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[2020] ZALCJHB 93
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Kubheka v Member of the Executive Council: Human Settlements (Gauteng Provincial Government) and Another (J280/20) [2020] ZALCJHB 93; (2021) 42 ILJ 1497 (LC) (5 May 2020)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J280/20
In the matter between:
ENOCH KUBHEKA
Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL:
HUMAN SETTLEMENTS
(GAUTENG PROVINCIAL
GOVERNMENT)
First
Respondent
YANGA GIYOSE, NO.
Second Respondent
Heard:
4 and
20
March 2020
Delivered:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email, publication on the Labour
Court website and release to
SAFLII. The date and time for hand-down is deemed to be 10h00 on 05
May 2020.
Summary:
Urgent interdict – stay of the parallel in-house disciplinary
hearing section – section
188A tripartite agreement – the
employer is divest of its prerogative to institute the in-house
disciplinary hearing pending
the final determination of the
allegations before the pre-dismissal arbitration.
JUDGMENT
NKUTHA-NKONTWANA, J
Introduction
[1]
In this urgent application the applicant,
Mr Enoch Kubheka (Mr Kubheka), seeks an order in the following terms:
1.1
Firstly,
declaring that the second and parallel in-house disciplinary hearing
which has been instituted against him while there
is a pending
pre-dismissal arbitration in terms of section 188A of the Labour
Relations Act
[1]
(LRA) is
unlawful;
1.2
Secondly, declaring that the first
respondent, the Member of the Executive Council: Gauteng Department
of Human Settlements (MEC)
or the Gauteng Department of Human
Settlements (Department), collectively referred to as the Department,
does not have powers or
prerogative to institute an in-house parallel
disciplinary hearing against him while there is a pending
pre-dismissal arbitration,
to which the parties have agreed upon,
before an arbitrator appointed by the GPSSBC; and
1.3
Thirdly, interdicting and restraining the
Department and the second respondent, Mr Yanga Giyose (Mr Giyose) -
the chairperson of
the parallel in-house disciplinary hearing, from
proceeding with the parallel in-house disciplinary hearing pending
the finalisation
of the pre-dismissal arbitration before the GPSSBC.
[2]
The Department is opposing the application
but initially elected not to file an answering affidavit and
proceeded by way of oral
legal submissions in Court on 4 March 2020,
mainly challenging the issue of urgency. I handed down an extempore
judgement wherein
I found that the matter is urgent. By agreement
between the parties, the matter was postponed to 20 March 2020 in
order to allow
the Department an opportunity to file an answering
affidavit on the merits.
Pertinent facts
[3]
On 5 March 2019, the Acting Head of
Department, Mr Daniel Molokomme (Mr Molokomme), served Mr Kubheka,
who was the acting Chief
Financial Officer at that time, with a
letter informing him of the impending disciplinary hearing against
the him following the
findings and recommendations from the Gauteng
Audit Services (GAS) report regarding the ‘Construction of 150
ablution and
Sanitation Infrastructure and Ablution Facilities at
Sicelo Shiceka: Phase1’. He further opined that, given the
seriousness
of the allegations against Mr Kubheka, the disciplinary
hearing should be presided over by an independent person for purposes
of
fairness and an objective conclusion under the auspices of the
GPSSBC in terms of clause 2.7(5)(a) of Chapter 7 of the Senior
Management
Service, Handbook of 2003 (SMS Handbook). Clause 2.7(5)(a)
and (c) of the SMS Handbook provides that:
‘
(a)
The employer and the employee charged with misconduct
may agree that the disciplinary hearing will be chaired by
an
arbitrator from the relevant sectoral bargaining council appointed by
the council. The decision of the arbitrator will be final
and binding
and only subject to review by the Labour court.
(b)
…
(c)
For the purposes of a disciplinary hearing in terms of paragraph
2.7(5)(a), both the employer and the employee
may be represented by a
legal practitioner.
[4]
The provisions of clause 2.7(5) of the SMS
Handbook are premised on section 188A of the LRA which provides that:
‘
(1)
An employer may, with the consent of the employee or in accordance
with a collective agreement, request a
council, an accredited agency
or the Commission to appoint an arbitrator to conduct an inquiry into
the allegations about the conduct
or capacity of that employee.
