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[2018] ZALCJHB 442
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Vermaak v Greater Taung Local Municipality and Others (J490/17) [2018] ZALCJHB 442 (13 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 490/17
In
the matter between:
MARTIN
PHILIP VERMAAK
Applicant
and
GREATER
TAUNG LOCAL MUNICIPALITY
First
Respondent
K.T
GABANAKGOSI
N.O.
Second Respondent
C.
MOTLHABANE
N.O.
Third Respondent
E.
MORULE
N.O.
Fourth
Respondent
Heard:
11 May 2018
Delivered:
13 June 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
[1]
The applicant, Mr Martin Vermaak (Vermaak) seeks various forms of
urgent
relief. Chief amongst them is to have the decision by the
second respondent (the Municipal Manager) to place him on
precautionary
suspension as from 25
th
April 2018,
be reviewed and set aside, and/or that the notice of suspension be
declared to be of no force and effect,
as it is alleged to be in
breach of the provisions of section 5 and 6 of Local Government
Disciplinary Regulations for Senior Managers.
Vermaak further places
reliance on the provisions of clause 13 of the South African Local
Government Bargaining Council’s
(SALGBC) Main Collective
Agreement (2015 – 2020) in contending that his precautionary
suspension is unlawful.
[2]
Other forms of relief sought included
inter alia
an order
restraining the Respondents from suspending him in future or placing
him on special leave on account of frivolous and
vexatious reasons
related to the ones already used and mentioned in his supplementary
and founding affidavits; directing that he
remains employed as the
Municipality’s Chief Financial Officer, and for the
Municipality to continue to give effect to the
terms of his written
contract of employment, until such time as the contract of employment
is lawfully terminated.
[3]
In opposing application, the Municipal Manager and deponent to the
answering
affidavit on behalf of the respondents, questioned the
formulation and competency of the relief sought by Vermaak. He
further denied
that based on the provisions relied upon by Vermaak,
there was any unlawfulness in placing him on precautionary
suspension.
Preliminary
issues
[4]
The Municipality other than challenging the formulation and
competency
of some of the relief sought by Vermaak conceded that to
the extent that he sought an order setting aside his precautionary
suspension,
the application had the hallmark of urgency. On the
averments made in the founding affidavit outlining the reason as to
why the
matter should be treated as urgent, and the concession made
by the Municipality in this regard, I will treat the matter as one of
urgency.
[5]
There are essentially fourteen (14) prayers sought by Vermaak in his
Notice
of Motion. The Municipality correctly took issue with most of
those prayers other than those pertaining to the uplifting of his
precautionary suspension. I agree that no basis for urgency was laid
for those prayers to be granted. In prayer 6 and to a certain
extent,
prayer 11, Vermaak seeks an order restraining the respondents from
suspending or placing him on special leave
in future
for any
frivolous and vexatious reasons. This prayer, despite reference to
reasons related to why he was currently on suspension,
is in
generalised and future terms, making it not competent for this court
to grant.
[6]
In prayers 7 and 8 Vermaak seeks that he remains employed until the
lawful
termination of his contract, or until such time the High Court
in Mahikeng sets aside the arbitration award issued in his favour
in
a matter pending before it under case number M104/2018. Clearly this
form of relief is superfluous. Vermaak remains employed,
albeit
he was placed on precautionary suspension, which is the primary
subject of this application. It is not for this Court to grant
such a
generalised order, let alone in circumstances where the private
arbitration award in respect of his status as an employee
is a
subject of another court proceedings.
[7]
Prayers 9 and 10 pertains to the discovery and handing over of the
Council’s
resolutions in respect of the decision to place
Vermaak on special leave or precautionary suspension. I fail to
appreciate the
reason such an order should be sought in the context
of this urgent application, and also in view of the issues related
thereto
being a subject of review proceedings before the Mafikeng
High Court.
[8]
In prayer
12, Vermaak seeks an order to compel the Municipality to put up
security for costs in the event that it opposed this application
or
pursuing any other litigation, and to further order it to pay all its
wasted costs and counsel’s day fees in respect of
a matter
heard on 9 March 2017. As to the reason such an order should be
sought on an urgent basis is incomprehensible. Once a
court has made
an order in respect of costs, that remains a matter for the
successful party to pursue. In any event, to the extent
that the
respondents have not complied with a previous order of this court in
respect of costs, Clause 13 of this Court’s
Practice Manual
[1]
outlines the procedure to be followed when a contempt order is
sought, and it is impermissible for Vermaak to seek such an order
in
the manner he has. Furthermore, there is no basis for any order to
made in respect of security of costs for the purposes of
this
application. In the event that a further cost order is made in this
application, that is a matter for Vermaak to pursue at
a later stage.
