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[2017] ZALCJHB 215
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Hlehlethe v CEPWAWU (J2455/16) [2017] ZALCJHB 215 (5 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J2455/16
In
the matter between:
MATSEMELA
KLAAS HLEHLETHE
Applicant
And
CEPWAWU
Respondent
DATE
HEARD: 17 November 2016
DATE
DELIVERED: 17 November 2016
DATE EDITED: 05 June 2017
EX-
TEMPORE JUDGMENT
SNYMAN,
J
: In this matter I am
going to give an ex-tempore judgment, judgment reads as follows.
This
is an application by the applicant to uplift his suspension by the
1
st
respondent which suspension was effected on 4 November 2016.
The applicant also applied that the 1
st
and 3
rd
respondents be held in contempt of court in respect of an order
granted by me against them on this same court file on the 3
rd
of November 2016.
This
matter is not a straight forward uplifting of a suspension
case,
and has several complications. What adds to the difficulties is
that this matter has become inextricably linked to current
infighting
that has been taking place in the 1
st
respondent union.
I
do not intend to set out a detailed account of all of the facts of
this matter and will limit my references to facts in this judgment
only to those facts that I consider pertinent in deciding the actual
application now before me. I will now proceed to set
out these
facts.
On
17 October 2016 the applicant was charged with several instances of
misconduct including sexual harassment, fraud and appropriation
of
union funds, intimidation and gross insubordination. The
applicant was also suspended pending contemplated disciplinary
proceedings on these charges.
In
an urgent application filed on 19 October 2016 the applicant then
sought to challenge his suspension and contemplated disciplinary
hearing where it came to all of these charges. The applicant
contended in this application that all that was happening to
him was
based on a purge by the general secretary of the union, Simon
Mofokeng (‘Mofokeng’), of all his opponents.
The
applicant contended that the disciplinary proceedings against him
were an occupational detriment as a result of protected disclosures
he had made concerning unlawful conduct by Mofokeng.
Where
it came to the issue of suspension, the applicant contended that his
suspension was irregular as well as unlawful, and contrary
to the
union’s constitution. He also complained that he did not
have the opportunity to make representations prior
to suspension.
The
matter came before me on 3 November 2016 and by agreement between the
parties a consent order was granted. The consent
order included
that the disciplinary proceedings where it came to the charges raised
in the charge sheet of 17 October 2016, would
be conducted under the
auspices of the CCMA in terms of Section 188A(11) of the LRA and that
an internal disciplinary hearing would
not be held. It was also
agreed that the suspension of the applicant be uplifted.
With
the ink barely dry on the consent order the 1
st
respondent proceeded to go after the suspension of the applicant
again. It gave notice on 3 November 2016 to the applicant
to
make representations why he should not be suspended and then on 4
November 2016 suspended him. It is important to consider
why
the suspension of 4 November 2016 was effected. Part of it
relates to the same reasons for suspension prior to the order
of 3
November 2016. I will deal with further detail in this respect,
later in this judgment.
In
the answering affidavit the 1
st
respondent raises several issues of further conduct of the applicant
in respect of events that took place after suspension his
suspension
was effected on 4 November 2016. The 1
st
respondent has said that the applicant misconducted himself further
in that on or about the 7
th
of November 2016 he attempted to blackmail one Ms Khoto to withdraw
her complaint against him, statements were made to this effect,
and a
charge of intimidation was laid at the Park Road Police Station.
In
addition there is a further contention that on 7 November 2016 a Mr
Sebego referred to a conversation between him and the applicant
where
the applicant attempted to persuade Mr Sebego to convince Ms Khoto to
withdraw the complaint against him. As I have
said, these were
instances which took place after suspension of the applicant had been
effected on the 4
th
of November of 2016.
On
11 November 2016 the applicant then brought a further urgent
application to this court to uplift his suspension which is the
application that is now before me. The applicant has in this
current application challenged his suspension effected on 4
November
2006 on the grounds that it is unlawful and it contravenes the court
order of 3 November 2016.
In
now dealing with the merits of this application I must confess that I
do find the 1
st
respondent’s conduct in first
agreeing to uplifting the suspension of 3 November 2016 and then
barely hours later pursuing
suspension again to be rather peculiar.
