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[2018] ZALCJHB 239
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IMATU obo Shihambi and Others v City of Ekurhuleni Metropolitan Municipality and Others (J1832/18) [2018] ZALCJHB 239 (6 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: J1832/18
In the matter between:
IMATU
obo SHIHAMBI AND 3
OTHERS
Applicant
and
CITY OF EKURHULENI
METROPOLITAN
MUNICIPALITY
First
Respondent
THE MUNICIPAL MANAGER-
CITY OF EKURHULENI METROPOLITAN
MUNICIPALITY: DR IMOGEN
MASHAZI
Second
Respondent
THE HEAD OF DEPARTMENT: HUMAN
RESOURCES
CITY OF EKURHULENI METROPOLITAN
MUNICIPALITY
MS NALEDI
MODIBEDI
Third
Respondent
Application heard: 31 May 2018
Judgment delivered: 6 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an urgent application to
set aside as unlawful the suspension of the individual applicants
(the employees), and for
an order that they be permitted to resume
their duties with immediate effect.
[2] To the extent that the urgency of
the application was challenged by the respondents, I am satisfied
that contrary to the respondents’
submissions, the applicant
(the union) acted with due diligence in filing the application. The
notices of suspension that is the
subject of these proceedings were
issued on 15 May 2018; the application was filed on 25 May 2018. The
employees were obliged to
consult the union and secure its support
prior to filing the application. Ten calendar days is not an
unreasonable period within
which to secure the necessary authority,
consult, prepare papers and serve and file an application such as the
present. I am satisfied
that the application is urgent and intend to
treat it as such.
[3] Turning to the merits of the
application, both parties in their affidavits have addressed the
issue of the balance of convenience,
a consideration that is relevant
only to interim relief. The applicants seek a final order, and must
accordingly meet the requirements
for final relief. Those are a clear
right, an injury actually committed or reasonably apprehended, and
the absence of similar protection
by any other ordinary remedy (see
Setlogelo v Setlogelo
1914 AD 221).
[4]
The material facts are not in dispute. The employees are all senior
managers, employed by the first respondent. On 7 February
2018, they
were suspended after having been invited to make representations as
to why they should not be, pending an enquiry into
alleged
misconduct. That suspension continued until 8 May 2018. On 9 May
2018, the employees were handed letters notifying them
that they had
been granted special leave (for which none of them had applied) until
‘the final determination of the envisage
(sic) enquiry.’
[5] On 11 May 2018, the union
addressed a letter to the first respondent disputing the special
leave and stating that the respondent
had failed to demonstrate any
reasonable cause to believe that the employees had committed any
misconduct, and further that they
had failed to make out a case to
remove the employees from the workplace during the investigation.
[6] Despite this correspondence, on 14
May 2018, the employees were again suspended, until 14 August 2018.
The only reason for suspension
is reflected as ‘Possibility of
tampering with evidence during the investigation’.
[7] The applicants submit that they
have a clear right to the relief sought on account of the
respondents’ breach of the requirements
of a lawful suspension.
These are:
a.
reasonable cause to believe,
prima
facie
, that an employee has committed
misconduct;
b.
reasonable cause to believe that the
employee’s continued presence in the workplace will jeopardise
any investigation into
the misconduct, and
c.
the employee must be given a hearing, at
least in the sense of an opportunity to make representations as to
why he or she should
not be suspended;
d.
compliance with any relevant contractual
and other regulatory requirements, including the provisions of any
binding collective agreement.
[8] The clear right on which the
applicants rely is a breach by the respondents of the provisions of
disciplinary procedure collective
agreement concluded under the
auspices of the bargaining council. Clause 16 of that agreement
regulates precautionary suspensions
pending a disciplinary hearing
and provides that an employer may suspend an employee pending an
investigation into alleged conduct
if the municipal manager or his or
her authorised representative has reasonable cause to believe that
the employee may jeopardise
any investigation into the alleged
misconduct, interfere with potential witnesses or commit further acts
of misconduct. The agreement
further requires that the municipal
manager must give written notice of any intention to suspend and
afford the employee 48 hours
to make representations as to why he or
she should not be suspended. The municipal manager is thereafter
required to make a determination
as to whether the employee concerned
should be suspended, after having considered the representations.
