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[2018] ZALCJHB 218
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Minister of Correctional Services v General Public Services Sectoral Bargaining Council and Others (J1525/15) [2018] ZALCJHB 218 (4 July 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J1525/15
In
the matter between:
MINISTER
OF CORRECTIONAL SERVICES
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL BARGAINING COUNCIL
First
Respondent
MPE
NGCOSANE (
N.O.
)
Second
Respondent
M
C MOTSAPI
Third
Respondent
Heard
:
5 September 2017
Delivered
:
4 July 2018
Summary:
(Review – Rule 11 – precautionary transfer)
JUDGMENT
LAGRANGE
J
Background
[1]
This matter was heard on 5 September 2017. Subsequent to the
hearing, the original file was stolen together with the other
contents of my briefcase when my vehicle was broken into. Once it
became evident that the file was missing, the parties reconstructed
the file. The court is indebted to the parties for their assistance
in this regard.
[2]
The applicant, the Minister of Correctional Services, seeks to review
and set aside an arbitration award by the second respondent
(‘the
arbitrator’) in favour of the first respondent, Deputy Director
M C Motsapi (‘Motsapi’). He
found that Motsapi’s
precautionary transfer from his former position as Controller at
Mangaung Correctional Centre to Grootvlei
Management Area in November
2013, as an alternative to suspension, pending finalisation of an
investigation was contrary to the
Department of Correctional Services
Disciplinary Procedure (‘the DCS procedure’) and an
unfair labour practice.
At the time of the arbitration award, 17
months after the transfer, Motsapi remained on suspension. The
arbitrator awarded Motsapi
three months’ remuneration as
compensation.
[3]
The applicant applied to review the award and Motsapi has applied to
dismiss the review and make the award an order of court.
Chronology
of the review application and the rule 11 application
[4]
The award was issued on 17 April 2015, but the review application was
launched on or about 15 August 2015, approximately two
and a half
months’ late. The review application included an application
for the condonation of the late filing of the application.
[5]
The Deputy Director Sanctions: Directorate Code Enforcement (‘the
director’) at the applicant’s head office
recommended the
institution of review proceedings on 5 May 2015. Counsel was briefed
on the matter three weeks later on 26 May
2015, by which stage there
were only a few days left to file the review application timeously.
The applicant could only consult
with counsel on 12 June 2015. At
that consultation expressed the view that the award was not
reviewable but he would furnish an
opinion. By that stage, the
six-week period for launching the application had expired a fortnight
previously. The applicant did
not communicate with the third
respondent to request an indulgence for an extension of time.
[6]
The opinion was furnished on 24 June 2015 confirming counsel’s
prima facie
view on the merits. The director was not satisfied
with the opinion and another council was briefed on 1 July 2015 but
the counsel
in question was on leave and only received the brief on
15 July 2015. Counsel requested the bundle of documents which
appeared
to have been used in the arbitration, which the applicant
did not have in its possession. Nonetheless, on 4 August 2015, it was
decided to proceed with drafting the review application in the
absence of the documents so as not to prolong the delay. 11 days
later the review was finally filed.
[7]
Apart from this delay, there were further, lengthier delays in
finalising the review application, as summarised below.
[8]
By mid-2016, nothing further appeared to have been done to finalise
the review. By this stage, in terms of paragraphs 11.2.2
and 11.2.3
of the Labour Court Practice Manual, the review application was
already deemed to have been withdrawn in mid-October
2015. In the
meantime, Motsapi took steps to enforce the award by having a writ of
execution issued towards the end of May 2016.
It appears that this
belatedly galvanised the applicant to do something about the
finalisation of the review because, on 2 June
2016, the bargaining
council lodged the record of the proceedings with the registrar.
On 30 June 2016, the applicant succeeded
in obtaining a stay of the
writ pending the finalisation of the review application, but no order
of costs was made.
[9]
For reasons which are unclear, the applicant claims that it was only
able to locate the record at court sometime in September
2016 and the
supplementary affidavit was only filed on 28 September 2016. No
explanation was provided why it took so long to locate
the record at
the court, which had been lodged with the registrar by the bargaining
council on 2 June 2016. Motsapi filed his replying
affidavit on 13
October 2016.