Why would the 1
st
respondent agree to such an order and
then just immediately backtrack on it? That being said it must
be emphasised that peculiar
behaviour is not the same as unlawful
behaviour.
What
must immediately be said about the order of 3 November 2016 in
respect of the issue of suspension is that it does not stipulate
that
further suspension is prohibited. If that was the case the
order needed to say so specifically. All that the order
did was
to set aside the suspension that existed before and at that point in
time and then in effect restore the
status quo ante
, prior to
suspension. Restoring the
status quo
means that such
restoration would always be subject to all the rules, provisions and
procedures as they existed prior to the affecting
of the suspension,
in the 1
st
respondent.
In
order for the 1
st
respondent to have waived its rights to
suspend the applicant at any time going forward and in particular
after the order of 3
November 2016 thus had to be specifically
stipulated in the order as I have said above. In order words
the 1
st
respondent would have had to have waived its
rights in the order and the order would have contained words to the
effect that “the
applicant shall not be suspended until
conclusion of these proceedings”.
In
the judgment of
National Union of Metal Workers of SA v Intervalve
(Pty) Ltd and Others
(2015) 36 ILJ 363 (CC) at paragraphs 60 to
61 the court said as follows,
“
Waiver is the
legal right act of abandoning a right on which one is otherwise
entitled to rely. It is not easily inferred
or established.
The onus to prove it lies with the party asserting waiver. That
party is required to establish that
the right holder with full
knowledge of the right decided to abandon it.
So waiver depends on the intention of
the right holder. That can be proved either through express
actions or by conduct that
is inconsistent with the intention to
enforce that right.”
There
is no case made out in the founding affidavit by the applicant that
the 1
st
respondent, knowing that it had the right to
suspend the applicant decided to abandon it indefinitely. In
fact the conduct
as it exists shows the opposite. The 1
st
respondent did not oppose the 1
st
application of 19
October 2016 and agreed to restore, as said, the
status quo ante
where it came to suspension. The court order, simply read,
gives no indication that this right of suspension cannot be exercised
going forward.
As
I have said the decision to implement the suspension immediately
after agreeing to uplift it may be in bad taste but it is not
in
itself unlawful nor prohibited by the order of 3 November 2016.
What is critical in this respect as well is that the order
of 3
November 2016 does not declare that the suspension is unlawful, it
simply uplifts the suspension and makes no determination
as to the
legality of the foundation for the suspension.
The
above being said, what are then the applicant’s rights when it
comes to suspension? Well, this is contained in the
disciplinary code and procedure of the 1
st
respondent and I pause to read the relevant extract which is
contained in Clause 6 and headed “precautionary suspension”.
The relevant parts of the clause are as follows,
“
8.1
In the process of conducting an investigation into the conduct of any
individual that may be affected and such steps necessitate formal
disciplinary steps it may well be that CEPPWAWU considers its
approach, consider it appropriate that such individual(s) be
suspended pending the disciplinary hearing.
8.2
This may be so due to the possibility that in the opinion of the
initiators of the disciplinary steps the presence at work of such an
individual(s) may jeopardise the investigation of the complaint
or
impair the investigations.
8.3
The suspension referred to herein shall be on full pay and without
loss
of any benefits pending the finalization of the investigation
and subsequent disciplinary steps.”
It
is clear from these provisions that the 1
st
respondent has
the right to suspend the applicant pending disciplinary proceedings
and in this case there in fact exists disciplinary
proceedings to be
conducted on the basis of the agreed process contemplated by the
court order of 3 November 2016.
Therefore
suspension in terms of Clause 8 of the 1
st
respondent’s disciplinary proceedings is certainly competent.
The applicant has suggested that the suspension is unlawful
because
it infringes on the union constitution and in this respect his case
is founded on the contention that the suspension is
not properly
authorized in terms of this constitution.
In
this regard the applicant sought to rely on Clause 53 of the
Constitution which deals with the discipline of shop stewards which
needs to be authorized by certain functionaries. The difficulty
with this proposition is that the applicant is not a shop
steward.
He is a Regional Secretary actually employed by the union. Shop
stewards are not employed by the union.