(2)
The request must be in the prescribed form.
(3)
The council, accredited agency or the Commission must appoint an
arbitrator on receipt of-
(a) payment by the
employer of the prescribed fee, and
(b) the employee’s
written consent to the enquiry.
(4)
(a) An employee may only consent to the enquiry in terms of this
section after the employee has been
advised of the allegation
referred to in subsection (1).’
[5]
Attached to Mr Molokomme’s letter of
5 March 2019 is the notice of a disciplinary hearing which also
contains the following
charges of misconduct levelled against Mr
Kubheka:
‘
CHARGE
1: CONTRADICTION OF TREASURY REGULATIONS 15.10.1.2(C)
You are charged with
misconduct in that you accepted and recommended for advance payment
of R9 690 000.00 in December of 2017 which
led to AMAQAKALA
CONSTRUCTION & PROJECTS CC to be paid for work not completed in
line with contractual agreement signed between
the Department and
AMAQAKALA & PROJECTS CC.
CHARGE 2: FAILURE TO
ADHERE TO OR ENFORCE THE PROVISIONS OF THE APPROVED CONTRACT BETWEEN
THE DEPARTMENT AND THE SERVICE PROVIDER
You are charged with
failure to adhere to or enforce the contractual obligations entered
into between the Department and AMAQAKALA
CONSTRUCTION & PROJECTS
CC in that you accepted and recommended for payment to the service
provider before the Project Quality
Assurance Unit of the Department
had undertaken the quality verification and approval of the work done
and completed by the service
provider in line with the contract.
CHARGE 3: IRREGULAR,
WASTEFUL AND FRUITLESS EXPENDITURE
You are charged with
irregular, wasteful and fruitless expenditure in that you accepted
and recommended for payment of an invoice
without a project
management report to substantiate that the work had been done in line
with the contractual deliverables, therefore
causing the Department a
financial loss amounting to R9 960 000.00 for ablution and sanitation
infrastructure that was not effected
at the Sicelo Shiceka Informal
Settlement.’
[6]
Initially the first disciplinary hearing
was scheduled to sit on 15 March 2019. On 26 April 2019, the parties
signed the prescribed
requisite form in terms of section 188A of the
LRA, mutually agreeing that the disciplinary hearing against Mr
Kubheka be conducted
by way of a pre-dismissal arbitration.
[7]
Thereafter, there was a hiatus in the
commencement of the pre-dismissal arbitration which is not accounted
for by either of the
parties. It must be mentioned that Mr Kubheka
was not placed under precautionary suspension and as such he
continued performing
his duties.
[8]
On 15 November 2019, Mr Kubheka was served
with the second notice to attend a disciplinary hearing (parallel
in-house disciplinary
hearing) that was scheduled to sit on 18
November 2019 under the chairpersonship of Mr Giyose. Attached
thereto is a second charge
sheet with the following allegations of
misconduct:
‘
It
is alleged that you committed the following act/s of misconduct as
provided in the Disciplinary Code and Procedure; and based
on the
finding of the Auditor-General in its audit report for the financial
year 2018/2019 of the Department’s state of financial
affairs,
we hereby inform you of the following charges against yourself: -
‘
Charge
1:
You
performed poorly/ inadequately reasons (sic) other than incapacity to
misconduct,
In that, amongst other
things, and while you were on duty, you:
(i)
Did not ensure proper application of
applicable legislative measures or review and monitor compliance with
the
Division of Revenue Act 2 of 2013
, the Public Finance Management
Act 1 of 1999;
(ii)
Did not prepare or see to the proper
preparation of true and reliable Annual Financial Statements which
were adequately supported
and evidenced by credible information;
(iii)
Failed to prevent misstatements to occur in
the Annual Financial Statements of the Gauteng Housing Fund and the
Vote 8;
(iv)
Failed to deliver to the Auditor-General
sufficient and appropriate financial statements to complete an audit
of the Department;
(v)
Failed to properly and adequately supervise
the preparation of the Department ‘s 2018/2019 financial
statements;
(vi)
Failed to ensure compliance of the
Department’s Annual Financial Statements to be submitted for
audit;
(vii)
Did not ensure preparation of the Annual
Financial Statements in terms of Modified Cash Basis and/or Generally
Recognised Accounting
Practice, respectively.
