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[2020] ZALCJHB 103
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Laubscher v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 1053 (LC) (15 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JR 2236/17
In
the matter between:
LAUBSCHER,
ALBERTUS JOHANNES
Applicant
and
THE
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL ("GPSSBC")
First Respondent
COMMISSIONER
INGRID DIMO, N.O.
Second Respondent
THE
DEPARTMENT OF INTERNATIONAL
RELATIONS
AND CO-OPERATION ("DIRCO")
Third Respondent
Date
Heard: 9 January 2020
Delivered:
This judgement was handed down electronically by circulation to the
parties' legal representatives on the 15 June 2020
Summary:
Review Application of a Jurisdictional Ruling by Second Respondent to
the effect that the GPSSBC had no jurisdiction to
hear a dispute
involving a disciplinary action short of dismissal as provided for in
Section 186(2)(b) of the LRA - Test of reasonableness
of ruling not
necessary - Court had to consider the matter de novo as it is a
jurisdictional issue.
Court
finds that the institution of a disciplinary enquiry and in this
case a Section 188A of the LRA inquiry constitutes
disciplinary
action short of a dismissal and is an unfair labour practice in terms
of Section 186 (2) (b) of the LRA . Ruling set
aside and Applicant
awarded compensation for
solatium
and legal
costs incurred.
JUDGMENT
RAMDAW,AJ
Background
[1]
The Applicant was employed by the Third
Respondent as a Director: Diplomatic Immunities and Privileges
at the United Nations,
New York.
[2]
On
6 September 2016 the Employer served the Applicant with a notice
to attend an inquiry in terms of section 188A of the Labour
Relations
Act
[1]
(LRA) by an
Arbitrator containing seven distinct allegations of
misconduct (hereinafter referred
to as the disciplinary enquiry). On
8 October 2016 the Applicant requested certain further particulars to
the allegations made
which were not forthcoming and the
disciplinary enquiry was continuously postponed.
[3]
On 19 December 2016 the Applicant
approached this Court for an order
inter
alia
interdicting the disciplinary
action and declaring same invalid which order was granted on an
unopposed basis with no order as to
costs. The Third Respondent
withdrew the charges against the Applicant on or about 28 March 2017.
[4]
The Applicant referred an unfair labour
practice dispute to the GPSSBC relating to taking disciplinary action
short of dismissal
in terms of section 186(2)(b) of the LRA wherein
he sought compensation in the form of a
solatium
for the unfair labour practice meted
out to him and for the costs he incurred in relation to defending
himself in the disciplinary
enquiry he had to face which was
withdrawn on 28 March 2017.
[5]
The Second Respondent who arbitrated the
dispute on 8 October 2017 found that she did not have the
jurisdiction to arbitrate this
dispute on various grounds as set out
in her Jurisdictional ruling
[6]
The Applicant seeks an order reviewing
and setting aside the aforesaid ruling made by the Second
Respondent. Furthermore
for an order declaring
that the First Respondent has jurisdiction to arbitrate this unfair
labour dispute
which dispute should be arbitrated by a
Commissioner, other than the Second Respondent. The Third Respondent
opposes this application.
Test
for a Review of a Jurisdictional issue:
[7]
The
test for a review of a jurisdictional point is set out in detail by
Snyman, AJ
in
SABC v CCMA and Others
[2]
and
is applied herein.
[8]
In
cases such as these, where it is about whether the First Respondent
had jurisdiction, the Labour Court is entitled to, if not
obliged, to
determine the issue of jurisdiction of its own accord, by
deciding
de
nova
whether
the determination by the arbitrator on jurisdiction is right or
wrong.
[3]
In
Trio
Glass t/a The
Glass
Group
v Molapo NO and Others
[4]
the
Court said:
'The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA jurisdiction of its own accord. In doing
so, the Labour
Court is not limited only to the accepted test of review but can in
fact determine the issue de novo in order to
decide whether the
determination by the commissioner is right or wrong.'
[9]
In
the case of a wrong decision by a CCMA arbitrator where
it
comes
to the issue of jurisdiction, the decision of the arbitrator would be
reviewable on objectively justiciable grounds.
[5]
It does not matter what the reasoning of the arbitrator may have
been, it is up to the Court to, from an objective perspective,
decide
whether the requisite jurisdictional facts exist. In
Universal
Church of the Kingdom of God v Myeni and Others
[6]
the
Court said:
'...
the value judgment of the commissioner in a jurisdictional ruling has
no legal consequence and that it is only a ruling for
convenience.
Therefore, the applicable test is simply whether, at the time of
termination of his relationship with the church,
there existed facts
which objectively established that Mr Myeni was indeed the employee
of the church. If, from an objective perspective,
such jurisdictional
facts did not exist, the CCMA did not possess the requisite
jurisdiction to entertain the dispute, regardless
of what the
commissioner may have determined.'
[10]
Furthermore,
as was held in
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others
[7]
:
'The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court... "
[11]
As this is a review of a jurisdictional
ruling the reasonableness test applicable to review
applications does
not apply. This Court must consider the
issue of jurisdiction de novo and make an appropriate finding on
jurisdiction.