[9]
Under prayer 13, Vermaak seeks an order for
contempt of court in respect of the second to fourth respondents. He
seeks that they
be arrested for allegedly victimizing, harassing him,
and unlawfully suspending him. This relief is clearly not competent,
and
courts do not as a general rule, issue contempt orders in
circumstances where litigants complain of victimisation, harassment
or
unlawful suspensions, unless there is a court order in that
regard. Even then, and to the extent that Vermaak seeks to rely on
the previous order issued by this court on 9 March 2017, the
procedures mentioned in Clause 13 of the Practice Manual of this
Court
as indicated above still have to be complied with.
[10]
Counsel for Vermaak at the commencement of these proceedings took
issue with the
late filing of confirmatory affidavits by the
first and fourth respondents, and their further filing of a
supplementary affidavit.
It was argued that inasmuch as the rules of
this court pertaining to the time frames on the urgent roll were
flexible, that flexibility
did not extent to the filing of further
documents.
[11]
The Notice of Motion and founding affidavits were filed and served on
5 May 2018. The answering
affidavit followed on 7 May 2018 and the
matter was set down on 8 May 2018. It was subsequently
postponed to 10 May 2018
in order to afford Vermaak an opportunity to
file his replying affidavit. The confirmatory affidavits complained
of were filed
on 10 May 2018, and do not add any further substance to
the merits other than to confirm the contents of the answering
affidavit,
and it is apparent that Vermaak cannot complain of any
prejudice in that regard.
[12]
In respect
of the respondent’s supplementary affidavit, it is trite that
in motion proceedings, parties are entitled
to three sets of
affidavits
[2]
. A party can only
submit supplementary affidavits with the leave of the court in the
exercise of its discretion. In this case,
no basis was laid as to the
reason that discretion should be exercised in favour of the
respondents.
Background
[13]
Vermaak
commenced his employment with the Municipality with effect from
16 January 2012 as the Chief Financial Officer.
He is a
Senior Manager employed in terms of the provisions of section 56 of
the Local Government Systems Act (Systems Act).
[3]
[14]
There is some litigation history between the parties. Vermaak was
initially dismissed sometime
in 2013, and having referred a dispute
to the CCMA, he was reinstated in terms of an award issued on 18
August 2013. In February
2017, the Municipality sought to terminate
his contract of employment and or place him on special leave. He had
approached this
court on an urgent basis on 9 March 2017 under the
present case number. This court, per Van Niekerk J, and following an
agreement
between the parties, declared the decision to place him on
special leave and to cancel his contract of service to be of no force
and effect. He was to resume his duties pending private arbitration
proceedings meant to determine the status of his employment
contract.
[15]
In the course of the private arbitration proceedings, a grievance
pertaining to allegations
of sexual harassment and unbecoming
behaviour was lodged against Vermaak by his personal assistant on 11
September 2017. He had
responded to the allegations in writing on 12
September 2017. The private arbitration proceedings were completed
and an award was
issued in Vermaak’s favour on 8 January 2018.
That arbitration award is a subject of review proceedings before the
Mahikeng
High Court.
[16]
The above-mentioned grievance was brought to the attention of the
Municipality through
its former Manager: Human Resources. It is
common cause that the complaint was then dealt with in terms of the
Grievance Procedure
as contained in the SALBC Main Collective
Agreement. The Municipality contends that the HR Manager, who has
since resigned from
its employ, erroneously followed that particular
procedure in respect of the complaint against Vermaak in the light of
the serious
nature of the complaint. It is submitted that a
disciplinary procedure as provided in the Local Government
Disciplinary Regulations
for Senior Managers ought to have been
invoked.
[17]
At a grievance hearing convened by the Municipal Manager on 6
February 2018, its outcome
was
inter alia
that the complainant
would be transferred from the Finance Department, and that she would
be given two days within which to detail
her allegations against
Vermaak in writing. The complainant nonetheless failed to meet the
deadline and only filed further particulars
on 14 March 2018.
[18]
Vermaak complains that upon receipt of the complainant’s
further particulars in respect
of the allegations, he was given a
mere six days to reply thereto, and had done so on 22 March 2018.
This was after the Municipality
had
on
20 March 2018, written a letter to him
requesting
his reply to the allegations against him, and where he had on
21 March 2018 informed the Municipality
that he was not in
a position to respond to the allegations at that stage.
[19]
The Municipality denies that a response to the allegations was
forthcoming from Vermaak.
The Municipal Manager addressed a letter to
him on 27 March 2018, in which it was recorded that his
letter of 21 March 2018
was an indication that he was not
going to respond to the substantiated allegations made by the
complainant, and that officially,
the grievance procedure had been
concluded and the grievance remained unresolved. Vermaak was informed
that the matter was now
out of the hands of the Municipal Manager as
the Accounting Officer.