Charge
2:
Dereliction
of duties
In that, and while you
were on duty and during an Audit Committee Meeting, and in the face
of having assistance offered to yourself
by the Acting Head of the
Department to ensure the proper completion of accurate and credible
financial statements, you refused
assistance and again gave assurance
to prepare credible financial statements.’
[9]
The reality of the matter is that Mr
Kubheka is, in essence, presented with a situation where he has to
appear before two parallel
disciplinary hearings; one in terms of
section 188A of the LRA (pre-dismissal arbitration) and the other, an
in-house in terms
of SMS Handbook. On 27 November 2019, Mr Kubheka,
through his attorneys of record, requested the Department to combine
the two
charge sheets and for the matter to be heard and determined
by the arbitrator in terms of the pre-dismissal arbitration.
Pertinently,
in his communication to Mr Amukelani Shibambo (Mr
Shibambo), the deponent to the Department’s answering
affidavit, consequent
to their telephonic discussion, Mr Justice
Lebea (Mr Lebea), Mr Kubheka’s attorney of record, states that:
‘
2.
We have noted that our client has been
subjected to two disciplinary hearings with two separate charge
sheets at different forums on chargers relating to his role as the
Acting Chief Financial Officer of the Gauteng Department of
Human
Settlements. At this stage, both disciplinary hearings have not yet
commenced, and therefore not part-heard.
3.
As discussed, we suggest that the two charge sheets should be
consolidated and be heard before
one forum to minimise costs and time
consuming process caused by the necessity of attending and appearing
into two different
fora
. As our client has already received a
notice of set down from the GPSSBC for the Pre-Dismissal hearing
schedule for 24
th
January 2020, it would be prudent and
convenient to conduct a single disciplinary hearing at the
aforementioned Bargaining Council
as it will be less costly and less
time consuming for both parties.
4.
In light of the aforegoing, we kindly request that you consider our
suggestion to consolidate the
aforementioned charge sheets brought
against our client in two different forums in order to hold a single
disciplinary hearing
before one tribunal.’
[10]
The Head of Department, Ms Phindile Mbanjwa
(Ms Mbanjwa), responded to Mr Lebea’s letter through a letter
dated 13 December
2019 but transmitted and received by Mr Lebea’s
office on 10 January 2020. In refusing the suggestion to consolidate
the
two charge sheets against Mr Kubheka and for the matter to be
dealt with in terms of pre-dismissal arbitration, she states that:
‘
The
Department wishes to indicate that the disciplinary charges against
Mr Kubheka should proceed separately due to the fact that
charge
sheets were issued on different dates with different timelines. It is
therefore important to finalise each of the disciplinary
charges
within the prescribed timelines in line Chapter 7 of the SMS Handbook
of 2003.
Based on the above, it is
the Department’s view that the disciplinary hearings against Mr
Kubheka should proceed as planned
and that all the stakeholders
ensure that these matters are finalised without any further delays.’
[11]
As mentioned in Mr Lebea’s letter of
27 November 2019, the pre-dismissal arbitration was scheduled to
commence on 24 January
2020, with the parties having been notified of
the set down date as early as 18 November 2019. On 24 January 2020,
both parties
attended the pre-dismissal arbitration. Mr Kubheka
raised a point
in limine
,
objecting to the parallel in-house disciplinary hearing while the
pre-dismissal arbitration is still pending before the GPSSBC.
Alternatively, he sought the consolidation of the second charge sheet
with the one already before the pre-dismissal arbitration.
The
arbitrator reserved his ruling and directed the parties to deliver
written submissions on issues raised by Mr Kubheka. Mr Kubheka
filed
his written submissions on 31 January 2020, while the Department’s
written submissions were only filed on 17 February
2020.