In
the case of disciplinary action by the union against its own
employees the provisions of the union code of conduct and
disciplinary
procedure must apply. This is the procedure in
which Clause 8 which I have referred to above is contained. I
might
also refer to Clause 2 of this disciplinary code which reads
specifically in 2.2 thereof,
“
Elected
staff members of the union who are holding positions in terms of the
constitution of CEPPWAWU and the employees of the union
(non worker
office bearers) these include the general secretary, deputy general
secretary and regional secretaries and this definition
is the
definition that then provides to whom the code applies.”
So
in terms of the code itself, it would apply to the applicant as a
regional secretary.
As
a result the argument of the applicant that the suspension may be
unlawful based upon what is contained in the constitution of
the
union has no substance and must be rejected.
In
this case the suspension is not a disciplinary measure. It is a
holding operation. Any suspension of an employee
preceding
commencement of disciplinary proceedings is not the actual conducting
of discipline itself, as the purpose of the suspension
is to mitigate
further risks to the employer because such discipline is
contemplated, but has not yet come to pass.
As
to the purpose of this kind of suspension, also referred to
precautionary suspension, the court in
Koka
v Director General Provincial Administration North West Government
(1997) 18 ILJ 1718 (LC) referred with approval, to the following
remarks made in the judgment of
Lewis v
Heffer and Others
1978 (3) All ER 354
(CA) at 364 C to E,
“
Very often
irregularities are disclosed in a government department or in a
business house and a man may be suspended on full pay
pending
enquiries. Suspension may rest on him and he is suspended until
he is cleared of it. No one as far as I know
has ever
questioned such a suspension on the ground that it could not be done
unless he is given notice of the charge and an opportunity
of
defending himself and so forth.
The suspension in such a case is merely
done by way of good administration. A situation has arise in
which something must
be done at once. The work of the
department or office is being affected by rumours and suspicions.
The others will
not trust the man. In order to get back
to proper work the man is suspended. At that stage the rules of
natural justice
do not apply.”
I
dealt with similar considerations in the judgment of
Madamela Ida
v The Department of Corporate Governments
2014 ZALCJHB 225 dated
5 September 2013 at paragraph 17 and said,
“
At level of
general principle precautionary suspension is a unilateral act by the
employer which need not be preceded by the application
of the
principles of audi alteram partem.
It is only where specific rules which
is often the case in the public centre, in the public sector,
prescribe the application of
audi alteram partem prior to suspension
that it must be applied. It is then applied not because of a
general principle of
the right to be heard but because the particular
rule in fact stipulates it as an essential requirement. In that
case the
compliance is so because the employer has made its own rules
and must comply with them.”
There
are many of these kind examples in judgments. I can refer to my
judgment in Manamela Ida (supra) at paragraph 20,
Nyati
v Special Investigating Unit
(2011) 32
ILJ 2991 (LC),
Biyase v Sisonke
District Municipality and Another
(2012) 33 ILJ 598 (LC),
Lebo v Makwassi
Hills Municipality and Another (2)
(2012) 33 ILJ 653 (LC) and
SAMWU on
behalf of Dlamini and 2 Others v Mogale City Local Municipality and
Another
[2014] 12 BLLR 1236
(LC).
Accordingly
the applicant cannot rely on unfair conduct relating to the right to
be heard prior to suspension, or other unfair conduct,
in these
proceedings. If the applicant wants to rely on the principle of
unfairness and allege that he has been unfairly
treated he can only
do so in terms of the unfair labour practise jurisdiction and raise
this issue in terms of unfair labour practise
dispute resolution
processes in the CCMA.
In
Member of the Executive Council for
Education North West Province v Gradwell
(2012) 33 ILJ 2033 (LAC) the court said the following at paragraph
45,
“
The right to
a hearing prior to a precautionary suspension arises therefore not
from the constitution PAYA or as an applied term
of the contract of
employment but is a right located within the provisions of the LRA
the correlative of the duty on employers
not to subject employees to
unfair labour practises.
That being the case the right is a
statutory right for which statutory remedies have been provided
together with statutory mechanisms
for resolving disputes in regard
to these rights.”
The
point is that such a case can only be pursued in the CCMA under the
Unfair Labour Practise jurisdiction and not raised in this
court
unless there are exceptional and compelling circumstances which
simply do not exist
in casu
.