[20]
The Municipal Manager contends that since the grievance procedure at
that stage had been
exhausted and the complainant remained
unsatisfied, he was of the opinion that in view of the seriousness of
the allegations against
Vermaak, the matter ought to be referred to
the Municipal Council for it consideration. The Council in turn
passed a resolution
to initiate an investigation into the allegations
of misconduct against Vermaak.
[21]
On 29 March 2018, Vermaak was invited to make written
representations on why
he should not be placed on suspension, and to
do so by
23 January 2018
. On 3 April 2018,
Vermaak through his attorneys of record sent correspondence to the
Municipality to protest against
what he viewed to be frivolous
disciplinary processes against him. He further threatened to
institute urgent proceedings to interdict
the intended suspension.
Vermaak further demanded that he be provided with a copy of the
resolution in terms of which the Council
took the decision to
contemplate placing him on suspension. He demanded that his
suspension be uplifted by no later than 5 April 2018
at
14:00.
[22]
On 25 April 2018, the Municipality wrote to Vermaak to
inform him that the deadline
date by which written representations
should be made was corrected as 13 April 2018. The letter
further recorded that
Vermaak had not made any representation and
that the deadline of 13 April 2018 came and passed. He was
also advised that
an investigator had been appointed to look into the
allegations against him.
[23]
The Municipality proceeded to suspend Vermaak without his written
representations, and
concluded that his presence at the premises
might interfere with the investigations against him. In the result,
he was placed on
precautionary suspension, excused from attending
work with effect from 26 April 2018, and ordered to hand
over his tools
of trade.
[24]
On 26 April 2018, Vermaak put the Municipality on notice of
his contemplated
legal proceedings, and again demanded that his
suspension be uplifted. The Municipality nonetheless refused to yield
to his demands,
resulting in this application being launched on 5 May
2018.
Submissions
and evaluation
[25]
Vermaak seeks
final relief, and as such, he must
demonstrate the existence of a clear right; an injury actually
committed or reasonably apprehended;
and the absence of any other
satisfactory remedy.
Being a senior manager, his terms and
conditions of employment are governed by the Local Government:
Regulations: Appointment and
Conditions of Employment of Senior
Managers promulgated in terms of the Local Government: Municipality
Systems Act of 2000 (the
Regulations).
[26]
His claim of a clear right is grounded in those provisions,
particularly its clauses 5
and 6. The provisions of Clause 13 of the
SALGBC Main Collective Agreement (2015 – 2020) are relied upon
by Vermaak for the
contention that the grievance not having been
resolved as the Municipality had alleged, it ought to have been
referred to the SALGBC
by the Complainant, and that there was no
basis for the Municipality to convert that grievance into a
disciplinary matter.
Non-compliance
with Clause 13 of the SALGBC Main Collective Agreement (2015 –
2020)?
[27]
The agreement provides for various steps in resolving grievances.
Under Clause 13.2 of
the Grievance Procedure, an aggrieved employee
must lodge a grievance in writing with his or her immediate superior
setting out
that nature of the complaint and desired result. Under
Clause 13.2, if the grievance has not been resolved to the
satisfaction
of the aggrieved employee within 10 days of lodging that
grievance, the employee may refer the matter within 10 days to the
HOD
or his or her nominee.
[28]
In terms of clause 13.3, the HOD or nominee shall arrange a meeting
to consult and hold
discussions with the affected parties in an
attempt to achieve a resolution. The HOD must endeavour to resolve
the grievance within
10 days of it being referred and shall inform
the employee of the outcome in writing.
[29]
Under clause 13.4, if the grievance lodged has not been resolved to
the satisfaction of
the aggrieved employee within 10 days of it being
referred to the HOD, the employee may refer the grievance to the
Municipal Manager/nominee
within 10 days, who shall hold a meeting
with the affected parties. If the grievance still remains unresolved
having been referred
to the Municipal Manager, the aggrieved party
may refer it to the Bargaining Council for adjudication under clause
13.4.5.
[30]
Vermaak’s contention was that the Municipality had knowledge of
the grievance since
3 October 2017 as evident from annexure
‘R2’ to the replying affidavit, and had not resolved it
even though
he had responded to it immediately after he was requested
to do so. He contended that the grievance was not dealt with in
accordance
with the time periods stipulated in clause 13.4 of the
Collective Agreement. To the extent that the grievance could not be
heard
immediately after it was lodged on the basis that the grievant
was not ‘ready’, he submitted that since the grievance
hearing was only held in February 2018, it can only imply that the
alleged misconduct was not as serious as the Municipality exaggerated
it to be.
[31]
Vermaak further submitted that in accordance with the provisions of
clause 13.4.5 of the
procedure, the aggrieved ought to have referred
the matter to the SALGBC and she had not done so. In these
circumstances, he questioned
the authority of the Municipal Manager
to convert a grievance complaint and process into a disciplinary
procedure, and submitted
that such conduct showed biasness on the
part of the Municipality, and was also
ultra vires
.