[12]
Notwithstanding, the parallel in-house
disciplinary hearing sat on 10 February 2020. By the same token, Mr
Kubheka raised a point
in limine
pertaining to the legality of the in-house disciplinary hearing in
the light of the pending pre-dismissal arbitration before the
GPSSBC.
He also requested for the in-house disciplinary hearing to be
postponed pending the GPSSBC’s ruling on the point
in
limine
. Mr Goyise also directed the
parties to submit written arguments, which both parties did.
[13]
On 24 February 2020, Mr Goyise issued his
ruling wherein he dismissed Mr Kubheka’s point
in
limine
. He also directed that the
second disciplinary hearing proceed on 4 March 2020. On 25 February
2020, Mr Kubheka through his attorneys
of record, advised the
Department that Mr Lebea would not be available on 4 March 2020 due
to prior commitments and suggested that
the hearing be postponed
sine
die
pending the outcome of the ruling
by GPSSBC on the point
in limine
.
They also suggested 30 and 31 March 2020 as possible dates to
reconvene. In response, the Department, through its erstwhile
attorney,
Mr Combrick Nel (Mr Nel) of Kruger & Pottinger
Attorneys, insisted on continuing with the parallel in-house
disciplinary hearing
as directed by Mr Goyise, hence this
application.
Non-joinder
[14]
Before I deal with the merits, I need to
quickly dispose of the Department’s point
in
limine
of non-joinder of the GPSSBC. In
this regard Mr Mahlangu, counsel for the Department, submitted that,
given the reliance placed
by Mr Kubheka on the finalisation of the
pre-dismissal arbitration before the GPSSBC and the arbitrator’s
finding on the
point
in limine
on the consolidation of the two charge sheets, he ought to have
joined the GPSSBC in these proceedings. This is so because the
GPSSBC
has a direct and substantial interest in the determination of whether
it should consolidate the second charge sheet to the
charge sheet
before pre-dismissal arbitration, so the submission went further.
[15]
In response, Mr Kubheka disavows reliance
on the GPSSBC ruling on the point
in
limine
. Mr Marcus, counsel for Mr
Kubheka, submitted that the crux of Mr Kubheka’s case is that
the Department has no power to institute
a parallel in-house
disciplinary hearing pending the final determination of the
pre-dismissal arbitration before the GPSSBC. In
fact, the GPSSBC
ruling had since been issued and the arbitrator ruled that he has no
powers to interfere with the employer’s
internal processes and
accordingly dismissed Mr Kubheka’s point
in
limine
. However, the arbitrator did not
discount the possibility of the parties entering into any agreement
to consolidate the two charge
sheets and be determined under the
auspices of the GPSSBC.
[16]
In my view, the arbitrator correctly found
that he has no power to pronounce on the legality of the parallel
in-house disciplinary
hearing against Mr Kubheka as his jurisdiction
is limited to the first charge sheet. Having come to that conclusion,
it is clear
that the GPSSBC has no substantial interest in these
proceedings.
[17]
Mr Kubheka’s impugn pertains to the
legality of the parallel in-house disciplinary hearing which has no
bearing on the GPSSBC.
It is only when the parties agree to the
consolidation of the charges and that they be determined by way of
the pre-dismissal arbitration
that the arbitrator would be properly
clothed with powers to deal with issues emanating from the second
charge sheet as well.
[18]
To
the extent that these proceedings do not impact on the first charge
sheet before the GPSSBC and there no order sought against
it, in any
event, I fail to understand how can it have a direct and substantial
interest. While the legal principles articulated
in the
dicta
referred to in the Department’s written submissions in this
regard are indubitable, they are not applicable in this instance.
[2]
As such, the non-joinder impugn is untenable and stands to be
dismissed.
