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[2018] ZALCJHB 78
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Rabie v Department of Trade and Industry and Another (J515/18) [2018] ZALCJHB 78 (5 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case no: J515/18
In the matter between:
VIRGIL RABIE
Applicant
and
DEPARTMENT
OF TRADE AND INDUSTRY First
Respondent
SIPHO ZIKODE
N.O
Second
Respondent
Heard:
23 February 2018
Delivered:
05 March 2018
Summary:
Urgent application – stay of the parallel in-house disciplinary
enquiry – a party
to a
section
188A agreement has no discretion to unilaterally abandoned the
pre-dismissal arbitration – the in-house disciplinary
enquiry offends the applicant’s contractual rights –
alternatively, the first respondent is bound by the doctrine of
election.
Practice
and procedure – amendments to a charge sheet can be sought at
any stage of the disciplinary proceedings, including
section 188A
pre-dismissal arbitration.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
This
is an opposed urgent application for an order, firstly, staying the
internal disciplinary enquiry instituted by the first respondent,
the
Department of Trade and Industry (the DTI), against the applicant, Mr
Virgil Rabie (Mr Rabie), pending the finalisation and
outcome of the
pre-dismissal arbitration proceedings instituted by agreement between
the parties and held at the General Public
Service Sectoral
Bargaining Council (the GPSSBC) under case number GPBC615/2017.
Secondly, for an order interdicting the DTI from
instituting any
further disciplinary enquiries against Mr Rabie pending the
finalisation and outcome of the pre-dismissal arbitration
proceedings
instituted by agreement between the parties and held at the GPSSBC
under case number GPBC615/2017.
Factual Background
[2]
Mr
Rabie is the Chief Information Officer in the employ of the DTI. He
is currently on suspension since August 2016 pending the
outcome of
the disciplinary enquiry. He was formally charged with four charges
of misconduct sometime in December 2016. The parties
agreed to a
pre-dismissal arbitration in terms of section 188A of the Labour
Relations Act
[1]
(LRA) under the
auspices of the GPSSBC. The disciplinary enquiry was accordingly
referred to the GPSSBC under case number GPBC615/2017.
[3]
The
pre-dismissal arbitration has been postponed on a number of occasions
at the instance of the DTI. It first sat on 19 December
2016 and the
opening statements were only made on 2 August 2017. The DTI led its
witnesses on 11 December 2017. Mr Rabie is represented
by his
attorneys of record in those proceedings as well.
[4]
The
essence of the charges preferred against Mr Rabie is that, firstly,
he forwarded three confidential emails to Mr Nazeer Ebrahim,
the
Chief Operating Officer of the EOH, without permission and authority
of the Accounting Officer; secondly, he granted access
to his DTI
issued official iPad to external parties; thirdly, that he breached
his suspension conditions by communicating with
Messrs Alistair
Watts, Nazeer Ebrahim and Lionel October in an inappropriate manner;
fourthly, that whilst he was a Project Manager
of IEMS Project, he
failed to disclose his relationship with Mr Mackay, a non-executive
Director at EOH and the Executive Chairman
of the TSS Capital.
[5]
During
the sitting of the pre-dismissal arbitration on 11 December 2017, the
DTI led the evidence of Mr Abrahams of Ubuntu Business
Advisory and
Consulting (Pty) Ltd, the author of the investigation report into the
allegations of misconduct against Mr Rabie.
During his cross
examination Mr Rabie, through his attorneys of record, put a version
of his defence to the effect that he (Mr
Rabie) had informed his
subordinate, Ms Shirleen Kornizer (Ms Kornizer), that the DTI service
provider (EOH) had instituted civil
action against the DTI as a ploy
to put pressure on her to perform as she appeared to be indifferent
about her responsibilities
in as far as the contract between the DTI
and EOH is concerned. However, there was no litigation against the
DTI at that particular
time.
[6]
Consequently,
on 30 January 2018, Mr Rabie was served with another notice to attend
an in-house disciplinary enquiry on charges
of dishonesty and
misrepresentation emanating from the version of defence he had put to
Mr Abrahams. In essence, the charges against
Mr Rabie are that he
misrepresented material facts when he, firstly, informed Ms Kornizer
that EOH had intended litigating against
the DTI; and secondly, when
he informed Ms Jodi Scholtz (Ms Scholtz), the Group Operations
Officer, that EOH has appetite for litigation;
thirdly, that he was
insubordinate when he communicated with Mr Abrahim of EOH when
the DTI had already made the decision
that only the DG would
communicate with EOH on all matters; fourthly, that he failed
to protect the interest of the DTI in
that he misrepresented facts to
Misses Scholtz and Kornizer in an attempt to expedite payments to EOH
despite being fully aware
that such payments were in dispute.