[10]
In February 2017, Motsapi asked for an update on progress in the
application from the applicant and warned that an application
would
be brought to have the review application dismissed,
inter alia
for lack of prosecution. Motsapi was then advised by State attorney
that the matter would be set down within a month and she would
revert
by mid-April. No further response was received from the State
attorney and no further steps were taken by the applicant
to enrol
the matter. The applicant also never applied for condonation for its
non-compliance with the provisions of the practice
manual or to
reinstate the review application, which was deemed to be withdrawn.
[11]
Motsapi then launched his application to dismiss the review
application on 12 July 2017.
[12]
The applicant only opposed the dismissal application on 4 September
2017. The applicant claims that prior to obtaining knowledge
of the
dismissal application, it was satisfied since September 2016 that the
matter was proceeding and that everything necessary
was being done to
prosecute the matter. The applicant also took comfort in the
knowledge that the Labour Court roll is inundated
and that it
normally took a substantial period of time to set down review
applications. It appears that the applicant was so confident
that all
was well that there was no evidence of a single communication between
the applicant and the state attorney between the
filing of the
supplementary affidavit the end of September 2016 and the filing of
the dismissal application in July 2017, a period
of some nine months.
[13]
The further delay in responding to the rule 11 application is
explained by the personal incapacity of the state attorney who
had
been handling the matter, which necessitated the appointment of
another attorney in the state attorney’s office to take
over
the case.
The
substantive merits
The
arbitration award
[14]
As mentioned above, Motsapi was transferred to another post in the
department, as an alternative to suspension, pending finalisation
of
an investigation. However, when the matter was arbitrated, he
remained in the transferred post 17 months later.
[15]
It is not necessary to traverse the arbitration award in detail save
to mention the following important aspects of the arbitrator’s
findings:
15.1 The applicant was entitled to
place Motsapi in an alternative position in terms of clause 7.2 of
the DCS disciplinary code
and Resolution 1 of 2006 but such a
precautionary transfer was limited to a maximum of three months,
whereas Motsapi had been in
the position for more than a year.
15.2 The purpose of such a transfer
was to make sure, amongst other things,that an employee does not
interfere with the investigation
underway.
15.3 Clause 7.2.3 of the disciplinary
code provides that an employer must hold a disciplinary enquiry
“within 60 calendar
days if an employee is suspended or
transferred as a precautionary measure” and if disciplinary
proceedings have not been
instituted within that time the suspended
employee may return to work.
15.4 No basis was provided by the
applicant for extending the period of the precautionary transfer
beyond three months.
[16]
The arbitrator decided that the failure to transfer Motsapi back to
his position was an unfair labour practice and awarded
him three
months’ salary as compensation.
Grounds of review
[17]
The applicant raised three grounds of review. Firstly, the arbitrator
failed to distinguish between an employee placed on a
precautionary
suspension and an employee who is transferred as a precautionary
measure, even though the disciplinary code draws
such a distinction.
Secondly, the applicant complains that the arbitrator irregularly
decided the matter without hearing evidence
and instead relied on the
written submissions of the parties and the documentation. Thirdly,
the award of compensation of three
months remuneration amounting to R
164 020, 50 was made without any evidence of any humiliation or
damages being suffered
by Motsapi.
Evaluation
of the condonation application
The explanation for the delay
[18]
The period of the delay is nearly double the period that it should
have taken the applicant to file the review application.
As such, it
is an extensive delay.
[19]
I am not satisfied that the delay of two and a half months’ in
launching the review is fully explained. Even allowing
for the fact
that it took three weeks before a decision was made whether to
institute review proceedings, counsel was briefed without
apparently
ascertaining beforehand if that counsel would be able to draft the
application timeously. Also, once the deadline for
filing the
application had expired, at no stage during the ensuing period of
delay did the applicant make any attempt to approach
Motsapi to
explain that it was taking steps to institute the review application
and ask for an indulgence. The applicant should
have at least advised
that it was seeking an opinion of counsel before deciding whether or
not to proceed. Having obtained the
opinion, but being dissatisfied
with it, the applicant then briefed another counsel. Before briefing
counsel, it should have ascertained
from him that he could not even
start looking at the matter for another fortnight. It still took
another month to file the application
on the same information which
had been available to the applicant since the beginning.