Section 188A of the
LRA
[19]
The
prime assertion by Mr Khubeka is that the Department is debarred from
instituting the parallel in-house disciplinary hearing
against him
pending the final determination of the pre-dismissal arbitration
before the GPSSBC. This assertion is pegged on the
unreported
decision of this Court in
Virgil
Rabie v Department of Trade and Industry and Another
[3]
wherein I referred with approval to dicta in
South
African Transport and Allied Workers Union and Others v MSC Depots
(Pty) Ltd and Others,
[4]
as
per Van Niekerk J, and
Mchuba
v Passenger Rail Agency of South Africa,
[5]
as per Lallie J. Pertinently I stated that:
‘
[15]
…In
South
African Transport and Allied Workers Union and Others v MSC Depots
(Pty) Ltd and Others,
[6]
the Court, as per Van Niekerk J,
articulately
explained the purpose of section 188A as follows:
‘
[11]
Section 188A (despite its unfortunate title which on the face of it,
assumes the outcome of the
arbitration hearing) has as its purpose a
means of expediting dispute resolution by avoiding duplication
between internal and external
hearings. In effect, in terms of a
tripartite agreement between the employee, the employer and the CCMA,
an arbitrator steps into
the shoes of the employer and assumes the
right normally considered a sacrosanct element of the managerial
prerogative - the right
to exercise discipline, including the right
to dismiss. The benefit for all is the elimination of the duplication
that inevitably
occurs when court-like in-house hearings are
inevitably followed by an arbitration hearing conducted on a
de
novo
basis.’
[16]
The court stated further that:
‘
[15]
It seems to me from the wording of s 188A that once an employer and
an employee consent to refer the
determination of allegations of
misconduct or incapacity to an arbitration hearing in terms of s
188A, and once the CCMA accedes
to the request, the employer
effectively agrees to bypass the application of its internal
disciplinary procedures and to accelerate
the
disciplinary process to the stage of the arbitration hearing
ordinarily applicable in a post-dismissal phase.
That being so,
and since the consent of the affected employee and the CCMA is
necessary to achieve that result, it is not open to
the employer to
abandon the process on a unilateral basis
.’ (Emphasis
added)
[17]
The principle in
MSC
Depots
has been endorsed in
Mchuba
v Passenger Rail Agency of South Africa,
[7]
where the Court stated that:
[16]
‘…By referring the matter to pre-dismissal arbitration,
the respondent lost the
right to take decisions on the relevance of
documents the applicant requested as it had handed it over to Tokiso.
When the tripartite agreement was reached, the respondent had no
residual power to take any step against the applicant including
dismissing him in terms of its disciplinary code. The respondent had
no right to abandon the pre-dismissal arbitration unilaterally.
By
withdrawing from the pre-dismissal arbitration agreement having
elected to deal with the allegations of misconduct against the
applicant by means of a pre-dismissal arbitration, the applicant
acted in breach of the applicant’s contract of employment
.’
(Emphasis added)’
[20]
The
legal principles articulated in the above dicta are prudently
conceded by the Department. Yet, it mooted a similar argument
as that
of the employer party in
Rabie
[8]
that
they are distinguishable given the fact that it has no intention to
abandon the pre-dismissal arbitration. The Department adds
that there
is nothing precluding it from exercising its prerogative, as the
employer, to institute the parallel in-house disciplinary
enquiry on
charges that are different from the ones before the pre-dismissal
arbitration given the explanation it has proffered,
which I deal with
hereunder.
[21]
The Department argued that the allegations
contained in the second charge sheet are serious because they emanate
from the adverse
findings by the Auditor-General (AG) against the
Department issued on 28 August 2019 in the 2018/2019 annual report.
Unlike the
internal audit findings by the Gauteng Audit Services
(GAS) that led to the allegations contained in the first charge
sheet, the
AG’s findings carried a disclaimer and are open to
public consumption. Also, given the seriousness of the disclaimer,
there
must be consequence management unlike in the case of the GAS
findings.
[22]
Mr Kubheka deplored this explanation as
illogical and as a vain attempt by the Department to minimise the
extremely serious allegations
contained in the first charge sheet
before the pre-dismissal arbitration. There is merit in this
argument. It would seem that the
Department is oblivious to the
motivation it presented Mr Kubheka when it sought his consent to the
pre-dismissal arbitration,
which was the seriousness of the
allegations contained in the first charge sheet and a promise of a
fair and expeditious hearing
under the auspices of the GPSSBC.
Clearly, the Department’s attempt to draw a solid line between
the nature of the allegations
and the source thereof is misconceived.