Therefore
and in this case, there is no necessity for a prior hearing where it
came to suspending the applicant. The 1
st
respondent was given a discretion to do so based on the circumstances
set out in the disciplinary code. These considerations
were
indeed satisfied based on what is reflected in the suspension notice
itself. Normally that would be the end of the matter
for the
applicant as he cannot establish a right to the relief sought.
The only question that remains is whether the court
order of 3
November 2016 changes anything.
The
application has argued that the circumstances as it existed when the
order was granted was exactly the same as the circumstances
when the
suspension was then again affected immediately following the court
order. The applicant contents in this context
that being aware
of these circumstances and then agreeing to uplift the suspension
which was made a court order the 1
st
respondent should in effect be held bound to this.
The
application in argument conceded that should circumstances perhaps
change the court order would not stand in the way of the
applicant
being suspended again. So and if the applicant did something
wrong or committed conduct after the order was granted
that would
justify suspension then the 1
st
respondent would be free to suspend him but because there was no such
changed circumstances when the suspension was uplifted on
3 November
2016 and then affected on 4 November 2016, and according to the
applicant, the court should have to stand in the way
of such
suspension being affected.
Also
and what may have happened when it came to the later alleged
misconduct of the applicant after this 4 November 2016 suspension
simply cannot serve to justify
ex post
facto,
so to speak, the actual
suspension affected earlier as this earlier suspension could simply
not have been founded on these later
facts.
I
find merit in this argument of the applicant. Whilst it is so
that the 1
st
respondent indeed has a discretion to effect the suspension of the
applicant as a holding operation it must base that discretion
on
something. A discretion cannot be exercised in a vacuum.
In
the case of the October 2016 suspension of the applicant the 1
st
respondent based that discretion on the pending disciplinary hearing
and the serious nature of the allegations of misconduct against
the
applicant. These circumstances continued to exist when the
matter came before me on 3 November 2016. The 1
st
respondent had to be aware that his was indeed the case. The
1
st
respondent could have decided to oppose the issue of the uplifting of
the suspension based on this but instead it chose to agree
to uplift
the suspension of the applicant.
The
simple point then has to be that the most natural plausible and
logical inference that can be drawn from this conduct of the
1
st
respondent is that despite being aware of its rights in this regard
it decided to agree to abandon the suspension based on these
considerations. I again stress that this conduct cannot be seen
to be waiver of rights going forward but it can be seen to
be a
compromise for that which existed at that point in time and into the
past.
To
then rely on the exact same considerations again to effect the
suspension immediately after agreeing to uplift the suspension
based
on those same considerations is simply not appropriate. In my
view this is a classic case where the once and for all
rule should
find application. In
Jansen van
Rensburg NO and Others v Steenkamp and Another – Janse van
Rensburg and Others v Myburgh and Others
2009 (1) All SA 539
(SCA) at paragraph 27 the court said,
“
The scope of
the once and for all rule was said in the National Sorghum case Supra
at 241 D to E to require that all claims generated
by the same cause
of action be instituted in one action.”
As
to when the cause of action would be considered to be the same the
court in
Fidelity Guards Holdings Pty Ltd v Professional
Transport Workers Union and Others
(1999) 20 ILJ 82 (LAC) at
paragraph 7 said,
“
The cause of
action is the same whenever the same matter is in issue:
Wolfaardt
v Colonial Government
16 SC 250
at 253.
The same issue must have been adjudicated upon. An issue is a matter
of fact or question of law in dispute between two
or more parties
which a court is called upon by the parties to determine and
pronounce upon in its judgment, and is relevant
to the relief sought:
Horowitz v Brock & others
1988 (2) SA 160
(A) at 179F-H. …. The reason for the
rule is to prevent difficulties arising from discordant or mutually
contradictory
decisions due to the same action being aired more than
once in different judicial proceedings: Voet 44.2.1. The object of
the rule
is that of public policy which requires that there
should be an end to litigation and that a litigant should not be
harassed twice
upon the same cause”
Applying
the above, the point is simply that the aforesaid considerations were
part and parcel of what was before court in the application
brought
on 19 October 2016 and on which the agreed order of 3 November 2016
was based. It is the same considerations which
despite existing
still resulted in the uplifting of the suspension by way of the court
order.