[32]
It was submitted on behalf of the Municipality that when the
complainant reported the matter
to the HR Manager, she did not choose
that the allegations be treated as a grievance, and that it was the
HR Manager (alleged to
be a close friend of Vermaak) who on his
own chose to handle the allegations by way of a grievance, with a
view of assisting
Vermaak to escape the harsher and severe
consequences of a disciplinary process.
[33]
It was further submitted that to the extent that the Municipal
Manager had called the complainant
and Vermaak to a meeting to
discuss the grievance, there was compliance with clauses 13.4.1 and
13.4.2 of the Collective Agreement.
To that end, it was further
submitted that since Vermaak failed to submit his further responses
after the final meeting, the Municipal
Manager was obliged to act
against allegations of sexual harassment, and only needed to have
sufficient knowledge of the allegations
in order to initiate
corrective steps as he was obliged to do. This was particularly so
since the complainant had not indicated
her willingness to refer her
grievance to the Bargaining Council, nor did she protest the manner
in which the grievance process
was concluded. To that end, it was
submitted that clause 13.4.5 of the Collective Agreement did not find
application in this dispute.
[34]
The Municipality’s contention being that it had complied with
the provisions of the
Collective Agreement, and had further taken the
initiative to initiate a disciplinary process, it was nonetheless
common cause
that the complaint first came to light in October 2017.
There is no explanation as to the reason that it was not timeously
dealt
with in accordance with the time provisions stipulated in the
agreement, specifically after Vermaak had responded to the
allegations
as early as October 2017. The only explanation proffered
by the Municipality was that the HR Manager effectively delayed the
hearing
of the grievance as he took long in assisting the
complainant, and it was only in December 2017 that the Municipal
Manager took
over the matter and initiated the hearing. At most, the
Municipality conceded that it had not complied with the time
stipulated
frames in the agreement, but contended that on the
whole, all the grievance steps were complied with when Vermaak failed
to respond
to the further particulars in respect of the compliant,
and that the failure to comply with the time frames in any event did
not
invalidate the grievance procedure.
[35]
Following
from the last meeting held with Vermaak and the grievant, the latter
was directed to file further submissions within two
days, but had
taken some time to do so. When she did file her further submissions
on 14 March 2018
[4]
, (since the
grievance hearing of 6 February 2018), Vermaak was afforded six
days within which to respond. In my view, the
period afforded to him
to respond was sufficient, and I cannot find anything unfair or
prejudicial about it in that regard, particularly
in the absence of
his indication that he needed more time.
[36]
There is a
dispute as to whether or not Vermaak had responded to the
further particulars of the complainant on 22 March 2018
[5]
.
The Municipal Manager however denied having received this response
and accused Vermaak of being untruthful. Annexure ‘MV10’
to the founding affidavit is a letter sent by Vermaak on 21 March
2018 to the Municipal Manager, in which he indicated his intention
to
meet with him, and further stating that he was not at
that
point
in a position to respond to the complainant’s submissions as it
was riddled with hearsay. He questioned whether the grievance
was
properly handled and further indicated that he had a busy schedule.
[37]
The Municipality’s contention was that Vermaak’s response
showed no commitment
as to whether he would respond and if so when.
On the same date of 21 March 2018, correspondence was sent to Vermaak
by the Municipal
Manager, requesting him to make representations as
to why he should not be suspended in the light of his response of the
same date.
[38]
Vermaak responded via e-mail on 29 March 2018 and complained about a
variety of issues.
Pertinent with his response was that even though
the complainant was given 36 days to respond whilst he was only given
6, he had
a response ready as at 22 March 2018 but was delayed by his
union representative who was on leave, with whom he wanted to go
through
his responses.
[39]
Based on a
variety of factors, including that (a) the Municipal Manager’s
assertions that Vermaak’s response of 27 March
2018 was not
received; (b) Vermaak’s failure to indicate in his e-mail of 21
March 2018 that he either needed more time to
respond due to his busy
schedule or unavailability of union representative, and if so when,
or a firm assertion by him that he
had responded; and (c) his belated
response on 29 March 2018, I am of the view that on the
authority of
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[6]
,
the probabilities favour the Municipality’s contentions that
indeed no response was received from him on 22 March 2018 as
he had
alleged. It is apparent from his e-mail of 21 March 2018 that his
responses could not have been submitted on that date as
his union
representative was not available at the time to go through those
responses with him. Other than pointing out this factor,
nowhere is
it indicated that despite the non-availability of the Union official,
the response was sent through nonetheless, and
if so when, upon the
union official being available.
