About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 226
|
|
Mokoena v Merafong Municipality and Others (J1788/19) [2019] ZALCJHB 226; (2020) 41 ILJ 234 (LC) (13 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1788/19
In the matter between:
MORAKANE
MOKOENA
Applicant
and
MERAFONG
MUNICIPALITY
First
Respondent
SPEAKER
OF THE MERAFONG MUNCIPALITY
Second Respondent
THE EXECUTIVE MAYOR OF
THE
MERAFONG
MUNICIPALITY Third
Respondent
Heard: 4 September 2019
Delivered: 13
September 2019
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant approached this Court on an
urgent basis essentially seeking an order to reverse her suspension
and to interdict the
First
Respondent (the Municipality) from taking any disciplinary steps
against her.
I will fully deal with
the relief that the Applicant seeks
infra.
[2]
The application is opposed by the
Respondents who took issue with urgency. I do not intend to deal with
the issue of urgency in
any detail as
this
Court has a discretion and I am inclined to deal with the matter
urgently, notwithstanding the objections raised by the Respondents.
Background
[3]
The Applicant was
employed by the Municipality as Municipal Manager on 1 November 2017
and she still holds that position. On 29
July 2019, the Applicant was
issued with a notice of intention to suspend. In the said notice,
certain allegations were made against
the Applicant
inter
alia,
relating
to her failure to include the ‘Handover Report’ and the
‘Credit Control Plan’ as part of the discussions
during
the strategic session held in December 2017 and the
non-implementation of the ‘Credit Control Plan’ and the
‘Financial Turn Around Priority Plan’.
[4]
The Applicant was
informed that the allegations of misconduct against her were of a
serious nature, that she occupies a senior position,
that she could
potentially influence employees and that her presence at the
workplace may jeopardize further investigations into
the allegations
of misconduct. The Municipality afforded the Applicant an opportunity
to make written submissions as to why she
should not be suspended in
accordance with Regulation 6 of the Local Government: Disciplinary
Regulations for Senior Managers (the
Regulations).
[5]
On 5 August 2019, the
Applicant made submissions regarding her intended suspension. The
Applicant submitted that the allegations
levelled against her do not
constitute acts of misconduct, but rather acts of sub-standard
performance and that Regulation 6 does
not contemplate precautionary
suspension in the case of sub-standard performance, wherefore her
suspension would be unlawful and
in breach of the Regulations.
[6]
On 12 August 2019,
the Municipality’s council resolved that the Applicant be
suspended and on the same day the Executive Mayor
issued a letter of
suspension to the Applicant. She was suspended with immediate effect
and with full pay and benefits.
[7]
On 15 August 2019,
the Applicant’s attorneys addressed a letter of demand to the
Municipality, stating that the Applicant’s
suspension was
unlawful for want of compliance with the Regulations in that there
were no acts of misconduct alleged, but rather
poor performance, that
precautionary suspension is not applicable in the event of poor
performance and that no further process
may take place until the
prescribed performance management procedures are complied with. The
Applicant insisted that she be placed
on a performance management
programme and only if that had been done, a performance hearing may
be held. The Applicant demanded
inter
alia,
that
her suspension be uplifted and that the allegations set out in the
notice of intention to suspend be dealt with as poor performance
rather than misconduct.
[8]
When the Applicant
did not receive a response to the aforesaid letter by 20 August 2019,
this urgent application was filed on 21
August 2019.
The relief sought
[9]
The Applicant seeks
the following relief on an urgent basis:
‘
1.
Ordering that the allegations made
against the Applicant in the letters of intended suspension as well
as the notice of suspension
dated 29 July and 12 August 2018
respectively be treated by the First Respondent, the Second
respondent (where relevant) and Third
Respondent, as allegations
pertaining to alleged poor performance due to incapacity;
2.
That the Applicant’s suspension is declared
unlawful and that her suspension is reviewed and set aside;
3.
That the First Respondent be ordered to permit the
Applicant to return to her position as Municipal Manager;
4.
To the extent that it has not taken place,
interdicting the Municipality from taking further steps which are
pursuant or related
to the procedures provided for dealing with
alleged misconduct in the Regulations, including the appointment of
an investigator,
the investigation being conducted by the
investigator, and the adoption of any report tabled at Council by the
investigator;
5.
To the extent that it has already taken place,
declaring unlawful, reviewing and setting aside any steps taken by
the Municipality,
subsequent to the Applicant’s suspension,
which are pursuant or related to the procedures provided for dealing
with alleged
misconduct in the Regulations, including the appointment
of an investigator, the investigation conducted by the investigator,
and
the adoption of any report tabled at Council by the investigator;
6.