The
above being the case, it can then be argued that the 1
st
respondent had no legitimate basis on which to found the existence of
its discretion on 3 and 4 November 2016 and then effect the
suspension of the applicant. That being the case it should be
the end of the matter for the 1
st
respondent and the applicant should be entitled to the relief.
However a proper consideration of the notice of intention
to suspend
on 3 November 2016 and the actual notice of suspension of 4 November
2016 is still required to decide whether indeed
the aforesaid
scenario is actually the case and the grounds and reason for
suspension still remains the same. In short, are
there indeed
new grounds for precautionary suspension? I have touched on the
grounds for suspension, on the facts, earlier in the
judgment.
Now
a consideration of the notice of suspension on 4 November 2016, as
well as the notice of intention to suspend on 3 November
2016 shows
the following.
“
In particular
CEPPWAWU (the union) is concerned about the alleged sexual
harassment, intimidation of staff and members, convening
of
unconstitutional meetings, threats of violence against staff and
office bearers and alleged fraud, misappropriation of regional,
of
regional funds.”
If
that ground of suspension is considered it is indeed the same ground
as existed prior to the order of 3 November 2016, and the
once and
for all rule applies. However the notice then adds the
following,
“
Furthermore
it is alleged that you are continuing to act in a manner that is
detrimental to the union and/or its interests.”
It
also adds,
“
The NOBS is
concerned that you may continue to disrupt and render the region
dysfunctional as well as interfere with further investigation
and the
intimidation of potential witnesses.”
The
actual notice of suspension of 4 November 2016 then adds the
following as specifically a reason for the affecting of the
suspension,
“
The
possibility of continued misconduct on your part.”
What
the aforesaid shows is that the circumstances giving rise to
suspension as set out in the notice of intention to suspend and
the
notice of suspension in fact do refer to different circumstances as
those that existed prior to the order on 3 November 2016.
As
a general principle suspension pending a disciplinary hearing, which
is the case in this instance, would normally be justified.
And
as matters now stand, some of the grounds upon which the suspension
of the applicant pending this hearing is pegged, is that
of
allegations of continuous action detrimental to the union, may
continue to disrupt and interfere with investigation, and possibility
of continuous misconduct and to prevent further intimidation.
Accordingly
and even if the grounds that applied when the order was granted on 3
November still relied upon in the suspension of
4 November 2016 are
weeded out, other grounds still remain which can serve to justify the
suspension of the applicant. In
short, the suspension of the
applicant is not only founded on that which existed prior to 3
November 2016 but is founded on other
considerations as well.
In
this context the later misconduct as referred to in the answering
affidavit can serve to justify these grounds as it is precisely
these
fears that served as basis of at least two of these additional
grounds added in the notice of intention to suspend and the
notice of
suspension.
The
content of the answering affidavit in this respect must be accepted
for the purposes of deciding this matter, based on the principle
enunciated in
Plascon Evans Paints v Van
Riebeeck’s Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E to 635 C.
As
to the issue of the alleged contempt by the 1
st
respondent of the order of 3 November 2016 this was not pursued by
the applicant in argument. In any event and considering
what is
set out above the argument has no merit and nothing the 1
st
respondent did in this case was
male
fide
, so no contempt can even be seen
to exist.
I
must say that I think this is a case where justice and fairness will
be far better served if the applicant does not attend at
work pending
the proceedings in the CCMA. It is clear to me that the
applicant’s presence at work, rightly or wrongly
so, could
simply serve to escalate conflict at this stage, prior to the
finalization of the CCMA disciplinary hearing case.
It is in
the best interest of all that the suspension stands.
Accordingly
there is no basis to interfere with the applicant’s suspension
of 4 November 2016 and the application falls to
be dismissed.
Where
it comes to costs I have a wide discretion in terms of Section 162(1)
of the LRA. In this matter the parties still have
an ongoing
continuing relationship. Further the parties are still going to
face one another in disciplinary proceedings to
follow under the
auspices of the CCMA. In my view it would be unfair to in all
these circumstances to mulch either party
with a cost order against
them, and thus no order as to costs would be appropriate in this
instance.
Based
on all of the above reasons I therefore make the following order.
----------------------
ORDER
The
applicant’s application filed on 11 November 2016 is
dismissed.
There
is no order as to costs.
-----------------------
___________________________________
S
SNYMAN
Acting
Judge of the Labour Court of South Africa