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[2019] ZALCJHB 210
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Lepheane v Telkom SA SOC Ltd and Another (J1484/19) [2019] ZALCJHB 210 (4 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1484/19
In
the matter between:
MOEKETSI
LEPHEANE
Applicant
and
TELKOM
SA SOC LTD
EDWIN
NKWANA
First
Respondent
Second Respondent
Heard:
04 July 2019
Delivered: 04
July 2019
Edited: 07
August 2019
EX-TEMPORE
JUDGMENT
CELE,
J
Introduction
[1]
The
application before me is one brought in terms of section 158(1)(a) of
the Labour Relations Act
[1]
(LRA) where the applicant seeks to be granted an order cast in the
following terms:
“
1.
Dispensing with the forms and service period provided for in the
rules of the court
and treating this application as one of urgency in
terms of rule 8.
2.
A
final order declaring the ongoing precautionary suspension of the
applicant to be unlawful and that he be permitted to return
to work.
3.
Cost
to be paid by the first and second respondent jointly and severally,
the one paying the others to be absolved who opposes this
relief
sought by the applicant on a punitive scale as between
attorney-and-own-client.
4.
Further, an alternate
relief as the court may deem appropriate or fit.”
[2]
The
application is opposed by the respondents in these proceedings. The
applicant is currently employed by the first respondent
as a Group
Head: Road and Transport. His contract of employment
incorporates a disciplinary procedure, collective agreement
entered
into between the South African Local Government Association, IMATU
and SAMWU enforceable for the period 1 February 2018
to 31 January
2023
( the collective agreement).
[3]
In
terms of clause 7.4 of that collective agreement, the following
appears:
“
The
disciplinary hearing shall commence as soon as reasonably possible,
but not later than three months from the date of the municipal
manager’s or the authorised representative’s decision to
institute disciplinary proceedings.”
[4]
This
clause must be read together with clause 16.4 which reads:
“
The
suspension or utilisation of employees in another capacity shall be
for a fixed and predetermined period and shall not exceed
the period
of three months from the date that the municipal manager or his
authorised representative is satisfied that there is
a
prima
facie
case that an act of misconduct
has been committed. However, where circumstances prohibit the
conclusion of disciplinary proceedings
within the aforestated
timeframes, such suspension or utilisation in another capacity can be
extended for a further three months’
period.”
[5]
The
applicant received a notice of suspension pending allegations of
financial misconduct from the office of the city manager on
22
November 2018. He was called upon to give reasons why he should
not be suspended and barred from the premises until investigations
were finalised. He only responded on 26 November 2018, by which
time he had already been put on suspension with effect from
22
November 2018. Therefore, the reasons he gave did not materialise in
the employer revisiting its decision to suspend him and
uplifting the
suspension. So the suspension took effect from 22 November 2018 and
was to last for three months.
[6]
The
suspension ordinarily would have lapsed on 22 February 2019. This
suspension was, however, not extended. On 26 February 2019
attorneys
for the applicant directed correspondence to the first respondent,
asking what was happening and, if needed be, why the
suspension was
not extended. The employer advised that the 90 days’
period, that is three months that had run from
November, had lapsed.
What effectively then happened is that the suspension was further
extended from February which suspension
would have gone from February
up to May 2019.
[7]
At
the time when the first suspension lapsed, the employee did not
present himself at work. That is why then his attorney apparently,
believing that he would not be accepted at work, decided to write the
letter to the employer and there was a further extension
of the
suspension. Apparently the employer had problems in finalising
investigations so that a firm decision could be taken to
charge the
employee. There was a further extension of suspension and this was
done in June this year. I think it took effect
from 12 June
2019. Again at the expiry of the second extension, the employee
did not present himself at work. Letters
were on the contrary
written by his attorneys.
[8]
What
the applicant has then done is to approach this court on urgent
basis, seeking to set aside this extension of suspension on
the basis
that the extension runs contrary to the collective agreement and
therefore the extension is unlawful. In the meantime,
what has
happened is that the applicant has referred a dispute of unfair
suspension in terms of section 186 (that is unfair labour
practice)
for consideration. I believe that matter is still pending.