[40]
In the light of the above conclusions, it should be accepted that the
Municipality was
therefore entitled to consider the grievance process
as closed. It is common cause that the grievant in terms of clause
13.4.5
of the Grievance Procedure had an option of referring the
matter to the SALGBC in the event that the grievance was not resolved
to her satisfaction, and had not done so. The issue then remains
whether that option barred the Municipality from taking the matter
any further.
Non-compliance
with the provisions of Local Government Disciplinary Regulations for
Senior Managers?:
[41]
Under Clause 4.1 and 4.2 of the Regulations, if a senior manager is
alleged to have committed
misconduct, the municipal council must
institute disciplinary proceedings in accordance with the
Disciplinary Code (Regulations).
The maintenance of discipline is the
responsibility of the municipality. Annexure ‘A’ to the
Regulations contains a
list various categories of acts of misconduct
subject to discipline. Sexual harassment under Part II of Item 10 is
listed under
a category of ‘Serious Misconduct’.
[42]
As it was correctly pointed out on behalf of the Municipality, given
the serious nature
of the allegations, they could not therefore have
only been treated as a mere grievance. Even if the Municipality had
initially
chosen the grievance procedure route in dealing with the
allegations, in the end, that process had taken its course, and
there is no indication that the grievance was satisfactorily
resolved. In my view, the Municipality was within its rights based
on
the provisions of the Regulations to proceed to a disciplinary
process. That decision was independent from the complainant’s
rights to pursue the grievance at the SALGBC in accordance with the
provisions of clause 13.4.5 of the Grievance Procedure if she
so
wished. Vermaak questioned whether in suspending him the Municipality
followed the provisions of the Regulations. These provide
that;
‘
5.
Disciplinary procedures.
(1)
Any allegation of misconduct against a
senior manager must be brought to the attention of the municipal
council.
(2)
An allegation referred to in sub-regulation
(1) must be tabled by the mayor or the municipal manager, as the case
may be, before
the municipal council not later than seven [7] days
after receipt thereof, failing which the mayor may request the
Speaker to convene
a special council meeting within seven [7] days to
consider the said report.
(3)
If the municipal council is satisfied that
–
(a)
there is a reasonable cause to believe that
an act of misconduct has been committed by the senior manager, the
municipal council
must within seven [7] days appoint an independent
investigator to investigate the allegation[s] of misconduct; and
(b)
there is no evidence to support the
allegation[s] of misconduct against the senior manager, the municipal
council must within seven
[7] days dismiss the allegation[s] of
misconduct.
(4)
The investigator appointed in terms of
sub-regulation (3)(a) must, within a period of thirty [30] days of
his or her appointment,
submit a report with recommendations to the
mayor or municipal manager, as the case may be.
(5)
The report contemplated in sub-regulation
(4) must be tabled before the municipal council in the manner and
within the timeframe
as set out in sub-regulation (2).
(6)
After having considered the report referred
to in sub regulation (4), the municipal council must by way of a
resolution institute
disciplinary proceedings against the senior
manager.
(7)
The resolution in sub-regulation (6) must-
(a)
include a determination as to whether the
alleged misconduct is of a serious or a less serious nature;
(b)
authorize the mayor, in the case of
municipal manager, or municipal manager, in the case of the manager,
directly accountable to
the municipal manager to -
(i)
appoint -
(aa) an independent and
external presiding officer; and
(bb) an officer to lead
evidence; and
(ii)
sign the letters of appointment.
6. Precautionary
suspension
(1)
The municipal council may suspend a senior manager on full pay if it
is alleged that the senior manager
has committed an act of
misconduct, where the municipal council has reason to believe that-
(a)
the presence of the senior manager at the workplace may -
(i)
jeopardise any investigation into the alleged misconduct;
(ii)
endanger the well-being or safety of any person or municipal
property; or
(iii)
be detrimental to stability in the municipality; or
(b)
the senior manager may-
(i)
interfere with potential witnesses; or
(ii)
commit further acts of misconduct.
(2)
Before a senior manager may be suspended, he or she must be given an
opportunity to make a written representation
to the municipal council
why he or she should not be suspended, within seven [7] days of being
notified of the council's decision
to suspend him or her.
(3)
The municipal council must consider any representation submitted to
it by the senior manager within seven
[7] days.
(4)
After having considered the matters set out in subregulation (1), as
well as the senior manager's representations
contemplated in
sub-regulation (2), the municipal council may suspend the senior
manager concerned.
(5)
The municipal council must inform -
(a)
the senior manager in writing of the reasons for his or her
suspension on or before the date on which
the senior manager is
suspended; and
(b)
the Minister and the MEC responsible for local government in the
province where such suspension has
taken place, must be notified in
writing of such suspension and the reasons for such within a period
of seven [7] days after such
suspension.
