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[2019] ZALCD 5
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Mkasi v Department of Health: Kwazulu-Natal (D657/2019) [2019] ZALCD 5; [2019] 9 BLLR 926 (LC); (2019) 40 ILJ 2576 (LC) (31 May 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT DURBAN
CASE
NO: D657/2019
Reportable
In the matter between:
WILLIE
STEVE MKASI
Applicant
and
DEPARTMENT
OF HEALTH: KWAZULU-NATAL
First respondent
ADVOCATE
C.M KULATI N.O
Second Respondent
Heard: 24 May 2019
Delivered: 31 May 2019.
Summary: Urgent
application – stoppage of internal disciplinary hearing –
right to review – chair wrongly holding
that he was
functus
officio
– applicability of absolution from instance
principle in internal disciplinary hearings – right to
interdict found
to exist pending outcome of review.
JUDGMENT
CELE J
Introduction
[1]
It is on urgent basis in terms of section 158 (1) (a) of the Labour
Relations Act
[1]
that, the
applicant sought to be granted an order to interdict and restrain the
disciplinary hearings between the applicant and
the first respondent
pending the finalisation of the review application launched under
case number D657/2019. This application
was opposed by the first
respondent, in its capacity as the current employer of the applicant,
on the simple basis that the urgent
and the review applications are
misconceived.
Factual Background
[2]
The first respondent, also hereafter referred to as the employer, is
pursuing misconduct
charges against the applicant. There are three
charges which relate to the allegations of assault on one Mr
Chambers, a colleague
of the applicant, which assault allegedly took
place on 15 September 2017 at their workplace. The disciplinary
hearing is presided
over by the second respondent. Upon the employer
closing its case the applicant made substantive applications seeking
inter alia
to:-
1)
Quash the charges on the basis of waiver of
discipline due to delayed prosecution;
2)
Quash the charges on the basis of the
employer having elected to proceed by way of a formal grievance in
terms of its policies and
then the employer turning around and
charged the applicant for the same complaints while the grievance was
still pending; and
3)
An absolution from instance.
[3]
The second respondent issued a ruling on the substantive applications
effectively
dismissing all three points and ordering the disciplinary
enquiry to proceed. The applicant subsequently instituted review
proceedings
in terms of section 158(1)(h) of the LRA seeking to
review and set aside the ruling of the second respondent. The review
papers
have been served on both respondents and filed at this Court
under case number D657/2019. Subsequent to the serving and filing of
the review application, applicant’s attorneys sent a letter to
the first and second respondents; inter alia requesting an
undertaking that pending the finalization of the review application,
the disciplinary enquiry in
cas
u shall be held in abeyance.
The second respondent responded on 25 April 2019. The second
respondent said that the hearing would
proceed irrespective of the
review application pending and he said that only a court order would
stop the disciplinary hearing
from proceeding.
[4]
Attorneys of the applicant wrote to first respondent’s
representative enquiring
from them what their attitude was with
regards to the continuation or otherwise of the disciplinary enquiry
pending the review
application. The first respondent had remained
silent about the enquiry even though they are the ones in charge of
the disciplinary
process. Once again there was no response from the
first respondent. The applicant felt that the clock was ticking for
this application
to be made in the event that, the answer was to the
negative towards the non-continuation of the disciplinary enquiry. On
the 2nd
of May 2019 applicant’s attorneys telephoned Mr Shaun
Henman, the representative of the First respondent in the
disciplinary
enquiry, to enquire if he has received all applicant’s
communications to which he indicated that he only received the letter
sent to both parties. Mr Henman then requested that the second letter
addressed to the first respondent be forwarded to him in
an
alternative email address which was done. The applicant’s
attorneys told Mr Henman that in the event that he remains silent
about the employer’s attitude on the continuation or otherwise
of the disciplinary enquiry, the applicant would be left with
no
option but to approach this Court on an urgent basis seeking to
restrain the continuation of the disciplinary enquiry. It was
further
emphasised to him that such a manoeuvre would attract costs against
the respondent as it was their view that approaching
the Court in the
circumstances of this case was wholly unnecessary. It was only on 6
May 2019 that Mr Henman replied, simply stating
that the first
respondent abided the decision of the second respondent. On 24 April
2019 the applicant initiated the present application.