Ordering that should the Respondents wish to
persist with addressing the allegations, they do so pursuant to the
procedures provided
for to deal with alleged poor performance due to
incapacity, as provided for in the Regulations.’
[10]
The
relief that the Applicant seeks is premised on the notion that she
should not be charged with misconduct, but rather that the
allegations levelled against her be treated as poor work performance
and that any process that may be followed, be treated as a
poor work
performance process instead of a disciplinary process. In my view,
the Applicant has to succeed with the relief sought
in prayer 2 of
the notice of motion, namely that the Respondent be ordered to treat
the
allegations made against her in the letter of intention to suspension
as well as the notice of suspension, as allegations pertaining
to
alleged poor performance due to incapacity, to succeed with any of
the remaining relief set out in prayers 3 – 7 of the
notice of
motion.
[11]
The point of departure should be the relief
sought in prayer 2 of the notice of motion.
[12]
The obvious question that leaps out is
whether this Court can order the Respondents to treat the allegations
against the Applicant
as poor work performance instead of misconduct.
Analysis
[13]
The Respondents raised a point
in
limine
in respect of jurisdiction and
submitted that this Court has no jurisdiction to adjudicate this
dispute at this stage as the dispute
is essentially an unfair labour
practice dispute where the Applicant alleges that the Respondents are
not entitled to suspend her
as a precautionary measure since her
alleged conduct is based on poor work performance. The unfairness of
a suspension is to be
adjudicated by way of arbitration proceedings.
[14]
The point
in
limine
is without merit as the
application before this Court is not one relating to an unfair labour
practice and the Applicant is not
challenging the fairness of her
suspension.
[15]
In my view the issue is this: The
Applicant’s sole complaint in respect of her precautionary
suspension is that, according
to her, the conduct complained about is
not misconduct but sub-standard or poor work performance and the
Regulations do not provide
for precautionary suspension in the event
of poor work performance. As her conduct relates to poor work
performance, the Respondents
are to follow the procedure for dealing
with sub-standard performance, as provided for in Chapter 3 of the
Regulations and they
should not follow a disciplinary process.
[16]
The Applicant does not dispute that the
Regulations provide for precautionary suspension in the event that it
is alleged that a
senior manager has committed an act of misconduct.
[17]
In her founding affidavit, the Applicant
addressed each of the allegations levelled against her in the letter
of intention to suspend
and her suspension letter and provided a
detailed response to each allegation, even attaching documents in
support of her explanation.
The Applicant’s case is that the
allegations levelled against her are not of a misconduct nature
wherefore misconduct procedures
and precautionary suspension are not
applicable and that she has the right to allegations of poor
performance being dealt with
as such.
[18]
In short, the Applicant’s case is
that if the matter proceeds as one of misconduct, there would be a
misdiagnosis.
[19]
On the other hand, the Respondents’
case is that they have made it clear that at this stage they regard
the Applicant’s
conduct as misconduct. The investigation into
the Applicant’s conduct is not yet finalised and therefore it
is premature
for the Applicant to allege that the conduct complained
of is in fact that of poor work performance instead of misconduct.
[20]
The Respondents submitted that the
Applicant has made herself guilty of dereliction of duty and that
there is compelling evidence
of a
prima
facie
case of serious misconduct
against her. The Respondents made averments in the answering
affidavit in support of their contention
that the Applicant
derelicted her duties and so forth, conduct constituting misconduct.
[21]
It is evident that
the
Applicant addressed the allegations levelled against her and in
answer, the Respondents made averments to support their position
in
respect of misconduct. This is clearly done to illustrate to this
Court from the Applicant’s perspective, that her conduct
is
poor performance and from the Respondents’ perspective, that it
is misconduct.
[22]
At this point the
allegations against the Applicant are the subject of an ongoing and
incomplete investigation process and not only
is this Court not
competent to express any view on the merit or otherwise of these
allegations based on what is contained in the
affidavits, it would
also be improper to do so. The parties want this Court to consider,
assess and evaluate the allegations, their
responses and submissions
and to make a finding as to whether those are allegations of poor
work performance or misconduct, which
would determine whether an
incapacity or disciplinary process is to follow.
[23]
As important as a proper categorization of
a dispute is, it is not the function of this Court to categorize the
dispute at this
stage. This Court is not the forum to determine or
decide the character or classification of allegations levelled by an
employer
against its employee or to dictate the process to be
followed, more so where an employer has elected to deal with the
allegations
as misconduct. If the employer’s decision or
election is later shown to be wrong, it would face the music at an
appropriate
time.
[24]
It is trite and has been accepted by this
Court that an employer has the right to discipline its employees, of
course in a lawful
and fair manner. In fact, the disciplining of
employees is the duty and the prerogative of the employer and an
employer remains
dominis litis
in
deciding whether an employee is to be charged with misconduct and if
so, what the nature of the charges would be.