[9]
The
respondent opposes this matter, firstly, on the basis that the Court
is being invited here to interpret the clauses of the collective
agreement and that this Court has no jurisdiction so to do, because
that falls squarely on the powers of a bargaining council,
if there
is one, or to the Commission for Conciliation, Mediation and
Arbitration (CCMA). The second objection is that this
matter
has not been demonstrated to be urgent, because the letter of further
suspension was received by the employee on 12 June
2019 and that this
application was filed some two weeks later, it being filed on 1 July
2019.
[10]
I
have been referred to some decisions of this court, one of which was
by Judge Whitcher, which I now am told is subject to an appeal
and
therefore I may not allow myself to be guided by it. In considering
this application, I bear in mind that it is not within
the purview of
the Labour Court to interpret a collective agreement. It would appear
that for me to grant the order sought I do
need to interpret the
collective agreement; however, the applicant contends in this
application that I would need to interpret
the collective agreement.
[11]
The
judgment by Whitcher J involves the interpretation of clause 16.4 of
the same collective agreement. I take the view, as
already
alluded to, that it is not within the purview or the powers of the
Labour Court to interpret the collective agreement.
The applicant
could easily refer that matter to a bargaining council or the CCMA.
Certainly the applicant has already referred
an unfair labour
practice dispute relating to suspension.
[12]
The
question I ask myself is whether that would not grant him substantial
relief, because that institution would have the power
to decide on
the unfairness of the suspension; and in considering that, the
commissioner would have the power to order the upliftment
of the
suspension, notwithstanding the fact that the commissioner will be
dealing with the unfairness and not unlawfulness as is
sought to be
done by the applicant in the present case. In my view, the
applicant has therefore substantial relief available
to him.
[13]
In
relation to the question of urgency, he has waited for a two weeks’
period. In his founding papers he did not deal
explicitly with
urgency. He merely referred to irreparable harm that he stands to
suffer. I now have to check whether that irreparable
harm could
possibly encompass or include some sense of urgency. He says
the following in his papers:
“
7.1.
I respectfully submit that from the context of the affidavit, it is
clear that the first respondent
is acting unlawfully as it is
respectfully submitted that it is unlawful conduct of the first and
second respondents; are not prohibited.
The applicant will suffer
irreparable harm if that is not prohibited.
7.2.
It is further respectfully submitted that I have at least a
prima
facie
right in terms of clause 7.3, 7.4 and 16 of the collective
agreement.
7.3.
It is respectfully submitted that if the order is not granted, I will
suffer irreparable harm
if the first and second respondent are
allowed to abuse and breach the collective agreement which is a
result of a collective bargaining.
7.4
I shall further suffer irreparable harm in that my employment
opportunities are severely
prejudiced because of the fact that I was
removed from my position for a period of approximately 10 months.
7.5
It is thus respectfully submitted that I made out a case that I
suffer irreparable harm
if the relief is not granted.”
[14]
I
do not quite understand what irreparable harm he stands to suffer,
except the lost opportunities that were to progress during
that
period. But beyond that, these are merely bold statements of
irreparable harm having to be suffered by him. He received
the
salary as he is on suspension and he knows that he stands to be
charged, because I am told that there is now a provisional
report
pending. And perhaps whilst he is on suspension, he might
benefit by taking good use of the time available to defend
himself
and to fight, making sure that he spends his energies in preparing
for the defence that he needs to lodge against the charges
once this
comes through.
[15]
So
I do not really think he has demonstrated any irreparable harm in
this respect. He has therefore not demonstrated to me why this
matter
is so urgent that it had to be heard or entertained during recess
period.
[16] In
the premises the following order is made:
Order
1. The
application is accordingly struck off the roll;
2. There is no
order as to costs.
____________________
H. Cele
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate N Ralikhavhana
Instructed
by: Madlela
Gwebu Mashamba Inc.
For
the Respondent:Mrs T Makamu of Maserumule Attorneys
[1]
Act 66 of 1995, as amended.