[9] Clause 16.4 of the agreement
provides that the suspension of an employee may not exceed a period
of three months ‘
from the date that the means by manager …
is satisfied that there is a prima facie case that an act of
misconduct has been
committed
’. However, if circumstances
prohibit the conclusion of disciplinary proceedings within that
period, the suspension may be
extended for a further three months.
[10] It seems to me, consistent with
the applicant’s submission, that what the collective agreement
requires before a lawful
suspension can be implemented is at least a
reasonable belief on the part of the employer that
prima facie
,
the employee has committed an act of serious misconduct, an
objectively justifiable reason to deny the employee access to the
workplace for reasons related to the integrity of any investigation
into the alleged misconduct, and a reasonable opportunity to
make
representations prior to any decision to suspend.
[11] This formulation resonates with
the decision of the Labour Appeal Court in
MEC for Education,
North West Provincial Government v Gradwell
(2012) 33
ILJ
2033 (LAC), where the court held that the conditions precedent to the
lawful exercise of the party suspend where the existence
of a ‘prima
facie case of serious misconduct and the risk of the investigation
being jeopardised’. The court held further
that the
‘justifiability of the suspension invariably rests on the
existence of a
prima facie
reason to believe that the employee
committed serious misconduct’.
[12] In the present instance, in my
view, the respondents have failed to allege and demonstrate the
existence of any
prima facie
evidence of serious misconduct
against the employees. The letter dated 1 February 2018 giving notice
of an intention to suspend
says no more than that ‘an
investigation into the allegation of procurement irregularities
(PS-PT 03 – 2015) is being
investigated against you’.
There is nothing said about the nature of the allegations said to the
subject of the investigation.
In so far as the purpose of the
suspension is concerned, the letter of suspension dated 7 February
2018 records no more than that
the reason for suspension is the
‘Possibility of tampering with evidence, during
investigations.’ In the answering
affidavit, the respondents
seek to make a case that the seniority of the applicants will have
the result that they may intimidate
witness engaged in more junior
positions, or seek to destroy evidence.
[13] It serves little purpose for an
employer simply to assert in nebulous terms that there is
prima
facie
reason to believe that the employee committed serious
misconduct and that he or she may interfere with witnesses or temper
with
the evidence. Some specificity is required; were it not so, the
protections that the collective agreement establishes would be
rendered nugatory. This is not to say that the employer is required
to furnish a list of specific charges and make out a comprehensive
case for interference. The provisions of the collective agreement are
not purely procedural – they are substantive to the
extent that
the employee ought to be accorded sufficient information to be able
to respond in a meaningful way to the employer’s
stated
intention to suspend, by recording with some specificity exactly what
allegations are under investigation, the seriousness
with which they
are viewed and its concerns regarding the consequences of an
employee’s continued presence in the workplace.
[14] In my view, the information
provided by the respondents was insufficient to fulfil the
requirements of the collective agreement
and to enable the employees
to make meaningful representations in response to the invitation to
make submissions as to why they
should not be suspended. This is
particularly so in circumstances such as the present where the
employees had already been suspended
for three months, where their
head of department had already been charged following the
investigation that gave rise to their suspension.
I am satisfied that
the respondents have acted in breach of the collective agreement and
that the applicants have thus established
clear right to the relief
that they seek.
[15] Insofar as the respondents submit
that the applicants should be denied the relief they seek because
they have an alternative
remedy in the form of a referral of their
dispute to the bargaining council, it should be recalled that the
applicant’s contention
is that there suspension is unlawful.
The bargaining council has jurisdiction only over suspensions that
are alleged to be unfair
labour practices. That is not the
respondent’s case and the bargaining council has no
jurisdiction to decide whether the
suspension is lawful. There is
accordingly no alternative remedy available to the employees.
[16] In short, I am satisfied that the
respondents have failed to ensure substantial compliance with the
collective agreement and
that applicants have established that they
are entitled to the relief that they seek. There is the further
matter of authority
– the applicants contend that the official
who issued the notices of suspension had no authority in terms of the
collective
agreement to do so. On a plain reading of the agreement,
there is merit in this point, which the respondents do not appear to
dispute.
I make the following order:
1.
The suspension of the applicant employees
effected through letters issued by the third respondent on 14 May
2018 is declared unlawful.
2.
The suspension of each of the applicant
employees is set aside.
3.
There is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicants: Union official
For
the respondent: Adv. M. Tshivase, instructed by Mogaswa Inc.