About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 347
|
|
Majola v Member of the Executive Council Roads and Transport, Gauteng Provincial Government and Another (J1809-17) [2017] ZALCJHB 347; [2018] 10 BLLR 1022 (LC); (2018) 39 ILJ 2305 (LC) (29 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1809-17
In
the matter between:
MAJOLA,
BONGA
BALDWIN
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL ROADS AND TRANSPORT,
GAUTENG
PROVINCIAL GOVERNMENT
ISMAIL
VADI
First
Respondent
HEAD
OF DEPARTMENT, ROADS AND TRANPORT,
GAUTENG
PROVINCIAL GOVERNMENT
RONALD
SWARTZ
Second
Respondent
Heard:
14 September 2017
Delivered:
29 September 2017
JUDGMENT
WHITCHER,
J:
Introduction:
[1]
The
applicant has approached this court on an urgent basis for orders
that, pending the outcome of the protected disclosure dispute
he
referred to this Court on 24 July 2017,
[1]
his precautionary suspension effected on 30 June 2017 is lifted and
the respondents are interdicted from proceeding with the disciplinary
proceedings it has instituted against him.
[2]
The charges
in the suspension notice allege that in August 2016 the
applicant refused to report to the Head of Department’s
office
after he was temporarily transferred there, continuously disregarded
the authority of the Head of Department, refused to
execute tasks
assigned to him by the Head of Department, refused to submit a
performance agreement and persistently took unauthorised
leave. It
further alleges that the applicant has made false and unsubstantiated
allegations against the Head of Department.
[3]
The
applicant contends that he is being subjected to disciplinary action
on account or partially on account of him having made protected
disclosures against the respondents on 1 February and 14 June.
[4]
In seeking
interim relief, the applicant has to show the existence of a
prima
facie
right even if it is open to some doubt, a well-grounded apprehension
of irreparable harm if interim relief is not granted, the
absence of
an alternative remedy and that the balance of convenience favours the
granting of the interim relief. Other than these
requirements, the
key question is whether the applicant acted with due urgency in
bringing this application.
Background
[5]
It took an
inordinate amount of time to unravel the following series of events
from the voluminous papers in this matter.
[6]
The
parties’ relationship is characterised by a long history of
litigation with claims of persistent misconduct and counter
claims of
occupational detriments.
[7]
The more
recent was played out in February 2017. In August 2016 the
second respondent temporarily transferred the applicant
on the basis
that the applicant did not possess a security clearance, which is a
term of his employment. On 26 January 2017
the applicant,
in an urgent application, claimed that his transfer was on account of
him having made a protected disclosure on
29 August 2016
pertaining to the irregular appointment of legal service providers by
the department in July and August 2016.
On 21 February,
Tlhotlhalemaje J found no merit in the applicant’s claim and
dismissed the application.
[2]
[8]
Following
this there were a series of written exchanges between the parties in
April,
May and June 2017
.
Save for the charge that the applicant has made false allegations
against the second respondent, the exchanges largely cover the
allegations in the suspension and disciplinary notice of
30 June 2017.
[9]
On
11 May 2017
the second respondent directed the applicant to show cause why
disciplinary action should not be taken against him.
[10]
On
17 May
and 25 May 2017
the second respondent sent and received correspondence which, on its
face, indicates that he was in the midst of investigating
irregular
payments in a project, which I will refer to as the William Nicol
project.
[11]
On
14 June 2017
at 9.24am
the second respondent stating that it had been brought to his
attention that the applicant had approached certain officials to
access “sensitive” documents on the William Nicol project
in the absence of prescribed procedures and security clearance.
[12]
On
14 June 2017
at 1pm
the
second respondent informed the applicant that he had considered his
response to the letter of 11 May 2017, why he
was
dissatisfied with the response and that he was preparing to take
disciplinary action against him.
[13]
On
14 June 2017
at 6pm
the
applicant sent out a disclosure pertaining to the William Nicol
project.
[14]
On
30 June 2017
the applicant was placed on precautionary suspension and notified of
the charges levelled against him. As stated earlier on, the
charges
essentially covered the exchanges the parties had been having since
2016 going into 2017.