[7]
Mr
Rabie attended the disciplinary enquiry on 13 February 2018 chaired
by the second respondent and raised various preliminary points
but,
pertinently, that there is a pending pre-dismissal arbitration which
pertains to the same subject matter which ought to run
its course as
he could not be subjected to two parallel processes. On 15 February
2018, the second respondent dismissed Mr Rabie’s
preliminary
points and ruled that the disciplinary hearing would proceed on 19
February 2018. These proceedings were launched
on 16 February
2018.
Urgency
[8]
The
DTI argued that the matter is not urgent as Mr Rabie received the
charge sheet together with the notice to attend the disciplinary
enquiry set down for 13 to 15 February 2018 as early as 31 January
2018. Instead of launching the urgent application, on 5 February
2018, Mr Rabie sought the withdrawal of the charges and when his
request was declined, on 9 February 2018, he sought to have that
matter referred to the GPSSBC in terms of section 188A. That request
was also declined on 12 February 2018. The DTI was resolute
that the
in-house disciplinary enquiry would proceed as scheduled and advised
Mr Rabie to raise any preliminary points with the
second respondent.
[9]
Clearly,
Mr Rabie correctly dealt with his objections to the in-house
disciplinary enquiry internally with the DTI and later with
the
second respondent. It was after his points
in
limine
were dismissed that he approached this Court. I am, therefore,
persuaded that the matter is urgent.
Interdicting
incomplete disciplinary proceedings
[10]
The
question that arise in this regard is whether there are exceptional
circumstances that would warrant the Court’s intervention
in an
incomplete disciplinary enquiry. It is common cause that Mr Rabie has
already pleaded to the charges.
[11]
The
DTI argued that the Court has not been favoured with the
circumstances that warrant the
grant
of an urgent interim relief. Mr Rabie has an adequate alternative
recourse which takes away any injustice that might occur
and as such
grave injustice is not feasible in the circumstances, so it was
argued further.
[12]
Mr Rabie,
on the other hand, premised his challenge on the contractual right to
a lawful disciplinary hearing,
inter
alia.
He argued that the pre-dismissal arbitration in terms of section 188A
has replaced the in-house disciplinary enquiry as per
the agreement
between the DTI and himself. The DTI’s unilateral abandonment
of the pre-dismissal arbitration offends Mr Rabie’s
right not
to be subjected to parallel disciplinary proceedings, so his argument
went.
[13]
Tritely, as
correctly submitted by Mr Ramawele, counsel for the DTI, this Court
does not, as a rule, intervene in incomplete disciplinary
proceedings. In
Booysen
v Minister of Safety and Security and Others,
[2]
referred
to by both parties, the Labour Appeal Court (LAC) was categorical
that this Court may only interdict unfair conduct in
the course of
the disciplinary proceedings in ‘exceptional circumstances’,
such as where a grave injustice would result.
Also in
Jiba
v Minister
:
Department
of Justice and Constitutional Development and others,
[3]
this
Court pertinently held that:
‘
Although the court has
jurisdiction to entertain an application to intervene in uncompleted
disciplinary proceedings, it ought not
to do so unless the
circumstances are truly exceptional. Urgent applications to review
and set aside preliminary rulings made during
the course of a
disciplinary enquiry or to challenge the validity of the
institution of the proceedings ought to be discouraged.
These are
matters best dealt with in arbitration proceedings consequent on any
allegation of unfair dismissal, and if necessary,
by this court in
review proceedings under s 145.’
[14]
Mr
Masigo, Mr Rabie’s counsel, submitted that Mr Rabie’s
case presents exceptional circumstances as it is premised on
the
contractual right that stems from the agreement concluded in terms of
section 188A. This section provides the following:
‘
188A Inquiry
by arbitrator.
(1)
An
employer may, with the consent of the employee or in
accordance with a collective agreement, request a council, an
accredited agency or the Commission to appoint an arbitrator to
conduct an inquiry into allegations about the conduct or capacity
of
that employee.
(2)
The
request must be in the prescribed form.
(3)
The council,
accredited agency or the Commission must appoint an arbitrator on
receipt of –
(a)
payment
by the employer of the prescribed fee; and
(b)
the employee’s written
consent to the inquiry.