[23]
At issue is that while the pre-dismissal
arbitration lingers, the Department is clearly disrobed of its
prerogative to institute
a parallel in-house disciplinary hearing.
Interestingly, Mr Mahlangu conceded that the Department has no qualms
with the capabilities
of the arbitrator to deal with the allegations
contained in the second charge sheet. It would seem that the only
hurdle to the
consolidation of the two charge sheets is the delay in
commencing with the pre-dismissal arbitration, which the Department
attributes
to the GPSSBC. However, it is clear from the papers before
the Court that the Department ought to own up to its contribution to
the delay as it had a lackadaisical approach to the pre-dismissal
arbitration despite the gravity of the allegations against Mr
Kubheka. It only got a wakeup call sometime in November 2019, owing
to the AG’s findings. Instead of rekindling the pre-dismissal
arbitration and consolidating the two charge sheets, the Department
decided to trigger the parallel in-house disciplinary hearing.
That
is so despite the fact that when Mr Kubheka was served with the
second charge sheet, the arbitration date had already been
set for 24
January 2020.
[24]
The Department also asserts that the
parallel in-house disciplinary hearing is necessitated by the fact
that Mr Kubheka had been
placed on precautionary suspension because
it considered the AG’s findings more serious. So, the SMS
Handbook enjoins it
to hold a disciplinary hearing within 60 days
from the date of suspension, a deadline it would fail to meet given
the history of
delay at the instance of the GPSSBC. In my view, if
indeed the Department is hamstrung by the 60-day period in terms of
the SMS
Handbook, its answer lies in the pre-dismissal arbitration, a
process that is already underway. As correctly submitted by Mr
Marcus,
had the Department simply amended the first charge sheet
before the pre-dismissal arbitration by adding the charges contained
in
the second charge sheet, it would have easily complied with the
60-day requirement in terms of the SMS Handbook.
[25]
In any event, nothing turns on the
Department’s misgivings about the manner in which the GPSSBC
handled its request for the
pre-dismissal arbitration, particularly,
the delay. As stated in the authorities referred to above, once the
section 188A of the
LRA process has been triggered and the arbitrator
appointed, the employer has no residual power to institute a parallel
in-house
disciplinary hearing against the employee on new or related
allegations of misconduct.
[26]
The section 188A of the LRA scheme
catapults the disciplinary process to the statutory arbitration at
the instance of the employee’s
consent to forgo the right to
the security and comfort of both processes. Equally, the employer
relinquishes its prerogative to
enforce the disciplinary measures to
the arbitrator. The yield to both parties is the impartial
adjudicator, costs saving and expeditious
outcome. It stands to
reason, therefore, that the employer’s attempt to unilaterally
revoke the pre-dismissal arbitration
agreement cannot be permitted as
it would essentially negate the statutory dispute resolution scheme.
[27]
It
can be clearly deduced from the Department’s decision to
prioritise the parallel in-house disciplinary hearing that it
is
merely paying a lip service to its commitment to the pre-dismissal
arbitration. Equally, as in
Rabie,
[9]
unembellished,
the Department’s intent is to obviously use the parallel
in-house disciplinary hearing ‘to parachute
from the
pre-dismissal arbitration aircraft, so to speak’. When
parachuted, it would be impracticable to return to the pre-dismissal
arbitration as the dismissal of Mr Kubheka consequent to the parallel
in-house disciplinary hearing would render the pre-dismissal
arbitration moot. That is the nub of Mr Kubheka’s impugn
against the parallel in-house disciplinary hearing.
[28]
The Department, both in its written and
oral submissions, repeatedly mischaracterised Mr Kubheka’s case
as seeking to dictate
to the Department as to how to effect
discipline against him. Conversely, it is the Department that
approached Mr Kubheka and sought
his consent to the pre-dismissal
arbitration with a promise of fairness and convenience instead of an
in-house disciplinary hearing.
I asked Mahlangu what would have been
the situation had the allegations contained in the first charge sheet
been before an in-house
disciplinary hearing instead of pre-dismissal
arbitration. He correctly conceded that the Department would have
amended that charge
sheet and added the allegations contained in the
second charge sheet instead of initiating a parallel in-house
disciplinary hearing.