Analysis
Functus officio
[5]
It remained undisputed that the second respondent was called upon by
the applicant
to consider whether the employer had waived its right
to discipline the applicant when it failed to charge him within a
period
of sixty (60) days after it had suspended him, from the date
of suspension of the applicant a period of about eight months had
elapsed when the employer charged him. During the internal
disciplinary hearing, the applicant challenged the delayed charging
and he called on the second respondent to rule on it. The second
respondent did not rule on the issue and both parties in this
application are
ad idem
on that aspect. When the applicant
raised the failure to rule on the issue, the second respondent was
adamant that he had ruled
on it and directed the parties to proceed
with their evidence. One of the orders sought to issue by the
reviewing court is a directive
to the second respondent to determine
the waiver issue.
[6]
The employer opposed the granting of the urgent relief based on this
issue. The second
respondent’s submission is that in the
context of an administrative functionary it must be established on
the probability
that the official has in fact exercised the
decision-making power. If it is accepted, as the applicant is
constrained to do, that
the second respondent did not issue a ruling
in respect of the issue of waiver and delay, then it must per force
be accepted that
he was not
functus officio
. That, until such
time that he has done so, no review can follow. It cannot help a
litigant to contend that the parties must be
put through expense,
time and effort only for the very issue to be remitted to that
functionary. The employer’s contention
is that it cannot
therefore be said that the second respondent has finally performed
his duties in relation to the point and that
he has consequently
exhausted his powers and discharged his mandate.
[7]
Both parties in this application are also
ad idem
that the
second respondent is not
functus officio
on the waiver issue,
hence a prayer by the applicant that the reviewing court should remit
the matter for the second respondent
to reconsider the issue. I am in
total agreement with the parties that the second respondent is not
functus officio
on the waiver issue. The attitude of the
second respondent to refuse to consider the waiver issue leaves the
applicant with no
suitable alternative remedy than to review his
decision not to reconsider the issue. The serving of the review
application papers
on the second respondent gave him a second chance
to reconsider his position. He was undeterred. The serving of the
papers of this
application gave the second respondent a third
opportunity to revisit the issue and inform the parties accordingly.
He is still
unwavering.
[8]
In respect of the applicability of a waiver, i
n
the case of
Department
of Public Works, Roads and Transport v Motshoso and Others
[2]
Court
upheld the view that an unreasonable delay which has not been
explained by the employer should result in the employer waiving
its
right to discipline.
Court
cited with approval the case of
Union
of Pretoria Municipal Workers and Another v Stadsraad van
Pretoria
[3]
where
the court had held that:
“
T
he
failure to convene an enquiry promptly in a similar in casu is so
grossly unfair that it vitiates the decision to dismiss.
”
[9]
In
Moroenyane
v Station Commander of the South African Police Services -
Vanderbijlpark
[4]
the
Court remarked that:
”
b
ecause
of the delay, it has to be inferred that that employer has waived its
right to take disciplinary action against the employee
”
[5]
[10]
The review application seeks to set aside the decision of the second
respondent in dismissing
the applicant’s substantive
application. Section 158 (1) (h) of the LRA permits the court to
review the decision taken or
acts performed by the first respondent
in its capacity as the employer. Such decision manifested itself in
the ruling of the second
respondent handed down on 05 April 2019. The
second respondent, while chairing the disciplinary hearing acts as
qua
employer,
[6]
and as such, his
conduct is subject, like that of the first respondent to be reviewed
under section 158 (1) (h) of the LRA. In
Hendricks
v Overstrand Municipality and Another
,
[7]
the Labour Appeal Court stated that:
“
In
sum therefore, the Labour Court has power under s158 (1) (h) to
review the decision taken by a presiding officer of a disciplinary
hearing on (i) grounds listed in PAJA, provided the decision
constitutes administrative action; (ii) in terms of the common law
in
relation to domestic or contractual disciplinary proceedings; (iii)
in accordance with the requirements of the constitutional
principles
of legality, such being grounds ‘permissible in law.