(4)
(a)
An employee may only consent to an inquiry in terms of this
section after the employee has been advised
of the
allegation referred to in subsection (1).
(b) …
(5)
…
(6)
Section
138, read with the changes required by the context, applies to any
inquiry in terms of this section.
(7)
…
(8)
The
ruling of the arbitrator in an inquiry has the same status as an
arbitration award, and the provisions of sections
143 to 146 apply
with the changes required by the
context to any such ruling.
(9)
An
arbitrator conducting an inquiry in terms of this section must, in
the light of the evidence presented and by reference to the
criteria
of fairness in the Act, rule as to what action, if any, may be taken
against the employee.’
[15]
Mr
Rabie accordingly referred to the two authorities which I now deal
with. In
South
African Transport and Allied Workers Union and Others v MSC Depots
(Pty) Ltd and Others,
[4]
the
Court, as per Van Niekerk J,
articulately
explained the purpose of section 188A as follows:
‘
[11]
Section 188A (despite its unfortunate title which on the face of it,
assumes the outcome of the arbitration
hearing) has as its purpose a
means of expediting dispute resolution by avoiding duplication
between internal and external hearings.
In effect, in terms of a
tripartite agreement between the employee, the employer and the CCMA,
an arbitrator steps into the shoes
of the employer and assumes the
right normally considered a sacrosanct element of the managerial
prerogative - the right to exercise
discipline, including the right
to dismiss. The benefit for all is the elimination of the duplication
that inevitably occurs when
court-like in-house hearings are
inevitably followed by an arbitration hearing conducted on a
de
novo
basis.’
[16]
The
court stated further that:
‘
[15]
It seems to me from the wording of s 188A that once an employer and
an employee consent to refer the
determination of allegations of
misconduct or incapacity to an arbitration hearing in terms of s
188A, and once the CCMA accedes
to the request, the employer
effectively agrees to bypass the application of its internal
disciplinary procedures and to accelerate
the
disciplinary process to the stage of the arbitration hearing
ordinarily applicable in a post-dismissal phase.
That
being so, and since the consent of the affected employee and the CCMA
is necessary to achieve that result, it is not open to
the employer
to abandon the process on a unilateral basis
.’
[Emphasis added]
[17]
The
principle in
MSC
Depots
has been endorsed in
Mchuba
v Passenger Rail Agency of South Africa,
[5]
where the Court stated that:
[16]
‘…
By
referring the matter to pre-dismissal arbitration, the respondent
lost the right to take decisions on the relevance of documents
the
applicant requested as it had handed it over to Tokiso.
When
the tripartite agreement was reached, the respondent had no residual
power to take any step against the applicant including
dismissing him
in terms of its disciplinary code. The respondent had no right to
abandon the pre-dismissal arbitration unilaterally.
By withdrawing
from the pre-dismissal arbitration agreement having elected to deal
with the allegations of misconduct against the
applicant by means of
a pre-dismissal arbitration, the applicant acted in breach of the
applicant’s contract of employment
.’
(Emphasis added)
[18]
Coming
back to the present case, the DTI argued that the above cases are
distinguishable because it is not its intention to abandon
the
pre-dismissal arbitration; those proceedings would still proceed.
Notwithstanding, the DTI seems to be convinced that it could
still
exercise its prerogative, as the employer, to institute the in-house
disciplinary enquiry on charges that are different from
the ones
before the arbitrator. Mr Ramawele was at pains to convince me that
Mr Rabie has no legal right not to be subjected to
parallel
disciplinary enquiries in the absence of a plea of
res
judicator
or
lis
pendens
or double jeopardy.
[19]
The
DTI is clearly disingenuous. The common thread in the charges against
Mr Rabie both before the arbitrator in the pre-dismissal
arbitration
and the in-house disciplinary enquiry is conduct pertaining to EOH,
its service provider. The fact that the second
charge sheet emanates
from Mr Rabie’s version of defence that was put to the DTI’s
witness during the pre-dismissal
arbitration proceedings gives
credence to Mr Rabie’s contention that both proceedings deal
with the same matter.
[20]
There
is no plausible explanation by the DTI as to why the new charges were
not incorporated into the charges before the pre-dismissal
arbitration. Mr Ramawele submitted that the charge sheet could not
have been amended because Mr Rabie has already pleaded to the
charges
and the leading of evidence is already underway. Clearly this
submission is untenable. The arbitrator conducting the pre-dismissal
arbitration is clothed with all the powers in terms of section 138 of
the LRA.
