contract
it is appropriate that
his reinstatement be accompanied by an order directing the
respondent’s comply with the disciplinary
code and procedure,
in other words in order for specific performance.
[31].
Mr. Bruinders suggested that an order of specific performance was
inappropriate. I disagree. This court has in similar matters
ordered
specific performance.
[19]
[32]. There is no reason
why despite the absence of urgency and the limited relief that the
applicant is entitled to that cost should
not follow the result.
Order
[33].
In the circumstances and for the reasons set out above, I make the
following order:
1. It
is declared that the decision of the respondent to terminate the
applicant’s contract of employment is a breach of the
employment contract read with the first respondent’s
disciplinary code procedure;
2. The
termination of the applicant’s employment is set aside and the
applicant is reinstated in the first respondent’s
employee in
the same position that the applicant was in at the date of the
termination of his contract. The applicant is accordingly
reinstated
on suspension pending compliance by the respondent’s with the
applicant’s contract of employment and its
disciplinary code
and procedure.
3. The first respondent
is ordered to pay the applicant’s costs.
D H Gush
Judge of the Labour Court
of South Africa
APPEARANCES
FOR THE APPLICANT: T
Ngcukaitobi and R Tulk
Instructed
by: Thapelo Kharametsane Attorneys
FOR THE RESPONDENT: T
Bruinders SC and S Scott
Instructed
by: Fluxmans Inc.
[1]
See
the letter of 10 November 2016 in the pleadings at page 22.
[2]
Pleadings
at page 63.
[3]
Pleadings
at page 29-30.
[4]
Pleadings
at page 30.
[5]
Pleadings
at pages 65-6.
[6]
Pleadings
at page 69.
[7]
Pleadings
at page 71-2.
[8]
Pleadings
at pages 73-4.
[9]
Pleadings
at pages 75-6.
[10]
Pleadings
pages 52-60 at page 54
[11]
Pleadings
page 57
[12]
Pleadings
at page 90.
[13]
Pleadings
at page 94.
[14]
Pleadings
at page 95.
[15]
Pleadings
page 96.
[16]
Pleadings
at page 98 - para 1.
[17]
Pleadings
at page 98.
[18]
See
Ngubeni
v The National Youth Development Agency and Another
(2014) 35 ILJ 1356 (LC); and
Solidarity
and Others v South African Broadcasting Corporation
2016
(6) SA 73
(LC); (2016) 37 ILJ 2888 (LC).
[19]
Dyakala
v City of Tshwane (J572/15) [2015] ZALCJHB 104.