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[2019] ZALCJHB 106
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Cross-Border Road Transport Agency v National Transport Movement (J45/2019) [2019] ZALCJHB 106 (3 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 45/2019
In
the matter between:
CROSS-BORDER
ROAD TRANSPORT AGENCY
Applicant
and
NATIONAL
TRANSPORT MOVEMENT
Respondent
Heard
:
18 April 2019
Delivered
:
3 May 2019
Summary:
Return date of urgent application to declare strike action
unprotected. Rule
nisi
discharged.
JUDGMENT
PRINSLOO,
J
Introduction:
[1]
On 16 January 2019, this Court (per
Moshoana, J) granted the Applicant an interim interdict declaring the
strike action that was
scheduled to commence on 17 January 2019
unprotected and the Respondent’s members were interdicted and
restrained from participating
in the said strike action.
[2]
On 16 January 2019, the matter was
unopposed and the return date was set for 18 April 2019, when the
matter came before me. The
Respondent (NTM) filed an answering
affidavit, to which the Applicant filed a reply.
Brief
history:
[3]
The
Applicant’s Chief Executive Officer (CEO), Mr Khumalo, was
appointed to this position by the Minister of Transport (the
Minister) in terms of the provisions of the Cross-Border Road
Transport Act
[1]
.
[4]
On 15 November 2018, the NTM addressed a
letter to Mr Ramathe, the Chairman of the Applicant’s Board,
wherein they demanded
that the CEO be placed on precautionary
suspension by 16 November 2018, pending an investigation into matters
that were set out
in the letter of demand. The allegations made
against the CEO were recorded in the letter as follows:
‘
1.
Gross misconduct in relation to fruitless and wasteful expenditure
deriving from the
trips undertaken by the CEO at the expense of the
CBRTA, which trips did not benefit the entity in any manner;
2.
Irregular creation of strategic manager,
support services for Mr Victor Dladla in the CEO’s office after
he was demoted at
the Regional Manager’s office and the
subsequent promotion of Mr Dladla to a senior manager’s
position in operators
relations department without advertising the
position and/or following the recruitment and selection processes;
3.
Maladministration in that the CEO appoint
his former PA, Ms Nandipha Mboxela at a higher remuneration package
as compared to her
counterparts, who possess higher qualifications
than her;
4.
Misrepresentation and/or dishonesty in that
the CEO had irregularly rated himself and recommended a performance
bonus for himself;
5.
As well as allegation against the CEO as
set out in the Auditor General’s report.’
[5]
The NTM demanded that the CEO be placed on
precautionary suspension pending an investigation into the aforesaid
matters, failing
which a dispute would be referred and preparation
would be made for strike action pertaining to the aforesaid matters.
[6]
On 20 November 2018, the NTM referred a
mutual interest dispute to the Commission for Conciliation, Mediation
and Arbitration (CCMA)
and the facts of the dispute were recorded as
being that the Applicant refused to suspend and investigate the CEO.
The matter was
conciliated on 8 January 2019 and as it remained
unresolved, a certificate of outcome was issued, indicating that the
NTM may resort
to strike action.
[7]
On 14 January 2019, the NTM issued a strike
notice wherein the Applicant was given notice of the strike action
that was scheduled
to commence on 17 January 2019. The strike action
was due to the Applicant’s refusal to suspend and investigate
the CEO for
various acts of disciplinary infractions brought to the
attention of the Chairman of the Applicant’s Board.
[8]
On 16 January 2019, the Applicant
approached this Court on an urgent basis for an order to declare the
strike action unprotected
and to interdict the NTM and its members
from participating in the strike.
The
urgent application:
[9]
The
Applicant approached this Court on an urgent basis and submitted that
the intended strike action would be unprotected as contemplated
in
section 68 of the Labour Relations Act
[2]
(LRA) on three grounds.
9.1
Firstly, the CEO was appointed by the Minister and the power to
suspend him, vests in the Minister and the
Applicant is not empowered
to suspend the CEO, wherefore it is unable to meet this demand. On
the return date, the Applicant indicated
that it was not persisting
with this ground and that it needs no further consideration.
9.2
Secondly, the demand to suspend the CEO is
not a lawful demand since it is for the immediate suspension of the
CEO and does not
contemplate proper processes and grounds for such
suspension.
9.3
Thirdly, the demand for an investigation of
the CEO has already been complied with, hence the demand is unlawful.
[10]
It is evident that throughout and since November 2018, the demand
made by the NTM related to the suspension
and investigation of the
CEO. I will deal with the two grounds on which it is alleged that the
strike is unprotected in turn.
Suspension
of the CEO
The
Applicant’s case
[11]
The Applicant’s case is that the demand for the suspension of
the CEO is unlawful. The Applicant
took issue with the fact that it
was afforded an extremely truncated period of time to comply with the
demand to suspend the CEO
as the matters raised by the NTM require
consideration before the CEO can be suspended.
[12]
Furthermore, the CEO must be presented with an opportunity to respond
to a possible intention to suspend
him, with consideration of his
representations, before a fair and lawful suspension could be
implemented. The truncated period
indicated by the NTM is indicative
of the fact that the demand is not for a lawful suspension and the
manner in which the demand
is framed, indicates that the NTM is not
demanding a process that may lead to a suspension, but a suspension
itself.