Section
138(1) provides that ‘the commissioner may conduct the
arbitration in a manner that the commissioner considers appropriate
in order to determine the dispute fairly and quickly, but must deal
with the substantial merits of the dispute with the minimum
of legal
formalities’.
[21]
In
Munnik
Basson Dagama Attorneys v Commission for Conciliation, Mediation and
Arbitration and Others,
[6]
the Court, dealing
amendment of a charge sheet after the commencement of the
disciplinary enquiry, had this to say:
‘
[9]
It is trite law that in civil proceedings, amendments to pleadings
and A documents can be
sought at any stage of the proceedings. An
amendment may also be granted at any stage before judgment on such
other terms as to
costs or other matters as the court deems fit. An
amendment may also be allowed on appeal where no prejudice would
thereby be occasioned
for instance where the issues sought to be
introduced by the amendment have been fully canvassed at the trial…
The granting
or refusal of an application for an amendment of a
pleading is a matter for the discretion of the court, to be exercised
judicially
in the light of all the facts and circumstances before it.
An amendment will be allowed where this can be done without prejudice
to the other party...
[10] The
principles referred to in para 9 above apply equally in labour
matters. Nothing prevents an employer
from amending the charge-sheet
before a finding is made. The amendment sought and granted by the
chairperson of the disciplinary
hearing was to categorize the charges
as gross negligence…
[11] I share
the sentiments expressed by Van Niekerk AJ (as he then was) in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
(2006) 27 ILJ 1644 (LC) at 1652:
'The signal of a move to an informal
approach to procedural fairness is clearly presaged by the
explanatory memorandum that accompanied
the draft Labour Relations
Bill. The memorandum stated the following:
"The draft Bill requires a fair,
but brief, pre-dismissal procedure ... [It] I opts for this more
flexible, less onerous, approach
to procedural fairness for various
reasons: small employers, of whom there are a very large number, are
often not able to follow
elaborate pre-dismissal procedures; and not
all procedural defects result in substantial prejudice to the
employee."
On this
approach, there is clearly no place for formal disciplinary
procedures that incorporate all of the accoutrements of a criminal
trial, including the leading of witnesses, technical and complex
"charge-sheets", requests for particulars, the application
of the rules of evidence, legal arguments, and the like
.'
(Emphasis added)
[22]
Clearly,
amendments to the charge sheet can be sought at any stage of the
disciplinary enquiry or pre-dismissal arbitration before
a finding is
made.
[23]
The
delay in finalising the pre-dismissal arbitration cannot be used as
an excuse by the DTI to unilaterally bail out from the pre-dismissal
agreement when it is the architect of the delay. It is, therefore,
mind boggling that the DTI has the audacity to argue that it
owed it
to its employees to expeditiously finalise the in-house disciplinary
enquiry it has commenced given the seriousness of
the charges. The
predicament it finds itself in is self-created as it indolently
prosecuted the pre- dismissal arbitration.
[24]
Strip
of its verbiage, the DTI’s intention is clearly to use the
in-house disciplinary enquiry to parachute from the pre-dismissal
arbitration aircraft, so to speak. it stands to reason that, once
parachuted, it would be impossible to go back to the pre-dismissal
arbitration. In essence, the dismissal of Mr Rabie consequent the
in-house disciplinary hearing would render the pre-dismissal
arbitration moot.
[25]
It is also
evident that the DTI has misconstrued Mr Rabie’s claim.
Even
though Mr Rabie is also claiming procedural fairness, his claim is
also hinged upon section 77(3) of the Basic Conditions of
Employment
Act
[7]
(BCEA) as he is seeking
to enforce his contractual rights in terms of the section 188A
agreement with the DTI. As such, his
armoury
cannot be reduced to procedural fairness as contended by the DTI. The
lawfulness of the in-house disciplinary enquiry is
at issue. That, in
my view, Mr Rabie’s failure to plead of
res
judicata
,
lis
pendens
or double jeopardy as contended by the DIT is inconsequential.
[26]
For that
reason, also
nothing
turns on Mr Rabie’s reasons to support his request for
postponement of the disciplinary enquiry on 15 February 2018.
Whether
he lied about his fitness to proceed with the in-house disciplinary
enquire after the second respondent dismissed his preliminary
points
is of no consequence in these proceedings.
[27]
Another
reason why abandoning the pre-dismissal arbitration is unlawful is
that it is impermissible in terms of the doctrine of
the right of
election which has since been endorsed by the Constitutional Court in
Equity Aviation
Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
.