Background
[12]
On 6 September 2016 the Third Respondent
(DIRCO) gave the Applicant a notice to attend an inquiry by an
arbitrator in terms of section
188A of the LRA. The said notice
contained seven allegations of misconduct, which allegations
pertained to his alleged conduct
when the applicant was
stationed at the South African Permanent Mission to the United
Nations in New York, United
States of America.
[13]
The
allegations emanate from the authorisation / approval of payments of
medical expenses on the Applicant's behalf and other members
of
DIRCO. In terms of the allegations, he allegedly contravened
delegation 2.2 of the Financial Delegation Authority Guideline,
as
well as section 45(c) of the Public Finance Management Act
[8]
.
The Parties agreed to the section 188A of process under auspices of
the First Respondent as the ruling of the arbitrator in this
inquiry
has the same status as an arbitrational award.
[14]
After the withdrawal of the disciplinary
charges against the Applicant by the Third
Respondent, the Applicant
referred an unfair labour practice dispute
to the First Respondent claiming compensation. The Third respondent
did not attend the
conciliation of the dispute and the same was
referred for arbitration.
[15]
The arbitration was initially enrolled
for hearing on 6 October 2017 and, although the parties agreed to
hold a pre-arbitration
conference, the parties' respective legal
representatives could not agree on the finalisation of a pre
arbitration minutes.
[16]
The Third Respondent's legal
representatives indicated that they wanted to raise certain
jurisdictional arguments
in limine
and proceeded to hand up their
Statement of Response, wherein reference is made to certain
preliminary points. The Applicant prepared
a bundle of documents
consisting of 263 pages. No oral evidence was led at the arbitration.
[17]
After hearing arguments by both parties'
legal representatives, the Second Respondent issued her ruling.
Arguments
Before the Second Respondent
[18]
The Third
Respondent submitted that the First
Respondent lacked jurisdiction to
determine the referral and raised
numerous issues,
inter alia:
18.1
Res judicata / Lis pendens
-
The Third Respondent contended that the Applicant referred a
dispute to the Labour Court seeking relief for costs of its
application in the Labour Court as the presiding judge refused to
grant such costs in favour of the Applicant. It also contended
that
these costs are delictual in nature, i.e. entitlement to damages. The
issue is thus res judicata in so far as it is
already
been appealed by the Applicant, alternatively,
lis
pendens
as the Applicant may appeal
against the finding of the Labour Court. It therefore argued that the
First Respondent does not
have jurisdiction.
18.2
No cause of action disclosed - The Third
Respondent also indicated that there is no cause of action disclosed
by the Applicant's
claim for unfair labour practice. It stated
that the Applicant's claim falls short of meeting
the provisions
outlined in Section 186 (2) (a to d) of the LRA since
the Applicant cited aspects related to dignity and impairment in the
eyes
of the peers and subordinates, humiliation as a result of being
subjected to disciplinary action short of dismissal and monies
incurred by it, which are delictual claims to which the First
Respondent will not have jurisdiction to determine. It also contended
that whilst the Applicant was subjected to a pre-dismissal
arbitration the charges were withdrawn and no outcome was issued. It
also contended that the disciplinary action taken against the
applicant does not meet the criteria of "short of dismissal"
as such will only arise once a sanction has been issued.
18.3
Jurisdiction founded in delict - the
Third Respondent contended that the Applicant's claim does not find
jurisdiction before the
Council as its claim relates to
crimen
injuria
or malicious prosecution, in
which case the First Respondent will lack jurisdiction to determine.
It indicated that its case is
distinguishable and the Applicant's
claim for compensation is frivolous.
[19]
The Applicant submitted the following
summary of it's arguments at the Arbitration:
19.1
It
is argued that the Third Respondent's argument on compensation is
incorrect and referred to
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
[9]
where
it was decided that:
"Compensatory
relief in terms of the LRA is not strictly speaking a payment for the
loss of a job or the unfair labour practice
but in fact a monetary
relief for the injured feeling and humiliation that the employee
suffered at the hands of the employer.
Put differently, it is a
payment for the impairment of the employee's dignity. This monetary
relief is referred to as a
solatium
and it constitutes a
solace to provide satisfaction to an employee who's constitutionally
protected right to a fair labour practice
has been violated ..."
19.2
The Applicant indicated that it still
intends to appeal the Labour Court judgment issued against it and
contended that its claim
of unfair labour practice is referenced in
terms of its referral form to the Council, i.e. suspension / other
disciplinary action
short of dismissal and not for the costs in
respect of the Labour Court Application wherein there was no order as
to costs.
19.3
He argued that whilst the outcome of
disciplinary hearing follows a different litigation process and
remedy, withdrawal of a disciplinary
action can neither be reviewed
nor appealed. It also contended that his constitutional right to fair
labour practices was violated,
dignity impaired in the eyes of its
peers and subordinates and has thus suffered humiliation for being
subjected to disciplinary
action
short of dismissal. That he has
expended a substantial amount to defend himself against charges that
were without merit (since the
matter was ultimately withdrawn). He
further submitted that the conduct of the Third Respondent was unfair
and justifies that compensation
be awarded.