The
disclosures
[15]
On
1 February 2017
the applicant made a disclosure which alleges that the department had
irregularly appointed certain legal service providers in
July and
August 2016 and implicates the second respondent as the official
Accounting Officer of the department.
[16]
On
14 June 2017
at
6pm the applicant made a disclosure to various levels of government,
including the first respondent, that irregular payments
of
R26 million had been made by the department between January and
April 2017 to a construction company in connection
with the
William Nicol project. He alleges in the disclosure that the
second respondent had not acted on the matter on the
discovery of the
irregularities.
[17]
The
disclosure further alleges that the second respondent had instructed
the payment of the legal service providers irregularly
appointed in
July and August 2016.
[18]
On
28 June 2017
he supplemented both disclosures with further documents.
The
applicant’s prospects of success in the PDA referral
[3]
[19]
In my view,
there is a weak link between the disclosures and the second
respondent’s decision to institute disciplinary action
against
the applicant. I say this for the reasons that follow.
[20]
The
disclosure of 1 February 2017 is really a re-hash of the
disclosure made in August 2016. The disclosure was thus
made
months before disciplinary action was contemplated by the second
respondent.
[21]
The
applicant’s claim that his transfer was on account of him
having made a protected disclosure on 29 August 2016
pertaining to the irregular appointment of legal service providers by
the department in July and August 2016 was dismissed
on 21
February by Tlhotlhalemaje J.
[4]
Thus, in essence, it has already been found that the disclosure of
1 February 2017 is not linked to action being taken
against
the applicant.
[22]
In his
disclosure made on 14 June 2017, the applicant used the
second respondent’s correspondence of 17 and 25 May 2017
to prove irregularities in the William Nicol project. The applicant
would have been aware from this correspondence that the second
respondent was in the midst of investigating the William Nicol
irregularities.
[23]
Disciplinary
action against the applicant was imminent long before he made the
disclosure on 14 June 2017.
[24]
The
applicant would have known this from his prior correspondence with
the second respondent, particularly the letters of April
and
11 May 2017, and, in the unlikely event that he was in any
doubt, the letter he received at 1pm on 14 June 2017.
[25]
He received
the letter informing him of the impending disciplinary action
before
he sent his disclosure of 14 June 2017 to the Premier.
[26]
The
applicant pointed out that on the morning of 14 June 2017
he received an email from Swartz which indicated that Swartz
was
aware that he was making enquiries about the William Nicol project.
This does not favour the applicant’s case in any
significant
manner considering the parties’ correspondence prior thereto
going back to 2016 and April and May 2017,
which in my view
indicated that the second respondent was clearly bent on instituting
disciplinary action and was merely paving
the way thereto.
[27]
There is
only one matter which may favour the applicant in the main
application. One charge is that the applicant has made false
and
unsubstantiated allegations against the HOD. The applicant
submits that this charge clearly demonstrates that he is being
disciplined for making protected disclosures.
[28]
However, if
the second respondent’s view on the matter is correct, the
department is entitled to discipline employees for
making false
allegations.
[29]
The second
respondent testified in his opposing affidavit that he was cleared of
any wrongdoing as alleged in the August/February
disclosure. He
stated that Treasury investigated these claims, and, although its
findings implicated certain officials, it did
not implicate him.
[30]
Furthermore,
contrary to the applicant’s claim in his disclosure of
14 June 2017, the second respondent did act
when he became
aware of the irregularities in the William Nicol project and the
applicant was acutely aware of same when he made
the allegation
against the second respondent.
[31]
An employee
who has purportedly made a protected disclosure is not by virtue of
such granted blanket immunity against prosecution
for misconduct. An
investigation into misconduct and a subsequent prosecution is not
wrongful merely because they follow the employee
having made an
alleged protected disclosure. It will be wrongful if reasonable and
probable grounds for prosecuting are absent
and it is clear that the
intention of the employer is not to obtain a conviction but to harass
the employee for making a protected
disclosure.
[32]
In my view,
the entire history of the parties and their exchanges between them
demonstrates that the charges are grounded in valid
concerns
regarding the conduct of the applicant.