[8]
The Constitutional Court referred with approval to
Chamber
of Mines of South Africa v National Union of Mineworkers and
Another
[9]
where it was stated that:
‘
One or other of two parties
between whom some legal relationship subsists is sometimes faced with
two alternative and entirely inconsistent
courses of action or
remedies. The principle that in this situation the law will not allow
that party to blow hot and cold is a
fundamental one of general
application. A useful illustration of the principle is offered in the
relationship between master and
servant when there comes to the
knowledge of the former some conduct on the part of the latter
justifying the servant’s dismissal.
The position in which the
master then finds himself is thus described by Bristowe J in
Angehrn
and Piel v Federal Cold Storage Co Ltd
1908
TS 761
at 786:
‘
It seems to me that as soon as
an act or group of acts clearly justifying dismissal comes to the
knowledge of the employer it is
for him to elect whether he will
determine the contract or retain the servant… He must be
allowed a reasonable time within
which to make his election. Still,
make it he must, and having once made it he must abide by it. In
this, as in all cases of election,
he cannot first take one road and
then turn back and take another.
Quod
semel placuit in electionibus amplius displicere non potes
t
(see Coke Litt 146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an
unequivocal act has been performed, that is, an act which necessarily
supposes an election in a particular direction, that is conclusive
proof of the election having taken place.’
The above statement of the principle
may require amplification in the following respect indicated by
Spencer Bower
Estoppel by Representation
(1923) para 244 at
224 - 5:
'It is not... quite correct to say
nakedly that a right of election, when once exercised, is exhausted
and irrevocable, or in Coke's
phraseology:
quod semel in
electionibus placuit amplius displicere non potest
, as if mere
mutability were for its own sake alone banned and penalized by the
law as a public offence, irrespective of the
question whether
any individual has been injured by the volte-face. It is not so. A
man may change his mind as often as he pleases,
so long as no
injustice is thereby done to another. If there is no person who
raises any objection, having the right to do so,
the law raises
none.'’
[28]
Accordingly,
the essence of this matter is Mr Rabie’s objection to the DTI’s
volte
face
.
Conclusion
[29]
In the
circumstances, I agree with the sentiments expressed in authorities
mentioned above. Pending the finalisation of the pre-dismissal
arbitration, the DTI is divested of its power and prerogative to
institute any in-house disciplinary enquiry against Mr Rabie,
including dismissing him consequent to those proceedings, in terms of
the section 188A agreement; alternatively, in terms of the
doctrine
of election. Likewise, in the absence of any right by the DTI to
unilaterally institute the in-house disciplinary enquiry,
Mr Rabie is
entitled to the relief he seeks.
[30]
On costs,
the parties argued that costs should follow the result and I am
inclined to honour the request. The DTI ought to have
been better
advised on the consequences of opposing the relief sought by Mr
Rabie.
[31]
In the
circumstances, I make the following order:
Order
1.
The
in-house disciplinary hearing instituted by the Department of Trade
and Industry against Mr Virgil Rabie is stayed pending the
finalisation and outcome of the pre-dismissal arbitration
proceedings
held at the General Public Service Sectoral Bargaining Council under
case number GPBC615/2017.
2.
The
Department
of Trade and Industry
is
interdicted from instituting any further in-house disciplinary
enquiries against Mr Virgil Rabie pending the finalisation and
outcome of the pre-dismissal arbitration proceedings held at the
General Public Service Sectoral Bargaining Council under case
number
GPBC615/2017.
3.
The
Department
of Trade and Industry to pay the costs of this application.
__________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the applicant:
Advocate G Mashigo
Instructed
by
Thapelo Kharametsane Attorneys
For
the respondents:
Advocate RPA Ramawele SC with Advocate D Mtsweni
Instructed by
State Attorney, Pretoria
[1]
Act
66
of
199
5
as
amended.
[2]
[2011] 1 BLLR 83
(LAC), (2011) 32 ILJ
112 (LAC) at para 36;
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson and others
[2009]
8 BLLR 833
(LC) [2009]
at
para
3,
[3]
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC), (2010) 31
ILJ 112 (LC) at para 17.
[4]
[2012] ZALCD 10; (2013) 34 ILJ 706
(LC) at para 11.
[5]
[2016] 6 BLLR 612
(LC) at para 16.
[6]
(2011) 32 ILJ 1169 (LC).
[7]
Act 75 of 1997.
[8]
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
[2008] 12 BLLR
1129
(CC); [2008] 29 ILJ 2507 (CC) at para 54.
[9]
1987 (1) SA 668
(AD) at
690
D-G.