[13]
A suspension pending an investigation is only called for in the event
that an employee is likely to
interfere with the investigation or
with the evidence to assist the investigation. There must also be
prima facie
evidence of wrongdoing before an employee could be
suspended pending an investigation. The NTM has failed to present
such
prima facie
evidence of wrongdoing, despite being called
upon to do so.
[14]
The only thing that would satisfy the NTM is the actual suspension of
the CEO and not a lawful suspension.
The
NTM’s case
[15]
The NTM in its opposing affidavit reiterated the alleged acts of
misconduct committed by the CEO and
persisted with the view that it
was entitled to pursue the demand that the CEO be placed on
precautionary suspension and be investigated
for misconduct. The NTM
justified the truncated period afforded to the Applicant by stating
that it was due to the severity of
the allegations against the CEO,
which in the main pertained to gross violation of the Public Finance
Management Act
[3]
(PFMA) by
undertaking fruitless trips despite the financial position of the
Applicant, alleged corruption and gross violation of
the recruitment
and selection processes.
[16]
The NTM contended that the CEO is intimidating and threatening the
prospective witnesses and should
therefore be suspended.
Analysis
[17]
It is evident that the NTM’s demand is for the immediate
suspension and subsequent investigation
of the CEO, without any
provision for processes preceding such suspension or any indication
that the suspension demanded be lawfully
effected. It is trite that a
suspension has to serve a legitimate purpose and cannot be effected
without such a legitimate purpose
as that would in all probability
render the suspension unfair and may expose an employer to litigation
relating to an unfair suspension.
[18]
Mr Beaton for the Applicant submitted in his heads of argument that
the demand is unlawful firstly
for reasons related to the substantive
fairness of the demand namely that a suspension pending an
investigation is only called
for in the event that an employee is
likely to interfere with the investigation and where there is
prima
facie
evidence of wrongdoing.
[19]
On the procedural side, the demand does not enable the Applicant to
effect a fair suspension by affording
the CEO a fair opportunity to
comment on the allegations of intimidation. In the founding
affidavit, the Applicant also expressed
concern for not affording the
CEO an opportunity to respond to a possible intention to suspend him.
[20]
Mr Beaton referred to the matter of
Passenger
Rail Agency of South Africa v SA Transport and Allied Workers Union
and Others
[4]
where
SATAWU demanded
inter
alia
for
the suspension of the CEO and for a forensic investigation to be
conducted to probe possible acts of misconduct. SATAWU had
not
unequivocally demanded only a fair suspension and the Court held
that:
‘
Looked
at from a different perspective, what would the employer have needed
to do to satisfy this demand? It is difficult to escape
the
conclusion that the only thing that would have satisfied the demand
was the actual suspension of the individuals in question,
even if the
union accepted the employer had to follow a fair process. In this
respect, the facts of this matter are distinguishable
from those in
City of Johannesburg Metropolitan
Municipality v SAMWU & Others (2009) 30 ILJ 2064;
[2009] 5 BLLR
431
(LC),
in which the court noted
that: “in these proceedings, the suspension demands, originally
tabled in broad terms, have been
clarified by the union in its
answering affidavit. Its members seek to strike in support of a
demand that the employees concerned
be fairly suspended.’
[21]
The Applicant’s case in short is that, as the NTM has not
provided a valid, justifiable reason
for the suspension of the CEO
and as the demand is not for the suspension to be effected fairly,
the demand is unlawful. Suspension
can only be implemented after
following due process and on good cause.
[22]
In
Long
v South African Breweries (Pty) Ltd and Others
[5]
,
the
Constitutional Court recently considered the issue of precautionary
suspension and held that:
‘
In
respect of the merits, the Labour Court’s finding that an
employer is not required to give an employee an opportunity to
make
representations prior to a precautionary suspension, cannot be
faulted. As the Labour Court correctly stated, the suspension
imposed
on the applicant was a precautionary measure, not a disciplinary one.
This is supported by
Mogale, Mashego
and
Gradwell
.
Consequently, the requirements relating to fair disciplinary action
under the LRA cannot find application. Where the suspension
is
precautionary and not punitive, there is no requirement to afford the
employee an opportunity to make representations.
In
determining whether the precautionary suspension was permissible, the
Labour Court reasoned that the fairness of the suspension
is
determined by assessing first, whether there is a fair reason for
suspension and secondly, whether it prejudices the employee.
The
finding that the suspension was for a fair reason, namely for an
investigation to take place, cannot be faulted. Generally
where the
suspension is on full pay, cognisable prejudice will be ameliorated.
The Labour Court’s finding that the suspension
was
precautionary and did not materially prejudice the applicant, even if
there was no opportunity for pre-suspension representations,
is
sound’. (Footnotes omitted)
[23]
It is evident from
Long
[6]
that
the Constitutional Court has held that in the event of a
precautionary suspension, an employer is not required to give an
employee an opportunity to make representations prior to his/ her
suspension. Although
Long
was not
in the context of a strike, in principle it has taken a step away
from
PRASA
[7]
where
it was held that the demand for suspension must be a demand for a
fair suspension.