”
[8]
[11]
The second respondent’s ruling that he has dealt with the
waiver issue is patently wrong
and liable to be reviewed and set
aside. It stands to reason therefore that without an explanation for
the delay of about eight
months, the review application has some
merits on the waiver point. The applicant has successfully
demonstrated that he stands
in good chances of the reviewing court to
find in his favour. It behoves this court to therefore come to his
assistance this regard.
Absolution from the
instance.
[12]
The second ground of review is that the second respondent’s
ruling on the absolution from
the instance be reviewed and set aside
and replaced with an order that the applicant be absolved from the
instance. Unlike the
first ground with a remittal power, this ground,
if successful is capable of disposing off the whole disciplinary
enquiry. After
the employer closed its case, the applicant applied
for an absolution from the instance with no success.
[13]
One of the later amendments to the LRA appears to be apposite here.
In
terms of Section 158 (1) (B) the Labour Court may not review any
decision or ruling made during conciliation or arbitration
proceedings conducted under the auspices of the Commission or any
Bargaining Council in terms of the provisions of this Act before
the
issue in dispute has been finally determined by such a body. The
except is where the Labour Court is of the opinion that it
is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined. The first
respondent contends
that it would be inimical to the LRA if it is generally impermissible
to review a ruling of an Arbitrator but
to permit an employee to
doing so.
[9]
[14]
The second consideration militating against the granting of
absolution from the instance in these
circumstances is that the
Industrial Court, as it was then known, ruled as far back as 1991
that “the essence of a decree
of absolution from the instance
is that the party against whom it is granted is free to enter once
again upon the disputes and
such a notion is quite inconsistent with
the finality the Industrial Court is enjoined to bring about.
[10]
The
Commission for Conciliation, Mediation and Arbitration (CCMA) has
also found that absolution from the instance was not a competent
order in arbitration proceedings. The CCMA is a creature of statute.
The first respondent said that, if the CCMA does not have
the power
to grant absolution from the instance, it is impossible to conclude
that a Chairperson of an enquiry has such a power.
The power must be
obtained from the empowering legislation or instrument
[15]
A submission by the first respondent is that it is
impermissible
for a party who has domestic remedies available to him such as
closing his case or testifying, or appealing if he
is found guilty,
or even lodging arbitration proceedings to bring review proceedings
to this Court before exhausting those domestic
remedies
[11]
.
In his founding affidavit for the review application the applicant
had the following to say:
“
It
is constitutionally unsound law that an employee in a disciplinary
hearing has to make an election between two equally risky
options of
either closing his or her case without leading evidence or open his
or her case to answer baseless allegations with
a possibility of
incriminating himself or herself, whereas this election need not be
made in criminal or civil matters. Closing
ones case in exercise of a
right to remain silent carries a big risk of an adverse finding being
made against the employee. Similarly,
testifying on a case where the
employer has failed to discharge its onus equally carries a risk of
self-incrimination. This distinction
on disciplinary matters can only
be unconstitutional. There is no rational basis for suggesting that
the labour laws did not intend
for the presumption of innocence until
proven guilty defence to operate in disciplinary matters whereas this
is a constitutionally
guaranteed right. The requirements of section
138 (1) of the LRA will surely be met in an absolution ruling because
the trier of
facts would have heard evidence on the merits of the
dispute and based and based the absolution decision on that evidence.
The
merits of a dispute do not necessarily mean hearing the versions
of both parties. Merits can lawfully be determined from the version
of one party to the dispute.
”
[16]
It is certainly arguable that a presiding officer who complies with
section 138 (1) of the LRA
and deals with a matter fairly and quickly
by granting absolution from the instance cannot be said to be acting
ultra vires when
the case before him or her, fairly considered,
warrants such, provided there is enabling law so to do. Presently no
such law exists.
For instance
court
refused such relief in
Moroenyane
v The Station Commander of the South African Police Services Van Der
Bijl Park
[12]
where Court stated that the applicant had two alternative remedies at
her disposal. The first of course was to participate in the
proceedings and if those went against her could challenge these by
way of arbitration proceedings in terms of the Act.