19.4
He further contended that cost should be
awarded against the Third Respondent.
[20]
The Second Respondent stated the
following in her ruling :
20.1
She accepts the Third Respondent's
contention that section 186 (2) of the LRA provides for
instances in which a claim
of Unfair Labour Practice can be brought
before the Council, i.e.
20.1.1
Promotion, demotion, probation
(excluding disputes about dismissals for reasons relating to
probation) or training of an employee
or relating to the provision of
benefits to an employee;
20.1.2
The unfair suspension of an employee or
any other disciplinary action short
of dismissal in respect of an employee;
20.1.3
A failure or refusal by an employer to
reinstate or re-employ a former employee in terms of any agreement;
and
20.1.4
An
occupational detriment, other than dismissal, in contravention of the
Protected Disclosure Act, 2000 (Act No. 26 of 2000), on
account of
the employee having made a protected disclosure defined in that Act.
20.2
According to submissions made by the
parties, a pre-dismissal arbitration action was initiated by the
Third Respondent against the
Applicant, which was later withdrawn
without any sanction being issued. The Applicant is not challenging
the sanction since none
was issued but it challenges the taking of
the disciplinary action as well as the withdrawal of the disciplinary
action which the
Applicant states constitutes an unfair labour
practice falling short of dismissal.
20.3
The Second Respondent was of the opinion
that the Applicant is seeking to alter the scope of the provisions of
Section 186 (2) of
the LRA in order to bring its claim within the
jurisdiction of the Council. She is not convinced that the Applicant
was able to
make out a case in its claim that the First Respondent
has jurisdiction to hear and determine his case of unfair labour
practice,
and accepts the Third Respondent's contention that
disciplinary action taken against the Applicant does not meet the
criteria of
disciplinary action
short
of dismissal
as provided in Section
186 (2) (b) of the LRA.
[21]
The Third Respondent contended that the
Applicant's claim does not find jurisdiction before the First
Respondent as its claim relates
to
crimen
injuria
or malicious prosecution.
She considered the decision in the
ARB
Electrical Wholesalers v Hibbert supra
case
on compensatory relief sought by the Applicant and stated that this
contention can only arise should it be found that the First
Respondent has jurisdiction to deal with the matter referred to it by
the Applicant. Section 157(1) of the LRA provides that:
"subject
to the Constitution and section 173 of the LRA, and except where this
act provides otherwise, the Labour Court has
exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined
by the Labour Court."
[22]
She submitted that the Applicant is
advised to approach the appropriate forum for a relief in its case as
the GPSSBC is not the
correct forum.
[23]
As the Second Respondent held that the
First Respondent does not have jurisdiction to determine this matter
this becomes a correctness
review and this Court must make a
determination
de novo.
[24]
This Court must consider all the
material before it and the Heads of Arguments by both counsels. No
oral evidence was led
at the arbitration nor
was any request made to lead any further evidence.
[25]
The Applicant makes the following
allegations in support of its unfair labour practice dispute before
this court:
25.1
The Applicant (Laubscher) contends that
the Third Respondent's (DIRCO) conduct constitutes an unfair labour
practice and he is accordingly
entitled to compensation for
DIRCO's conduct, particularly in view of the following:
25.1.1
Laubscher is a
senior
employee
of DIRCO and has been
employed for a period of 35 (thirty-five) years with an
unblemished disciplinary record
and
is a mere 30 (thirty) months away from retirement at this stage. He
has since retired from service.
25.1.2
DIRCO's conduct has violated
Laubscher's
constitutionally
protected right to fair labour practices;
25.1.3
Laubscher's
dignity
has been impaired
in the eyes of his
peers and subordinates and he has
suffered
humiliation
as a result of having
been
subjected to disciplinary action
short of dismissal;
25.1.14
Laubscher had to
expend
a substantial amount of money in order to defend himself
against charges that have no merit,
and clearly see from the fact that DIRCO withdrew all the
charges against him.
25.1.15
Laubscher's dignity has been impaired in
the eyes of his peers and subordinates and he has
suffered humiliation
as a result of having been subjected to
disciplinary action short of dismissal.
25.1.16
The Applicant seeks payment of damages
in the amount of R295,463.67 being the legal costs incurred and a
solatium
as
set out herein.
[26]
The Applicant argued as follows before this Court:
26.1
The
Second Respondent formed a view that the First Respondent lacked
jurisdiction because what the Applicant is essentially seeking
relates to a claim of
crimen injuria
or malicious prosecution and that
the Second Respondent did not formally rule on this issue.
This issue has, however,
been addressed in the review application
ex
abundantia cautela.
26.2
In
essence the Second Respondent ruled that the First Respondent did not
have jurisdiction to entertain the Applicant's claim as
it is
"res
judicata".
26.3That
the Second Respondent did not formally rule that the First Respondent
did not have jurisdiction to hear the Applicant's
matter since he did
not meet the criteria pertaining to disciplinary action
short of dismissal as provided for in Section
186 (2) (b) of the
Labour Relations Act, 66 of 1995 (LRA).
26.4The
Second Respondent was simply wrong in concluding that the subject
matter of arbitration was
"res
judicata"
as set down in her
ruling.