[29]
It boggles one’s mind as to why then
the Department changed its mind about the equitableness of the
pre-dismissal arbitration,
which is, in essence, a disciplinary
hearing
sui generis
.
Its hallmark is that the employer bestows its prerogative to
determine the manner in which that process is conducted and the
outcome to the arbitrator. Certainly, Mr Kubheka or the arbitrator
cannot dictate to the Department to consolidate the two charge
sheets, which is, in my view, a sensible thing to do. However, to
allow the Department to stage two parallel disciplinary processes
simultaneously would, not only muddle the purpose of the disciplinary
hearing, but would also undermine the section 188A of the
LRA scheme.
[30]
Also,
the Department’s argument that Mr Kubheka ought to have
reviewed the findings of both Mr Giyose and the arbitrator is
unmeritorious. The arbitrator correctly found that he had no powers
to consolidate the charge sheets in the absence of an agreement
by
the parties. Nonetheless, there is nothing stopping the arbitrator
from proceeding with the allegations contained in the first
charge
sheet. It is trite, in any event, that the GPSSBC cannot decide its
own jurisdiction. It is the Labour Court that has the
power to decide
whether the GPSSBC has jurisdiction in a particular matter.
[10]
[31]
The converse is true for the Department. It cannot
proceed with the parallel in-house disciplinary hearing while the
pre-dismissal
enquiry is pending. Either it agrees to the
consolidation of both charge sheets and be dealt with by the
arbitrator, or await the
final determination of the allegations
contained in the first charge sheet before the arbitrator. It is the
Department’s
choice, but it can’t
have
it both ways, so to speak.
[32]
Moreover,
in
Rabie,
[11]
this
Court deals with another constraint to abandoning the pre-dismissal
arbitration and stated the following:
‘
[27]
Another reason why abandoning the pre-dismissal arbitration is
unlawful is that it
is impermissible in terms of the doctrine of the
right of election which has since been endorsed by the Constitutional
Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
.
[12]
The Constitutional Court referred with approval to
Chamber
of Mines of South Africa v National Union of Mineworkers and
Another
[13]
where it was stated that:
‘
One
or other of two parties between whom some legal relationship subsists
is sometimes faced with two alternative and entirely inconsistent
courses of action or remedies. The principle that in this situation
the law will not allow that party to blow hot and cold is a
fundamental one of general application. A useful illustration of the
principle is offered in the relationship between master and
servant
when there comes to the knowledge of the former some conduct on the
part of the latter justifying the servant’s dismissal.
The
position in which the master then finds himself is thus described by
Bristowe J in
Angehrn and Piel v Federal
Cold Storage Co Ltd
1908 TS 761
at 786:
‘
It
seems to me that as soon as an act or group of acts clearly
justifying dismissal comes to the knowledge of the employer it is
for
him to elect whether he will determine the contract or retain the
servant… He must be allowed a reasonable time within
which to
make his election. Still, make it he must, and having once made it he
must abide by it. In this, as in all cases of election,
he cannot
first take one road and then turn back and take another.
Quod
semel placuit in electionibus amplius displicere non potes
t
(see Coke Litt 146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an
unequivocal act has been performed, that is, an act which necessarily
supposes an election in a particular direction, that is conclusive
proof of the election having taken place.’
The above statement of
the principle may require amplification in the following respect
indicated by Spencer Bower
Estoppel by Representation
(1923)
para 244 at 224 - 5:
'It is not... quite
correct to say nakedly that a right of election, when once exercised,
is exhausted and irrevocable, or in Coke's
phraseology:
quod semel
in electionibus placuit amplius displicere non potest
, as if mere
mutability were for its own sake alone banned and penalized by the
law as a public offence, irrespective of the
question whether
any individual has been injured by the volte-face. It is not so. A
man may change his mind as often as he pleases,
so long as no
injustice is thereby done to another. If there is no person who
raises any objection, having the right to do so,
the law raises
none.'’’