In
casu,
‘fair’
is affording the CEO a fair opportunity to comment on the allegations
and to respond to a possible intention
to suspend him. This is not a
requirement in a precautionary suspension.
[24]
There is no merit in the Applicant’s case that a suspension can
only be implemented after following
due process. It follows that the
NTM’s demand that the CEO be placed on precautionary suspension
pending investigation into
matters that were set out in the letter of
demand of 15 November 2018, is not unlawful for the reason that the
demand does not
provide for a fair procedure in suspending the CEO.
[25]
On the other hand, there is merit in the Applicant’s case that
a suspension can only be implemented
on good cause and that it has to
be substantively fair. The NTM has not indicated the reason why the
CEO is to be suspended and
to make a demand to suspend the CEO
without disclosing the substantive grounds for suspension, is not
good enough.
[26]
The NTM was invited to disclose the substantive reason to suspend the
CEO and even after the issue
was raised in the Court papers, the NTM
did no more than make a bald and unsubstantiated allegation as to why
the CEO should be
suspended. More is needed and the NTM’s
demand fell hopelessly short of disclosing a reason for the CEO’s
suspension.
[27]
Having said that, I have considered that in
Long
[8]
it was held that precautionary suspension was permissible when there
is a fair reason for suspension and where it was for an investigation
to take place, the suspension was for a fair reason.
[28]
In my view this falls within the NTM’s demand, namely that the
CEO be placed on precautionary
suspension pending an investigation
and the demand that the CEO be suspended, is not unlawful, provided
that the demand for the
investigation to be conducted, is a lawful
one. This is the next issue to be considered. Had it not been for the
fact that part
of the NTM’s demand was for an investigation to
be conducted, the decision of this Court could have been different.
This
judgment is not to be understood as authority for a demand for
suspension, without disclosing a fair reason for suspension, to
constitute a lawful demand for purposes of strike action.
Investigation
already embarked upon
The
Applicant’s case:
[29]
The Applicant’s case is that an investigation into the
allegations made by the NTM has been conducted
and that the demand
for an investigation has thus been complied with and that there can
be no strike on this demand.
[30]
The Applicant’s Audit and Risk Committee investigated various
allegations against the CEO and
the outcome report was presented to
the Applicant’s Board during October 2018. The Board had
resolved to forward the report
to the Minister for consideration and
the Minister has not yet made a decision in respect of the report.
The
NTM’s case
[31]
The NTM disputed that its demands were responded to and stated that
the allegations against the CEO
pertained to serious allegations of
misconduct (as I have already alluded to supra) and these issues were
raised with the Applicant
in November 2018. The issues raised have
still not been investigated.
[32]
The NTM disputed that the allegations against the CEO were covered or
that they were part of the investigation
already conducted and in
respect of which a report was issued dated 17 April 2018.
Analysis
[33]
The Applicant has not attached the full investigation report to its
papers before this Court, but appended
only the covering page of the
report dated 17 April 2018 in support for its contention that an
investigation had indeed been conducted.
It is evident from the
covering letter that the report was a preliminary review into
allegations of acts of corruption, abuse of
power by the CEO, tender
irregularities and potential fruitless and wasteful expenditure. It
is not evident from the single page
covering letter what issues and
allegations were investigated and it is impossible to determine from
the document placed before
this Court, whether the issues raised by
the NTM had indeed been covered and investigated.
[34]
It is significant that on the Applicant’s own version, the
Audit and Risk Committee investigated
various allegations concerning
the CEO, including
some
of the issued raised by the NTM. On
this version alone, it is evident that only ‘some’ of the
issues raised by the
NTM were indeed investigated and for this
reason, it cannot be said that the demand has been complied with.
[35]
The demand calling for an investigation is a lawful one that had not
been complied with as only ‘some’
issues raised by the
NTM had been investigated.
[36]
In argument Mr Beaton conceded that some of the NTM’s demands
in respect of the investigation
to be conducted, remain valid
demands. On this ground alone, the strike action remains lawful and
thus protected.
Costs
[37]
In awarding costs, this Court has a discretion, guided by the
requirements of law and fairness. In
my view the interest of justice
will be best served by making no order as to costs, having regard to
the ongoing collective bargaining
relationship between the parties
and the prospect of prejudice to that relationship should an order
for costs be made.
[38]
In the premises I make the following order:
Order
1.
The
rule nisi
issued on 16 January 2019 is discharged;
2.
There is no order as to costs.
_______________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate R G Beaton SC
Instructed
by:
Savage Jooste & Adams Inc Attorneys
For
the Respondent:
Mr M Gumede, NTM official
[1]
Act
4 of 1998.
[2]
Act
66 of 1995 as amended.
[3]
Act 1 of 1999.
[4]
(2012)
33 ILJ 2659 (LC) at para 10.
[5]
[2018] ZACC 7
at paras 23 -25.
[6]
Ibid.
[7]
Supra
n
4.
[8]
Id
n 5.