26.5
The Applicant seeks
solatium
for the
iniuria
meted out to him by the Third
Respondent by instituting the disciplinary action against the
Applicant in the fashion that it did.
26.6
The ruling by the Second Respondent is
wrong and should be reviewed.
26.7The
Second Respondent was of the wrong view that the Labour
Court has exclusive jurisdiction in the current
matter as she
referred to section 157(1) of the LRA in her ruling.
26.8
The dispute referred by the Applicant
was not about
disciplinary sanction
short of dismissal
but rather
disciplinary action short of
dismissal.
26.9
The Second Respondent's ruling was wrong
and the Applicant is entitled to the relief as set out in the Notice
of Motion.
[27]
The Third Respondent argued as follows:
27.1
The Applicant states that the Third
Respondent intended to subject him to disciplinary action but decided
to withdraw all such charges.
The disciplinary action had not
commenced. The Applicant had been presented with a notice to attend a
disciplinary enquiry and
an amended charge sheet was served on him.
The charges were withdrawn in March 2017 prior to any sitting and/or
the commencement
of the proceedings. The charges were never formally
put to the Applicant.
27.2
The
request for further particular was premature and does not
amount to the commencement of the disciplinary action.
27.3
Disciplinary action can
be scheduled only after a decision is taken to
institute disciplinary action.
Consequently, the decision to take
disciplinary action does not fall within the scope of
"other
disciplinary action short of dismissal’.
27.4
The Applicant's complaint falls within
the confines of malicious prosecution /
iniuria
/
delictual claim and the
First Respondent has no jurisdiction to arbitrate over
these disputes which are not unfair
labour practices.
27.5
The Applicant is attempting to
obtain his legal costs under the guise of "compensation"
which legal costs
have been refused in the Labour
Court under Case Number J2906/16.
27.6
The
issue was
res judicata
or
lis pendens
as
an appeal is pending against the Labour Court Judgment.
27.7
The
only pleaded ground relied on in the Statement of Case which appears
to fall within the scope of the LRA was that the Applicant's
dignity
had been impaired and that the suffered humiliations as a result of
having been subjected to disciplinary action short
of dismissal.
There was, however, no disciplinary action short of dismissal. There
was no cause of action made out in
terms of section
186(2) of the LRA.
27.7
The Applicant's claim was largely based
on delict for malicious prosecution and an alleged
iniuria.
This is not an unfair
labour practice in terms of the LRA.
27.8
The Applicant relied directly on the
Constitution for an alleged breach of his right to
fair labour practice.
27.9
The Second Respondent's
decision in finding that the First Respondent lacked
jurisdiction is a correct decision.
[28]
The Court must make its decision
de
novo
as to whether the
First Respondent had jurisdiction or not. The Third Respondent
instituted disciplinary action against
the Applicant and withdrew
same before the formal disciplinary action could proceed
and be finalized.
[29]
The First Respondent has jurisdiction in
terms of section 186 (2) (b) of the LRA to deal with
"any
disciplinary action short of dismissal".
This phrase was always confused with any disciplinary sanction short
of dismissal being suspension without pay, a final written
warning,
reprimands, caution and a discharge, fines all being sanctions short
of an employee being formally dismissed. However,
the word used in
this section is not
disciplinary
sanction
but
disciplinary
action.
There is a
difference in the meanings and outcomes of both
these processes.
[30]
In
the event of a Labour Court or the CCMA finding that a suspension was
unfair, it awards damages in addition to uplifting the
sanction. Such
damages were in numerous cases awarded as a
"solatium".
In the event the courts or the CCMA finding that any disciplinary
action was an occupational detriment per the Protected Disclosures
Act
[10]
, relief in the form
of reinstatement and/or damages are awarded as per section 193(a) of
the LRA.
[31]
As per section 194(4) of the LRA the
compensation awarded to an employee in respect of an unfair labour
practice must be just and
equitable in all circumstances but not more
than the equivalent of 12 month's remuneration.
[32]
Section 194 refers to compensation which
is in addition to any other amount which the employee is entitled to
in terms of any law,
collective agreement or contract of employment.
[33]
In terms of Section 158 of the LRA the
Court enjoys various powers and may make an appropriate order
including:
33.1
an award of compensation in any
circumstances contemplated in the LRA;
33.2
an award of damages in any circumstances
contemplated;
33.3
review the performance and purported
performance of any functions provided for in the LRA on any ground
that are permissible in
law.
[34]
Section 186(2) of the LRA states:
"An
unfair labour practice means any unfair act or omission that arises
between an employer and employee, involving:
(b)
"the unfair suspension of an employee or any other unfair
disciplinary action short of dismissal
in respect of an employee"."
[35]
It can be an act or omission, arising
out of an employment relationship between an employer and an
employee. It has to involve unfair
conduct (defined), or training of
an employee or relating to the provision of benefits, the
unfair suspension of an employee
or any other unfair disciplinary
action short of dismissal, failure or refusal to reinstate an
employee and occupation detriment
other than a dismissal. The catch
word being "involving". In other words it means involving
any other unfair disciplinary
action, short of dismissal. If
any other disciplinary action is taken which falls short of
an actual dismissal
the same falls within an unfair labour practice
definition. It is also separate from an unfair suspension dispute.