(6) (a)
If a senior manager is suspended, a disciplinary hearing must
commence within
three months after the date of suspension, failing
which the suspension will automatically lapse.
(b)
The period of three months referred to in paragraph (a) may not be
extended by council.”
[43]
Vermaak’s contentions were that the Municipality failed to
comply with the above
provisions, thus making his suspension unlawful
on the grounds that:
43.1.
There was no reasonable
prima facie
evidence indicating that
he committed the alleged transgression and as such, there was no
basis for his suspension.
43.2.
The provisions of section 5(3) of the Systems Act read with clause
6(1) of the Local Government
Disciplinary Regulations for Senior
Managers, 2010 (Regulations) required that there must be sufficient
indicators of a misconduct
before a suspension could be imposed.
43.3.
In respect of irreparable harm, Vermaak contends that he had tasks to
complete and to
meet the deadline of 30 June 2018. He
pointed out that it had come to his attention that the Financial
Department he
was in charge of was not coping and needed his
assistance; that it was in the best interest of the citizens that he
be brought
back to the Municipality; and to safeguard against
wasteful expenditure of public funds. Vermaak further alleged that it
was apparent
even from the Municipality’s own opposing
affidavit that those within it were hell bent on helping themselves
to state funds.
43.4.
He further submitted that he had no alternative remedies except for
this proceedings,
and that several attempts were made to
resolve the matter internally to no avail. He contends that the
Bargaining Council
does not deal with this matters on urgent basis
and its jurisdiction was limited to testing the fairness of
suspensions and not
to deal with the unlawfulness thereof.
[44]
The Municipality denied that the suspension was in contravention of
clauses 5 and 6 of
the Regulations, and further contended that there
was no need for a strict compliance with the Regulations, in
that
an invitation for representation would ordinary be regarded as
sufficient to demonstrate adequate compliance with the requirement
of
a fair procedure. It was pointed out that Vermaak was in fact invited
to make representation and had opted not to do so.
[45]
The
Municipality relied on the decision in
Mere
v Twaing Local Municipality and Another
[7]
for the proposition that a Senior Manager who was invited to make
representations but failed or refused to do so could not then
at a
later stage complain about the lawfulness of the suspension if so
imposed. The Municipality contends that the circumstances
of
Vermaak’s case fell squarely within the principle stated in
Mere
.
To this end, since Vermaak failed to take the opportunity to make
representations, he was precluded from challenging the lawfulness
of
his suspension.
[46]
Vermaak’s main contention in respect of the provisions of the
pre-suspension procedures
was that there was no reason for the
Municipality to believe that he had committed the alleged misconduct
as contemplated in clause
5 (3), or that his suspension and removal
from the workplace was justified.
[47]
I accept that based on the provisions of Item 10 of Annexure ‘A’
to the Regulations,
allegations of sexual harassment are indeed
serious, necessitating the Municipality to take the necessary
disciplinary action.
The fact that the conduct complained of is
classified as serious by the Regulations is however not the end of
the matter, in that
it is both the process of investigation under
clause 5 (3) (a) of the Regulations and the opportunity to make
representations under
clause 6 (2) that determines through a factual
enquiry, as to how serious that conduct is for the purpose of further
disciplinary
action.
[48]
Vermaak alleged that the appointed investigator was not independent,
and was compromised
as he had a relationship with the Municipality’s
attorneys of record. Other than this complaint, Vermaak submitted
that in
light of the time periods that had lapsed since the complaint
surfaced, it could not be said that it was serious enough as
portrayed
by the respondents.
[49]
In this case, as at the hearing of this matter, the investigations
into the allegations
were under way. Whether the investigator is
biased against Vermaak is not an issue which this court can presently
determine, nor
is it for the court to pre-judge the conduct and
conclusions of the investigator.
[50]
Pending
that investigation however, the Municipality took a decision to place
Vermaak on precautionary suspension. He contends that
such a step was
unlawful as he was not afforded an opportunity to make
representations. Both parties correctly referred to
Mogotlhe
v Premier of the North West Province & another
[8]
for the
proposition that certain minimum criteria should be satisfied prior
to an employee being placed on suspension. These are
that the
employer must have justifiable reason to believe
prima
facie
at least, that the employee was engaged in serious misconduct; that
there is some objectively justifiable reason to deny the employee
access to the workplace; and that the employee must be heard before a
decision to suspend is imposed.
[51]
Various
other authorities were relied upon for the proposition that there is
no requirement for strict compliance with the regulations,
and that
only substantial compliance was sufficient
[9]
;
or that an opportunity to make written representations showing cause
why a precautionary suspension should not be imposed will
ordinarily
constitute acceptable and adequate compliance with the requirements
of procedural fairness
[10]
.