[25]
In
the event of a dismissal, the employer is bound by the election it
has made, as was confirmed in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[1]
where
the Labour Appeal Court (LAC) held that:
‘
It
is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the
fairness
or otherwise of the dismissal of an employee must be determined
on the basis of the reasons for dismissal which the
employer gave at
the time of the dismissal.’
[26]
Having said that, the Municipality, as an
employer, is entitled to invoke the provisions of the Regulations and
to suspend senior
managers on a precautionary basis, if it is alleged
that the senior manager has committed an act of misconduct and where
the other
requirements in the Regulations have been met.
[27]
In casu,
the
Applicant is not attacking the fact that the Municipality may suspend
her on allegations of misconduct, but she is attacking
the
Municipality’s prerogative to decide whether it wants to follow
a disciplinary route or a poor work performance process.
[28]
The Applicant has to show that she has a
clear right to the relief that she seeks. Her case is that she has
the right to allegations
of poor work performance being dealt with as
such and not as misconduct. That is so. The Applicant has the right
that poor work
performance be dealt with in accordance with the
prescribed procedure. The Applicant however does not have the right
to decide
whether her conduct falls within the realms of poor work
performance or misconduct, nor does she have the right to dictate to
her
employer to consider her conduct not as misconduct, but as poor
work performance. The decision is the employer’s to take,
not
the employee’s.
[29]
Once the employer has elected to follow a
poor work performance process, the Applicant has the right to a poor
performance process,
as prescribed in the Regulations. The right that
the Applicant has does not extend to her making a decision as to how
her conduct
should be treated or dealt with. That remains the
prerogative of the employer and if the employer decides to deal with
her conduct
as misconduct and not poor performance, it is for the
employer to follow due process. The Municipality, in making the
election
to institute disciplinary action instead of a poor work
performance process, may be required at a later stage and in an
appropriate
forum to defend the election that it has made.
[30]
The Applicant failed to show that she has a
right, let alone a clear right, to the relief she seeks. The
Applicant is unable to
show that she has a right to dictate to her
employer to follow a poor work performance process and to treat
allegations levelled
against her as poor work performance instead of
misconduct, in circumstances where her employer decided differently.
[31]
Mr Peer for the Applicant was unable to
direct this Court to any enabling provision that authorises this
Court to interfere with
an ongoing process initiated by an employer
and to dictate to an employer how to deal with allegations made
against an employee.
Absent a clear right, this Court cannot come to
the Applicant’s assistance.
Costs
[32]
The last issue to be
decided is the issue of costs.
This
Court has a wide discretion in respect of costs, considering the
requirements of law and fairness.
[33]
In
Zungu
v Premier of Kwa Zulu-Natal and Others
[2]
the
Constitutional Court confirmed the rule that costs follow the result
does not apply in labour matters. The Court should seek
to strike a
fair balance between unduly discouraging parties from approaching the
Labour Court to have their disputes dealt with
and, on the other hand
allowing those parties to bring to this Court cases that should not
have been brought to Court in the first
place.
[34]
Mr Peer submitted
that costs should follow the result. Mr de Swardt for the Respondents
submitted that the application should be
dismissed with costs. In
short, both parties seek an order for costs.
[35]
This
is a case where the Court has to strike a balance, considering the
requirements of law and fairness. The general accepted purpose
of
awarding costs is to indemnify the successful litigant for the
expense he or she has been put through by having been unjustly
compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and Another
it
was emphasized that
[3]
’
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party be awarded its costs. The
successful
party has been compelled to engage in litigation and incur legal
costs. An appropriate award of costs is one method
of ensuring that
much earnest thought and consideration goes into decisions to
litigate in the Labour Court, whether as applicant
in launching
proceedings or as respondent opposing proceedings.’
[36]
In casu,
the
Applicant brought a meritless application to this Court
and
fairness dictates that the Respondents cannot be expected to endure
enormous costs defending litigation where more thought and
consideration had to be put in before approaching this Court on an
urgent basis.
This is more so where the
costs incurred by the Respondents are paid from taxpayers’
money and I can see no reason why the
taxpayers should be burdened
with the costs in this application.
[37]
In my view this is a case where it is
appropriate to make a cost order.
[38]
In the premises, I make the following
order:
Order:
1.
The application is dismissed with costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Advocate
Y Peer
Instructed by:
Edward
S
Classen & Kaka Attorneys
For
the Respondents: Mr A
de Swardt of De Swardt Myambo Attorneys
[1]
(2008)
29 ILJ 964 (LAC) at para 32.
[2]
(2018)
39 ILJ 523 (CC) at para 24.
[3]
(2012)
33 ILJ 2117 (LC) at para 88.