Prospects
of success
[20]
In relation to the failure of the parties to lead evidence, as such,
it is common cause between the parties that they had agreed
to submit
heads of argument and that a bundle of documents relevant to the
issues had been handed in by consent. The applicant
also accepted
that Motsapi had been on a precautionary transfer for approximately
one year pending an investigation into his alleged
misconduct, but
averred that the investigation was not yet finalised at the time of
the arbitration, which Motsapi apparently disputes.
The
applicant contends that there were disputes of fact and denies that
it was competent of the parties to agree to deal
with the matter by
way of submissions.
[21]
Apart from the fact that Motsapi had claimed that he suffered
financial loss and that the parties do not appear to be in agreement
about the conclusion of the investigation, it is difficult to
understand what material disputed facts the applicant could have
been
referring to. It is also noteworthy, that the main reason why the
applicant felt compelled to persist with the application
concerned
its first ground of review relating to the interpretation of the
disciplinary code. It was the applicant’s dissatisfaction
with
counsel’s opinion on this aspect of the merits of the case
which prompted it to pursue the matter further. Nonetheless,
there is
some merit in the point that it is unclear on what basis the
arbitrator determined that three months’ compensation
was
appropriate, apart from general principles. In this regard, it also
appears that a factor which played a role in the arbitrator’s
thinking was that the investigation on which the transfer was
predicated might in fact have been complete, whereas this was clearly
a matter in dispute and should have either been clarified in evidence
or being clarified in a stated case. I am mindful of
the fact
that both the Labour Court and the Labour Appeal Court have taken a
dim view of parties who submit a case to arbitration
and then argue
the merits based simply on a bundle of documents, the status of which
is uncertain. See in this regard
SA Social Security Agency v
National Education Health & Allied Workers Union on behalf of
Punzi & Others
(2015) 36 ILJ 2345 (LC)
,
Department
of Home Affairs v General Public Service Sectoral Bargaining Council
& others
(2018) 39 ILJ 248 (LC)
, and
Arends
& others v SA Local Government Bargaining Council & others
(2015) 36 ILJ 1200 (LAC)
.
[22]
In relation to the main ground of review, the principal complaint of
the applicant is that, it interprets the provisions of
the code
dealing with precautionary transfers and precautionary suspensions
differently to the arbitrator and it contends that
the arbitrator was
unreasonable in regarding the two precautionary measures as having
identical consequences in terms of the code.
The relevant provisions
of the code read:
“
7.2.1 The employer may suspend
an employee on full pay or transfer the employee if
7.2.1.1
The employee is alleged to have committed a serious offence; and
7.2.1.2
The employer believes that the presence of an employee at the
workplace may jeopardise any investigation into the alleged
misconduct or endanger the well-being or safety of any person or
state property.
7.2.2 A suspension of this kind is a
precautionary measure that does not constitute a judgement. An
employee shall not be suspended
without salary or normal benefits.
Benefits shall not include overtime pay or danger and/or special
danger allowances and.
7.2.3 If an employee
is suspended
or transferred
as a precautionary measure
, the
employer must hold a disciplinary hearing within 60 calendar days,
depending on the complexity of the matter and the length
of the
investigation. If after the 60 days of suspension the disciplinary
hearing has not been instituted
the suspended
employee may
return to work. Depending on the seriousness of the alleged
misconduct, the employer may extend the suspension with
a further 30
days. If after such period the disciplinary hearing has not been
instituted the employee must return to work. If the
disciplinary
hearing has been instituted the employer shall determine when the
employee can return to work.
(emphasis
added)
[23]
In essence, the applicant contends, in reliance on the emphasised
portions above, that clause 7.2.3 of the code only provided
that an
employee who has been suspended may return to work. By implication,
this would mean that an employee placed on a precautionary
transfer
for the same reason that they might have been suspended could be
transferred on an indefinite basis even if the disciplinary
hearing
was not convened within the three month period applicable to
suspended employees. The arbitrator clearly did not consider
that
such a distinction in treatment was intended by the section and was
of the view that Motsapi, as an employee on precautionary
transfer
for more than three months, was also entitled to return to his former
position. The arbitrator’s interpretation
is not an entirely
unreasonable one, given the purpose of the precautionary measure and
the intention of the section that the disciplinary
hearing should not
be unduly delayed. That is not to say that another interpretation
might not be possible, but it is sufficient
that his interpretation
was not one that no reasonable arbitrator could have arrived at.