[33]
The courts
have also held that even where an employee has made a protected
disclosure, he must also answer to the allegations against
him and
that employers are entitled to invoke their internal disciplinary
processes as it would be contrary to the spirit and letter
of the PDA
to interfere with internal processes.
[5]
[34]
An employee
may not use the PDA to essentially be a law unto himself in the
workplace, avoid his duties and show complete disregard
for
authority, which appears to be the case in this matter.
[35]
In any
event, even if my evaluation of the matter thus far is wrong, the
applicant has a serious problem with the issue of urgency.
Urgency
[36]
On
14 June 2017 the second respondent categorically told the
applicant in writing that it intended to take disciplinary
action
against him. On 4 July 2017, he was served with a formal
notice thereof. The applicant launched this application
a month
later, on 4 August 2017, and in his notice of motion
effectively gave the respondents’ one court day to
provide a
meaningful opposition.
[37]
I agree
with the respondents that, having delayed for a month to seek the
relief he now seeks, the applicant is not entitled to
approach this
court on an urgent basis. Still less was he entitled to make give the
respondents less than 48 hours to file opposing
papers in this matter
considering its voluminous nature.
[38]
The
applicant submits that the delay was caused by the fact that his
attorneys at first tried to resolve the matter by warning the
respondents against its unlawful conduct and seeking undertakings
from the respondent. However, it is evident from the correspondence
that by 7 July 2017 it was clear that the respondents would
not budge from their position. The applicant would also have
appreciated this in light of the fact that the institution of the
disciplinary proceedings was pre-dated by a series of uncompromising
correspondence on the matter and uncompromising litigation between
the parties on similar matters. I note that in previous urgent
matters against the same respondents, the applicant was warned
against the same claims to explain his delays.
[39]
In light of
these circumstances, this matter falls to be struck from the roll
with costs for want of urgency.
Irreparable
harm and an alternative remedy
[40]
I am also
not convinced that the applicant has no alternative remedy to protect
himself against unfounded allegations and a sham
disciplinary
hearing.
[41]
Section
188A
(11) of the
Labour Relations Act 1995
now contains the following
procedure:
Despite
subsection (1), if an employee alleges in good faith that the holding
of an inquiry contravenes the Protected Disclosures
Act, 2000 (Act 26
of 2000), that employee or the employer may require that an enquiry
be conducted in terms of the section into
allegations by the employer
into the conduct or capacity of the employee.
[42]
In
Letsoalo
& another v Minister of Police & others
[6]
t
he
Labour Court declined to grant urgent applications to postpone
disciplinary enquiries pending the resolution of unfair labour
practice disputes, finding,
inter
alia
,
that the LRA 1995 now provides an alternative remedy in cases
involving claims of a protected disclosure. It noted that s 188A(11)
has recently been enacted to provide a procedure to avoid extensive
collateral and delaying litigation in disputes arising from
protected
disclosures made in terms of the
Protected Disclosures Act 26 of
2000
. The section provides that, if an employee alleges in good faith
that the holding of a disciplinary enquiry contravenes the PDA,
either the employee or the employer may insist that an enquiry into
the employee’s conduct or capacity be conducted by an
arbitrator appointed by the CCMA or a bargaining council. The court,
therefore, found that the applicants ought to have invoked
the
provisions of
s 188A
(11), and were not entitled to the urgent relief
they sought.
[43]
This also
puts paid to any concerns on the part of the applicant regarding
possible irreparable harm that may arise from a disciplinary
hearing
conducted by his employer.
Order
[44]
In the
premises, the following order is made:
1.
The
application is dismissed with costs.
___________________
B.
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
B Ford
Instructed
by:
Ndumiso Voyi Attorneys
For
the respondents:
V Soni, SC
Instructed
by:
State Attorney, Johannesburg
[1]
Under case number
JS 571-17.
[2]
JR 122-17.
[3]
The protected disclosure dispute the
applicant referred to this Court on 24 July 2017.
[4]
JR 122-17.
[5]
Ngobeni v
Minister of Communications and Another
(2014)
35 ILJ 2506 (LC) at [71]
[6]
(2016) 37 ILJ 1916 (LC)