[52]
The
question that arises in this matter is whether the respondent, in
suspending the applicant, complied with regulation 6 of the
Regulations. A related question is whether the respondent has
complied with the principles of natural of justice as provided for
in
regulation 4 (4) of the Regulations
[11]
.
This is in line with the expectation that the employer will afford an
employee a reasonable opportunity to make representations
prior to a
suspension being imposed. This is a requirement of the
audi
rule, which is part of the rules of natural justice deeply entrenched
in our constitution and the Regulations themselves.
[53]
In this case, in the light of the nature of the complaint, which
Vermaak had responded
to as soon as it had surfaced in
September/October 2017; the meeting held between Vermaak, the
complainant and the Municipal Manager
in the course of the grievance
hearing; and the subsequent further particulars provided by the
complainant, I am satisfied that
it can safely be said that Vermaak
was fully aware of the allegations against him.
[54]
The question whether Vermaak was afforded an opportunity to make
representations prior
to the precautionary suspension being imposed
however has to be determined within the context of correspondence
exchanged between
the parties with effect from 29 March 2018, when
the Municipal Manager called upon Vermaak to show cause why he
should not
be placed on precautionary suspension. Vermaak’s
attorneys of record’s response on 3 April 2018 was to
inter alia
complain about the unlawful and frivolous legal
processes against him and continued victimisation and harassment.
They nonetheless
went further and demanded that the letter be
retracted by 5 April 2018 failing which an urgent application would
be brought to
this court. In the letter, the attorneys also demand
copies of the council’s resolution. The Municipality did not
respond
to Vermaak’s attorneys of record correspondence. The
Municipal Manager in his correspondence of 25 April 2018 then
informed
Vermaak that he was placed on precautionary suspension with
effect from 26 April 2018 until further notice. It was further stated
in that letter that the date of 23 January 2018 in previous
correspondence was incorrect; that Vermaak had until 13 April 2018
to
make his written submissions, and had failed to do so.
[55]
It is not clear from the pleadings or correspondences exchanged
between the parties as
to when the Municipality had corrected the
date from 23 January 2018 to 13 April 2018. Be that as it may,
following the correspondence
advising Vermaak that he was placed on
suspension, his attorneys on 26 April 2018 in their last
correspondence did not dispute
that the date was corrected or
indicated that they needed more time to make representations.
[56]
The difficulties Vermaak finds himself in are essentially of his own
making. It is appreciated
that he was or is aggrieved by what he
perceived to be his relentless persecution, victimisation and
harassment by the Municipality.
One can understand his frustrations
and views on the matter in light of the history of litigation between
the parties, and the
fact that the Municipality appears to have
targeted him for whatever reason. The difficulty however remains that
an employee cannot
complain of unlawfulness or breach of
pre-suspension procedures in circumstances where that employee failed
to take an opportunity
to make written representations when called
upon to do so as was stated in
Mere
.
[57]
In the
whirlwind of our local government politics as we have come to know
it, it is appreciated that employers often use suspensions
for
nefarious reasons
[12]
.
However, the fact remains that any step taken by an employer in
seeking to suspend that employee cannot on the say-so of that
employee be deemed to be unlawful, irregular, invalid or whatever
term litigants ordinarily use in such proceedings. Even if an
employee has reason to believe that the notice of contemplated
suspension is flawed for whatever reason, or that there is a
sustained
campaign to victimise or harass him or her, those are the
issues to be raised within the context of written representations the
employee is required to make.
[58]
It was
stated in
Gradwell
[13]
that;
“
The
justifiability of a suspension invariably rests on the existence of a
prima facie reason to believe that the employee committed
serious
misconduct. Only once that has been established objectively, will it
be possible to meaningfully engage in the second line
of enquiry (the
justifiability of denying access) with the requisite measure of
conviction. The nature, likelihood and the seriousness
of the alleged
misconduct will always be relevant considerations in deciding whether
the denial of access to the workplace was
justifiable.”
[59]
What this
therefore means is that because, as in this case, the nature of the
allegations are considered to be serious in terms
of the Regulations,
it is not sufficient for the employee or his or her attorney to
simply criticise the process and refuse to
make the submissions as
requested. To the extent that a suspension would invariably lead to a
removal of an employee from the workplace,
it further follows that it
is only from the written representations made by the employee that it
can be concluded whether the allegations
are indeed serious, or
whether there is justifiable cause for his removal. If no written
representations are forthcoming though,
I fail to appreciate on what
basis it can be concluded that there is no reason to believe that the
allegations are not serious
or that there are no justifiable grounds
calling for the removal of that employee from the workplace
[14]
.