The taking of
disciplinary action constitutes an occupational
detriment and so does suspension.
[36]
John
Grogan
[11]
in analysing the
provisions of section 186 (2) (b) stated that:
"To
fall within the terms of Section 186(2)(b), disciplinary action
against an employee short of a dismissal must be disciplinary
both in
nature and in intent. Action is 'disciplinary' if it is aimed at
correcting errant behaviour for which the employee is
responsible.
So, for example, a counselling session or a warning for incapacity
does not fall within the scope of the definition.
The
definition is also concerned with disciplinary action. The decision
to hold a disciplinary enquiry does not fall within the
definition of
an unfair labour practice - the action must have been instituted
before an employee can refer a dispute relating
to disciplinary
action short of dismissal. The word action also suggests that
employees may not refer a dispute over the content
of an employer's
disciplinary policy. A dispute may be entertained only if the
employer actually takes action. Only the Labour
Court or, perhaps,
the High Court, has the power to interdict a disciplinary hearing. "
[37]
In this matter disciplinary action has
been taken and then the charges were withdrawn bringing it within the
scope or definition
of referring a dispute relating to
disciplinary action short of dismissal.
[38]
Thotlhalemaje
J in
Special
Investigation Unit v CCMA and Others
[12]
dealt
with a review application to set aside an arbitration award. The
issue was whether the failure to institute disciplinary proceedings
following upon a complaint and investigation against an employee
constituted an unfair labour practice within the meaning of section
186(2) of the LRA. The Commissioner not only found that such a
failure constituted an unfair labour practice, but she also awarded
the employee six months' compensation. The award was reviewed and
set aside by the Labour Court which found that the conduct
of
the Special Investigation Unit against the employee did not
constitute an unfair labour practice within the meaning of section
186 (2) (a) of the LRA.
[39]
The Court held that:
"To
the extent that there is no disciplinary action let alone any action
short of a dismissal the Commissioner equally had
no jurisdiction
over the matter as there was no dispute between the parties."
[13]
[40]
The dispute referred by the Applicant
was not disciplinary sanction short of dismissal but rather
disciplinary action short of dismissal.
This disciplinary action
short of a dismissal constitutes an unfair labour practice and may be
only brought by an employee against
an employer as it arises out of
an employment or a "live relationship". The elements will
be unfairness, arising from
a disciplinary action, which action must
have commenced; and such a disciplinary action must have the end
results of falling short
of a dismissal; example of it being
withdrawn. Every employee enjoys a constitutional right to fair
labour practice and our courts
need to define and/or expand on these
rights as provided for in the LRA.
[41]
Section 185 of the LRA reiterates the
right not to be unfairly dismissed or subjected to unfair labour
practice. The Labour Court
is established as a
court of law or equity and section 157 of the LRA defines the
jurisdiction of the Labour
Court. In section 158 of the
LRA there appears to be a distinct difference between compensation
and damages. Every employer has
the duty to ensure that an
employee is not unfairly dismissed nor subjected to an unfair labour
practice. The unfair act or omission
that arises between any employer
and an employee must involve those acts mentioned
in paragraphs (a) to
(d) of section 186(2) of the LRA. The words
"or any other unfair
disciplinary action short of dismissal in respect of an
employee"
is wide and
a disciplinary enquiry is an integral part of a disciplinary action.
It must arise from an employment relationship
as it refers to an
employee.
[42]
Section 3 of Schedule 8 being the Code
of Good Practice to the LRA relates to
"Disciplinary measures
short of Dismissal." This deals with
disciplinary rules, standards, expected conduct, forms and content of
disciplinary rules.
Section 3(3) thereof states that formal
procedures do not have to be invoked every time a rule is broken, or
a standard is not
met. More serious infringements or repeated
misconduct may call for a final warning or
other
action short of dismissal.
Dismissal
should be reserved for cases of serious misconduct or repeated
offences.
[43]
However, the wording in section
186(2)(b), speaks of any other
unfair
disciplinary action
short of
dismissal in respect of an employee as compared to
other
action short of
dismissal recorded
in Section 3 of Schedule 8 to the LRA. The former has reference to
any other unfair disciplinary action short
of dismissal distinct from
other action short of dismissal which refers more to a sanction as
reference is made to a final warning.
[44]
In this matter reference to a
disciplinary action can only refer to the Section 188A of the LRA
enquiry instituted. The Applicant
was a public servant subject to the
SMS Handbook, and in particular Chapter 7. The code advocates prompt
and speedy investigation
as well as it promotes prompt disciplinary
action. The Second Respondent was appointed to conduct an inquiry
into allegations about
the conduct of the Applicant as set out in the
amended charge sheet. The Applicant was advised of the inquiry
against him and consented
to the same as early as 6 September 2016.
Both parties had legal practitioners acting for them and incurred
costs with regards
to the same. In the ordinary course a party who
withdraws an action in court tenders the wasted costs occasioned by
such withdrawal.
Had this matter proceeded to finality and the
Applicant succeeded then he could have claimed costs in the GPSSBC.