In
this instance, likewise, the Department exercised its election to
consent to the pre-dismissal arbitration in terms of section
188A of
the LRA and as such waived its prerogative to institute the parallel
in-house hearing pending the final determination of
the allegations
contained in the first charge sheet before the pre-dismissal
arbitration. Accordingly, Mr Kubheka’s objection
to the
Department’s
volte face
must be upheld
.
[33]
To
my mind, it follows that there are exceptional circumstances to
justify this Court’s intervention to interdict the incomplete
parallel in-house disciplinary hearing.
[14]
Conclusion
[34]
In the circumstances, in terms of the
section 188A of the LRA tripartite agreement; alternatively, in terms
of the doctrine of election,
the Department is disrobed of its power
and prerogative to institute any parallel in-house disciplinary
enquiry against Mr Kubheka
pending the finalisation of the
pre-dismissal arbitration, including dismissing him consequent to
those proceedings. Clearly, Mr
Kubheka has made a case for the grant
of the relief he seeks.
Costs
[35]
On the issue of costs, the parties agreed
that the costs of the appearance on 4 March 2020 shall be costs in
the cause. Also, despite
the trite principle that costs do not follow
the result in this Court, I am persuaded that this instance is
peculiar. Mr Kubheka
went out of his way to avoid approaching the
Court without success. The Department ought to have been better
advised on the prospects
of the course it had taken by instituting
the parallel in-house disciplinary hearing while still locked in the
pre-dismissal arbitration.
Notwithstanding, I am disinclined to award
punitive costs as requested by Mr Marcus.
[36]
In the circumstances, I make the following order.
Order
1.
The parallel in-house disciplinary hearing
which has been instituted against Mr Kubheka while there is a pending
pre-dismissal arbitration
in terms of section 188A of the LRA is
unlawful.
2.
The Department does not have the
prerogative to institute a parallel in-house disciplinary hearing
against Mr Kubheka while there
is a pending pre-dismissal arbitration
before the arbitrator appointed by the GPSSBC.
3.
The Department and Mr Giyose are
interdicted from proceeding with the parallel in-house disciplinary
hearing pending the finalisation
of the pre-dismissal arbitration
before the GPSSBC.
4.
The Department to pay Mr Kubheka’s
costs.
___________________
P Nkutha-Nkontwana
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Advocate M Marcus
Instructed
by:
Lebea & Associates Attorneys
For the Respondent:
Advocate S Mahlangu
Instructed
by: The
State Attorney, Johannesburg
[1]
Act
66 of 1995 as amended.
[2]
See:
Numsa
v Steinmuller (Pty) Ltd
[2012]
7 BLLR 733
(LC);
Barkhiezen
v Napier
2007(5) SA 323 (CC);
Economic
Freedom Fighters and Others v Speaker of the National Assembly and
Others
[2016] 1 All SA 520 (WC).
[3]
(J515/18)
[2018] ZALCJHB 78 (5 March 2018).
[4]
(2013)
34 ILJ 706 (LC) at para 11
[5]
[2016]
6 BLLR 612(LC);
[6]
[2012]
ZALCD 10; (2013) 34 ILJ 706 (LC) at para 11.
[7]
[2016]
6 BLLR 612
(LC) at para 16.
[8]
Supra
n
4.
[9]
Supra
n
4.
[10]
See:
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008)
29
ILJ
2218
(LAC)
at paras 39 - 40.
[11]
Supra
n
4.
[12]
[2008] ZACC 16
;
2009
(1) SA 390
(CC);
[2008] 12 BLLR 1129
(CC); [2008] 29 ILJ 2507 (CC)
at para 54.
[13]
1987
(1) SA 668
(AD) at
690
D-G.
[14]
See:
Booysen
v Minister of Safety and Security and Others
[2011]
1 BLLR 83
(LAC), (2011) 32 ILJ 112 (LAC) at para 36;
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson and others
[2009]
8 BLLR 833
(LC) [2009] at para 3;
Jiba
v Minister
:
Department
of Justice and Constitutional Development and others
[2005] ZALC 15
;
[2009] 10 BLLR 989
(LC), (2010) 31 ILJ 112 (LC) at para 17.