[60]
In regards to the seriousness of the misconduct alleged against
Vermaak, it cannot in the
absence of his own written submissions
prior to his precautionary suspension, be said that there was
anything placed before the
Municipality to conclude that those
allegations were not serious. It is not for this court to make a
pronouncement on how serious
those allegations are as currently,
there are allegations and counter-allegations between Vermaak and the
complainant. The issue
however remains that those allegations were
made, and Vermaak elected not to make representations as to why he
should not be suspended.
Conclusion
[61]
Having had regard to the pleadings and the submissions before Court,
I am satisfied that
there is no basis for a conclusion to be reached
that the precautionary suspension of Vermaak can be said to be
unlawful, or in
breach of the provisions of the Regulations, or those
of the Grievance Procedure as contained in the Main Collective
Agreement.
I am satisfied that on the facts, Vermaak was afforded an
opportunity under the provisions of clause 6 of the Regulations to
state
the reasons he should not be suspended. Rather than making
those written submissions, Vermaak, though his attorneys of record,
chose to engage the Municipality at a level which was not consistent
with the provisions of the Regulations and refused to make
written
representations at his own peril. His allegation of a breach of these
provisions is therefore unsustainable under the circumstances.
[62]
As Vermaak was placed on precautionary suspension with full pay
pending investigations,
it can also not be correct to suggest that he
has no alternative remedies or that he would suffer irreparable harm
if the relief
he seeks is not granted. Furthermore, the inbuilt
limitations contained in clause 6 (a) of the Regulations will ensure
that his
suspension is not indefinite.
[63]
The contentions that the Municipality’s citizens would suffer
with his removal and/or
that those who want to remove him merely seek
to do so in order to gain access to the coffers of the Municipality
cannot be issues
that tilts the balance of convenience in his favour.
Those contentions are for now, based on conjecture and not
supported
by evidence in the pleadings.
[64]
I have further had regard to the requirements of law and fairness in
respect to the issue
of costs, and hold the firm view that each party
must pay its own costs.
[65]
In the circumstances, the following order is made:
Order:
1.
The applicant’s application is dismissed;
2.
Each party is to pay its own costs.
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. M.E. Coetzee
Instructed
by:
Nilsen Steekamp & Koen Incorporated
For
the First Respondent:
Adv. P.M. Ramoshaba
Instructed
by:
Mokhetle Attorneys Incorporated
[1]
13
CONTEMPT OF COURT
13.1
‘... In order to avoid this and the prejudice which results
therefrom an
application for contempt of Court must be launched on
an
ex parte
basis on a Friday in Motion Court, where the
applicant must seek an order that the respondent be ordered to
appear at the Labour
Court to show cause why it should not be held
to be in contempt.
13.2
An application which seeks for the court to make a finding that a
party is in contempt
of an order of the Labour Court must be made ex
parte by way of a notice of motion accompanied by a founding
affidavit…’
[2]
Hano
Trading CC v J R 209 Investments (Pty) Ltd
2013 (1) SA 161
(SCA);
[2013] 1 All SA 142
(SCA) at para 10.
[3]
Act 32 of 2000, as amended.
[4]
Annexure
‘MM2’ to the Answering Affidavit
[5]
Annexure
‘MV9’ to the Applicant’s supplementary affidavit
[6]
1984(3) SA 623 (AD); See also
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) where it was held that;:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the Plascon-Evans rule that where in
motion proceedings disputes of fact arise on
the affidavits, a final
order can be granted only if the facts averred in the applicant’s
(Mr Zuma’s) affidavits,
which have been admitted by the
respondent (the NDPP), together with the facts alleged by the
latter, justify such order. It
may be different if the respondent’s
version consists of bald or uncreditworthy denials, raises
fictitious disputes of
fact, is palpably implausible, far-fetched or
so clearly untenable that the court is justified in rejecting them
merely on the
papers.’ (Para 26.) The
Plascon-Evans
rule
has been emphatically endorsed by the Constitutional
Court. See for example
President of the Republic of South
Africa & others v M & G Media Ltd
2012 (2) SA 50
(CC);
[2011] ZACC 32
para 34″
[7]
[2015] 36 ILJ 3094 (LC)
[8]
[2009]
4 BLLR 331 (LC)
[9]
Bernard
v Kannaland Municipality & others Case Number C714/2016
[10]
Member
of the Executive Council for Education North-West Provincial
Government v Gradwell
[2012]
33 ILJ 2052 (LAC)
[11]
Which
provide that;
'The
principles of natural justice and fairness must be adhered to
notwithstanding criminal or civil action having been instituted.’
[12]
See
Mogothle
at
para [38], where Van Niekerk J observed that there is a –
“
.....
trend apparent in this court in which employers tend to regard
suspension as a legitimate measure of first resort to the
most
groundless of misconduct, or worse still, to view suspension as a
convenient mechanism to marginalise an employee who has
fallen from
favour.”
[13]
See footnote 10.
[14]
See
Gradwell
at para 28