However, the
charges were withdrawn which brought the disciplinary
action to an end, falling short of a dismissal.
[45]
It is common cause that the Third
Respondent instituted the section 188A of the LRA enquiry against the
Applicant. There was a request
for further particulars made by the
Applicant; there was a delay in furnishing the same; there was a
Labour Court Application to
stay or interdict the disciplinary
proceedings and then there was a withdrawal of the same filed in the
GPSSBC. The Labour Court
application became academic. This process
took over a year to complete whilst the Applicant suffered financial
prejudice as well
as reputational damages given his seniority.
[46]
The Third Respondent withdrew as
attorney of record in the Labour Court matter and did not file any
answering affidavit. The Applicant
obtained the requested order in
this Court on an unopposed basis. The Court
exercised its discretion in
terms of section 162 of the LRA and did
not award costs to the Applicant. The Applicant specified
that it does not
intend claiming those costs in this action but
rather the costs of engaging his legal practitioners to defend him in
the section
188A of the LRA pre-dismissal arbitration in
addition to damages for
solatium.
[47]
In
ARB
Electrical Wholesalers supra
the
Labour Appeal Court dealt with the meaning of compensation and
damages and distinguished the same.
"Compensation
being
a
solatium,
a
monetary
relief for the humiliation an employee suffered and
a
payment for the impairment of an
employee's dignity. Proof of loss is not necessary in a claim
for compensation
under LRA. The Court further said
that damages of payment for the loss suffered as a result
of a wrongful act
under the Employment Equity Act".
[48]
The Court further stated the following:
"[23]
Compensatory relief in terms of the LRA is not strictly speaking a
payment for the loss of a job or the unfair labour
practice but in
fact a monetary relief for the injured feeling and humiliation that
the employee suffered at the hands of the employer.
Put differently,
it is a payment for the impairment of the employee's dignity. This
monetary relief is referred to as a
solatium
and it
constitutes a solace to provide satisfaction to an employee who's
constitutionally protected right to fair labour practice
has been
violated. The
solatium
must be seen as a monetary offering or
pacifier to satisfy the hurt feeling of the employee while at the
same time penalising the
employer. It is not, however, a token amount
hence the need for it to be "just and equitable" and to
this end salary
is used as one of the tools to determine what is
"just and equitable".
[24]
The determination of the quantum of compensation is
limited to what is "just and equitable". The
determination
of what is "just and equitable" compensation in terms of
the LRA is a difficult horse to ride. There are
conflicting decisions
regarding whether compensation should be analogous to compensation
for a breach of contract or for a delictual
claim. In my view, and as
I said earlier, because compensation awarded constitutes a
solatium
for the humiliation that the employee has suffered at the hands
of the employer and not strictly a payment for a wrongful dismissal,
compensation awarded in unfair dismissal or unfair labour practice
matters is more comparable to a delictual award for non-patrimonial
loss. While a delictual action (i.e. action
injuriarum)
for
non-patrimonial loss actually suffered by the claimant. Hence, awards
made under a delictual claim for non patrimonial
loss may serve
as a guide in the assessment of just and equitable compensation under
the LRA.
In
Minister
of Justice and Constitutional Development v Tshishonga
[14]
(Tshishonga),
the Labour Appeal Court in an award of
solatium
referred
to the delictual claim made under the action
iniuriarum
for
guidance in what would constitute just and equitable compensation for
non-patrimonial loss in the context of an unfair labour
practice. It
stated that since compensation serves to rectify an attack on one's
dignity, the relevant factors in determining the
quantum of
compensation in these cases included but were not limited to:
"...
the nature and seriousness of the
iniuria,
the
circumstances in which the infringement took place, the behaviour of
the defendant (especially whether the motive was honourable
or
malicious), the extent of the plaintiff's humiliation or distress,
the abuse of the relationship between the parties, and the
attitude
of the defendant after the
iniuria
had taken
place ".
[49]
The
Labour Appeal Court in
Minister
of Justice and Constitutional Development v Tshishonga
[15]
held
that compensation has to be just and equitable but cannot
be more than the
equivalent of
12 months' remuneration.
[50]
The Court further stated:
"The
question thus is what is just and equitable in circumstances where
the compensation is for non-patrimonial loss. In this
connection,
some assistance can be gained from the jurisprudence relating to the
award of a
solatium
in terms of the
action injuriarum.
In
these cases, the award is subject to one exception of a
non-patrimonial nature, and is in satisfaction of the person who has
suffered an attack on their dignity and reputation or an onslaught on
their humanity. The exception is for the amount relating
to the costs
of R177,000.00 which were incurred by the Applicant in having to
defend himself, and which are patrimonial by nature.
Factors regarded
by the court as relevant to the assessment of damages generally
included the nature and seriousness of the
iniuria,
the
circumstances in which the infringement took place, the behaviour of
the defendant (especially whether the motive was honourable
or
malicious), the extent of the Plaintiff's humiliation or distress,
the abuse of a relationship between the parties and the attitude
of
the defendant after the
iniuria
had taken place. It should be
noted that this list is not exhaustive in that specific forms of
infringement have their own peculiar
factors to consider. The damages
that were awarded was the sum of R177,000.00 for legal costs incurred
and the sum of R100,000.00
for
solatium."