[13]
[17]
What the applicant seeks to do here is to challenge the applicability
of a right to silence until
proven guilty as part of a right
exercisable in labour disputes. To my knowledge no such
constitutional challenge has yet been
made. It remains clear that,
without such a constitutional challenge, the decision of the second
respondent stands to be found
to fall within a range of
reasonableness, as there already are cases decided along the same way
the second respondent made his
decision. As already alluded to, in my
view, the applicant has presented an arguable case on this issue.
[18]
In the light of the view I have expressed on the two issues
herein-above discussed, I deem it
unnecessary to have to pronounce on
the grievance issue.
The interdict
[19]
Section 158 1) (h) of the LRA permits the
court to review the decision taken or act performed by the first
respondent in its capacity
as the employer. Such decision manifested
itself in the ruling of the second respondent handed down on 05 April
2019.The review
application seeks to set aside the decision of the
second respondent in dismissing the applicant’s substantive
application
and if the second ground is successful, it has the
potential of putting an end to the disciplinary hearing. He therefore
has a
right to review.
[20]
To say that the applicant has a right to further internal remedies is
only cold comfort when
he could be dismissed and be deprived of
resources to utilize in the exercise of such rights. He has
demonstrated that he brought
the urgent application after a failed
attempt to settle the matter outside court. He has successfully
demonstrated the presence
of urgency. If this court did not intervene
the internal hearing would have proceeded thus depriving him of his
right to review,
which right would be rendered more academic then
real.
[21]
In,
Pinetown
Council v President of the Industrial Court and Others,
[14]
the court held that:
“
Where
the jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself jurisdiction
by
incorrectly finding that the conditions for the exercise of
jurisdiction are satisfied. The conditions precedent to jurisdiction
are known as “jurisdictional facts”…which must
objectively exist before the tribunal has power to act; consequently
a determination on the jurisdictional facts is always reviewable by
the courts because in principle it is no part of the exercise
of the
jurisdiction but logically prior to it…”
[22]
There
is no merit in proceeding with the disciplinary hearing as the
continuation of the hearing
is
dependent on the existence of a particular state of affairs yet to be
decided upon by this Court, which has a potential to put
a permanent
end to the disciplinary hearing. T
he
application to interdict and restraint the continuation of the
disciplinary hearing pending the finalisation of the review
application
should succeed. I have reflected on the law and fairness
on the costs issue.
Order:
1)
The order
is granted as prayed for in paragraphs 1 and 2 (1) of the notice of
motion.
2)
The first
respondent is ordered to pay the costs hereof.
J
Cele.
Judge
of the Labour Court of South Africa.
[1]
Act
Number 66 of 1995 hereafter referred to as the LRA.
[2]
(JR795/03)
[2005] ZALC 62
(17 March 2005)
[3]
1992
(1) ILJ 1563 (IC).
[4]
(J1672/2016)
[2016] ZALCJHB 330 (26 August 2016)
[5]
Paragraph 43.
[6]
Ntshangase
v MEC: Finance Kwa-Zulu Natal and Another
[20009] ZASCA 123.
[7]
(2015)
36 IJL 163 (LAC). See also
Ramonetha
v Department of roads and Transport Limpopo and Another
(JA104/2016) (2017) ZALAC.
[8]
Paragraph 29.
[9]
See
Ntombela
and Others v United National Transport Union and Others
(2019) 40 ILJ 874 (LC) at paragrapg 40
[10]
Textile
Works Union (TVL) and Another v Sandown Clothing Manufacturing
(Pty)
Ltd (1991) 12 ILJ 890 (IC)
[11]
See
Union
of Refugee Women and others v Director Private Security Industry
Regulatory Authority and Others
2007
(4) SA 395
CC at para71.
[12]
(J1672/2016)
[2016] ZALCJHB 330 (26 August 2016).
[13]
Moroenyane,
para 56.
[14]
1984
(3) SA 174
(N). Paragraph C