[24]
The only remaining aspect pertaining to the prospects of success is
whether it is possible for the arbitrator to have awarded
three
months’ remuneration as compensation in the absence of evidence
of humiliation or financial loss on the part of Motsapi.
I have
already mentioned above that the determination of this issue without
understanding the evidentiary basis on which it was
made is
problematic.
[25]
In the light of the above, notwithstanding the poor explanation for
the initial delay in launching the review application,
I am inclined
to grant condonation for the late filing of the application, mainly
on the basis that there are some factual issues
bearing on the award
where the evidentiary basis therefor is unclear or where there is an
issue in dispute, in the absence of a
stated case along the lines
described in the judgements mentioned above.
The
failure to comply with subsequent time periods for finalising the
review.
[26]
The more problematic part of the applicant’s explanation for
its dilatoriness in prosecuting the review application is
what
happened after supplementary affidavit was filed.
[27]
At that stage, the applicant itself was aware that counsel did not
have a full record of the arbitration and that this was
still
outstanding when the founding affidavit was filed. There is no
evidence that it made any effort to enquire if that shortcoming
had
been rectified in the whole period from the end of September until
the writ of execution was served in late May 2016, several
months
later. It was aware that even after the successful application to
stay the writ on 30 June 2016, that it took four months
since the
record had been lodged by the bargaining council at the beginning of
June to locate the record and to file the supplementary
affidavit.
[28]
Despite a significant history of delay in the prosecution of the
review, in which the pleadings had only been finalised a year
after
the review was filed, the applicant itself was content to leave the
matter to the State attorney. The applicant claims then
to have been
surprised to learn of the dismissal application on 7 August 2017.
Even though it should have been more diligent, it
does seem it was
not kept in the loop by the state attorney who was handling the
matter at the time. Having learnt belatedly of
the dismissal
application, the applicant was then hampered by the incapacity of the
state attorney who was handling the matter,
which necessitated fairly
delicate manoeuvring to transfer the matter to another attorney in
the same office. This delayed the
filing of the opposing affidavit.
The applicant did tender the wasted costs of the Rule 11 application,
effectively acknowledging
that had the state attorney’s office
handled the matter acted as they should have, the Rule 11 application
would have been
unnecessary.
[29]
Were it not for the circumstances of the personal incapacitation of
the state attorney in question which appeared to explain
the
non-responsiveness of that office to the correspondence threatening
to bring the Rule 11 application, I would be less sympathetic
to the
further delays in this matter. However, the circumstances are
somewhat unusual and the applicant acknowledges its shortcomings
in
this regard.
[30]
All things considered, I accept that the subsequent delay in
enrolling the matter after pleadings had closed was not necessarily
a
delay which the applicant would have entirely anticipated and there
is no reason to believe it was aware of the correspondence
from
Motsapi’s attorneys in February 2017. I am also mindful of the
fact that Motsapi could also have requested the registrar
to enrol
the matter when it appeared that the applicant was not going to do
so. It also could have acted earlier when the record
was not
forthcoming in requiring the applicant to file the record or apply
for an extension of time under clause 11.2.3 of the
practice manual.
[31]
In light of the above, I believe that the review application should
not be dismissed. Nonetheless, and despite the tender of
costs for
the Rule 11 application itself, as a mark of the court’s
disapproval of the applicant’s dilatory prosecution
of the
review and particularly its casual disregard for the provisions of
the time periods in the practice manual - as if they
did not exist –
the applicant should also pay the costs of Motsapi’s opposition
to the condonation application, and
all costs should be on an
attorney own client scale.
Order
[32]
The late referral of the review application is condoned.
[33]
The Rule 11 application of the third respondent is dismissed.
[34]
The arbitration award of the second respondent dated 17 April 2015
issued under case number GPBC 1914/14 is reviewed and set
aside and
the matter is remitted back to the first respondent to convene a
fresh arbitration hearing within 30 days of receipt
of this
judgement.
[35]
The applicant must pay the costs of the third respondent in the rule
11 application and the condonation application on an attorney
own
client scale.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Mr.
T. Mokwayi for Phatshoane Henney Attorneys
RESPONDENT:
Adv.
P.C. Pio instructed by State Attorneys Pretoria