[51]
The
Applicant sought reimbursement of his costs incurred in him
defending the charges brought in the section 188A of the LRA
enquiry and not the costs in bringing its action in this
Court under Case Number J2906/16. This dispenses with the
issue of
res judicata
or
lis pendis
as
raised in the ruling.
Conclusion
[52]
The
institution of the section 188A of the LRA enquiry or a pre-dismissal
arbitration falls within the definition of disciplinary
action
short of a dismissal of an employee as set out in section 186
(2)(b) of the LRA.
[53]
The
service of the amended charge sheet constituted and confirmed the
taking of disciplinary action. The withdrawal of the charges
confirmed that the same lacked merit and may have been frivolous or
vexations or even malicious. There was a considerable delay
from the
date of finalization of the investigation and the taking of the
disciplinary action. The Applicant claimed the allegations
made were
baseless and lacked merit. There were inconsistencies in the
application of the disciplinary code and it may have bordered
on
malicious prosecution. It is quite clear that the Applicant suffered
patrimonial loss, occasioned by the delay in the finalisation
of the
disciplinary enquiry and incurred legal costs in the GPSSBC before
the same was withdrawn. Any legal costs relating to the
institution
of the action in this Court under Case Number J2906/16 is excluded
from any compensation awarded herein.
[54]
It
is trite that discipline must be brought in a prompt fashion. Failure
to do so annihilates the disciplinary process and as a
necessary
consequence thereof that the charges against the employee could fall
away in totality. In the unreported judgment of
Fritz
Letsoni Mohlala v The South African Post Office and Others
[16]
,
the
Labour Court held that the delay in the disciplinary process was
unfair and that justice delayed is justice denied.
[55]
It is common cause that the Applicant
was never suspended and still rendered his duty daily pending the
disciplinary enquiry which
was withdrawn. The Applicant questioned
that if the allegations against him were so serious, it is indeed
questionable why he was
given his daily tasks to fulfil and why he
was allowed to continue to be employed in a senior and influential
level. The Applicant
found it mind-boggling why the Third Respondent
seemed hell-bent in proceeding with what he called a travesty up and
until the
charges were withdrawn.
[56]
In
South
African Post Office Limited v Soman N.O
.
and
Others
[17]
,
Cele
J stated:
"[22]
The compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice, may be awarded
is not aimed at
making good the patrimonial loss that she has suffered. The concept
of loss or patrimonial loss may play a role
to evince the impact of
the wrong upon the employee and thus assists towards the
determination of appropriate compensation, but
compensation under the
LRA is a statutory compensation and must not to be confused with a
claim for damages under the common law,
or a claim for breach of
contract or a claim in delict. Hence, there is no need for an
employee to prove any loss when seeking
compensatory relief under the
LRA.
[23]
Compensatory relief in terms of the LRA is not strictly
speaking payment for the loss of a job or the unfair labour practice
but in fact a monetary relief for the injured feeling and humiliation
that the employee suffered at the hands of the employer.
Put
differently, it is a payment for the impairment of the employee's
dignity. This monetary relief is referred to as a
solatium
and
it constitutes a solace to provide satisfaction to an employee who's
constitutionally protected right to fair labour practice
has been
violated. The
solatium
must be seen as a monetary
offering or pacified to satisfy the hurt feeling of the employee
while at the same time penalising the
employer. It is not however, a
token amount hence the need for it to be "just and equitable"
and to this end salary is
sued as one of the tools to determine what
is "just and equitable".
[57]
The Applicant was a career diplomat and
spent almost his entire working career serving the Third Respondent.
He had some 30 months
to go to retirement when he was subjected to
this disciplinary action. By the time this matter was heard in this
court his counsel
confirmed that he had already retired from service.
However, he suffered a great degree of humiliation, loss of dignity
and reputational
damages - all at the tail end of his career. He
stated that he was for the first time in his career subjected to
drastic disciplinary
action which was then withdrawn against
him. It is quite clear that he suffered damages and is entitled
to be compensated
for such damages as he was put through an
ordeal which was uncalled for. The Third Respondent is liable to pay
the Applicant
a solatium.
[58]
The Applicant incurred legal expenses in
the GPSSBC in pursuing his defence to this action which he was
entitled to do. He
was entitled to engage the services of a legal
practitioner who instructed an Advocate, given the complexity of the
matter. The
Third Respondent also instructed an advocate
to represent them whilst the state attorney acted for the Third
Respondent. The Applicant furnished statement of accounts from
his attorneys, which puts the costs at R295,463.67
for
attorney and client costs. However, this amount included the costs
incurred in Case Number J2906/16 which was disallowed. This
court
cannot speculate on the actual costs incurred in the arbitration
matter without proper documentary proof and will apply the
most
appropriate tariff in reimbursing the Applicant for these costs
which will include his counsel's fees.
[59]
The Applicant will be entitled to his
legal costs excluding any costs which became the subject matter in
the Labour Court
under Case Number J2906/16
wherein the Court exercised its discretion in terms
of section 162
of the LRA and did not allow the same. The
applicant stated that he is not claiming these costs in this action
and requests that
his costs incurred in the GPSSBC be paid to him
obviously at a rate higher than prescribed - being
his attorney
and client costs. The Third Respondent's disciplinary
action was withdrawn and the taking of this disciplinary action
placed the
Applicant in a predicament and he had to defend himself.
The Third Respondent is a responsible State Department and would have
known better than to have treated the Applicant unfairly in the
manner it did.
[60]
This court needs to make an order which
is just, fair and equitable but not exceeding 12 months' compensation
calculated at the
Applicant's earnings per section 198 of
the LRA in respect of the
solatium
claimed. The Applicant earned
R997,476.00 per annum at the time of the commission of the unfair
labour practice as per a salary
advice submitted.
[61]
The institution of the section 188A of
the LRA inquiry by an Arbitrator constituted
the taking of disciplinary
action short of dismissal in terms of
section 186(2)(b) of the LRA. The same was unfair and
the Third Respondent
committed an unfair labour practice
against the Applicant who is entitled to be compensated for the same
as set out herein.
[62]
The Second Respondent's jurisdictional
ruling was wrong and the First Respondent enjoys the jurisdiction to
deal with the unfair
labour practice lodged in terms of section
186(2)(b) of the LRA relating to the unfair disciplinary action short
of a dismissal
of an employee. An appropriate order for the payment
of the costs of the section 188 A of the LRA inquiry will
be
on Scale D of the Magistrate's Court Tariff plus
counsel's fees incurred which costs are to be taxed by
the First Respondent.
[63]
The Second Respondent's ruling is
incorrect and is to be reviewed and set aside. This Court considered
the matter
de nova
and
in terms of the Court's findings it will be fair and equitable to
dispose of this matter in this Court which has
all the
facts before it rather than to send it back to the Third Respondent
to be dealt with afresh by another arbitrator other
than the
Second Respondent as this dispute arose nearly 4 years ago.
[64]
An appropriate, just, fair and equitable
compensation in respect of solatium will be the sum of R498,738.00
which is the equivalent
of six (6) month salary.
[65]
This court has in terms of section 162
of the LRA a discretion in awarding costs and finds no reason why the
costs should not follow
the order.
[66]
In the premises, the following order is
made:
Order
1.
The Jurisdiction Ruling dated the 8th of
October 2017 issued by the Second Respondent is reviewed and set
aside.
2.
The Third Respondent is to pay the
Applicant the amount of R498,738.00
3.
The Third Respondent is to pay the taxed
costs incurred by the Applicant in defending the Section 188A
of the LRA Inquiry
on Scale D of the Magistrates Court Tariff
which costs includes counsel's fees.
4.
The Third Respondent is to pay the costs
of this Application.
Anandroy
Ramdaw
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate P Bekke
Instructed
by: Gildenhuys
Malatji Incorporated
For
the First Respondent: Advocate L. Pillay
Instructed
by:
State Attorney, Pretoria
[1]
No. 66 of 1995, as amended.
[2]
Unreported decision. [2017] ZALCJHB 87. Case number: JR745/16.
(Delivered: 8 March 2017).
[3]
See:
Asara
Wine Estate and Hotel (Ply) Ltd v Van Rooyen and Others
(2012)
33 ILJ 363 (LC) at para 23;
Hickman
v Tsatsimpe NO and Others
(2012)
33 ILJ 1179 (LC) at para 10;
Protect
a
Partner
(Pty) Ltd v Machaba-Abiodun and Others
(2013)
34 ILJ 392 (LC) at paras 5-6;
[4]
(2013) 34 ILJ 2662 (LC) at para 22. See also:
Kukard
v GKD Delkor (Ply) Ltd
(2015)
36 ILJ 640 (LAC) at para 12;
Phaka
and Others v Bracks NO and Others
(2015)
36 ILJ 1541 (LAC) at para 31.
[5]
See:
SA
Commercial Catering and Allied Workers Union v Speciality Stores Ltd
(1998)
19 ILJ 557 (LAC) at para 24;
Zeuna-Starker
Bop (Pfy) Ltd v National Union of Metalworkers of SA
(1999)
20 ILJ 108 (LAC) at para 6.
[6]
(2015) 36 ILJ 2832 (LAC) at para 27.
[7]
(2008) 29 ILJ 2218 (LAC) at para 40.
[8]
No. 1 of 1999.
[9]
ARB
Electrical Wholesalers (Pfy) Ltd v Hibbert
[2015]
11 BLLR 1081 (LAC.
[10]
No. 26 of 2000.
[11]
Grogan Employment Rights 1st ed (Juta & Co, Cape Town 2013) at
135-6.
[12]
Unreported decision. Case No: JR509/14. Delivered on: 21 April 2017.
[13]
Ibid at para 16.
[14]
(2009) 30 ILJ 1799 (LAC).
[15]
Ibid at para at para 18.
[16]
Unreported decision. Case no: JR 737/2010. Delivered on: 10 June
2013.
[17]
Unreported decision. Case no: JR 1368/12. Delivered on: 25 February
2016.