Dear Colleagues, Associates, Clients and readers, Now I need to agree with Commissioner Boyce: A fresh approach to section 186 (2)(b). In a Nohe & another / Maswika Stones t/a Tombstones Land (2010) 19 CCMA 6.4.1 commissioner Boyce took a fresh approach to the interpretation of a suspension in terms of section 186 (2)(b). The applicants claimed that they have been unfairly suspended after the employer discovered cash shortages. The suspension of the two employees was on full pay and pending a disciplinary hearing but they persisted that their suspensions constitute an unfair labour practice. Commissioner Boyce interpreted section 186 (2)(b) of the Labour Relations Act as follows: “the “unfair suspension” embodied in section 186(2)(b) of the Act precedes the words “or any other disciplinary action short of dismissal in respect of an employee”. The word “other” in the said section can only mean that the Legislature regards “unfair suspension” as but one type of “unfair disciplinary action short of dismissal”. Had the Legislature intended that any suspension could (if unfair) amount to an unfair labour practice, it would surely have dealt with suspension on its own in a sub-paragraph of section 186(2). The Legislature, in other words, would not have linked the words “unfair suspension” to “unfair disciplinary action short of dismissal” by using the words “any other”, if it did not regard the “unfair suspension” referred to in section 186(2)(b) of the Act as but one type of “unfair disciplinary action short of dismissal”. What this means is that a suspension which is not “disciplinary action short of dismissal” cannot amount to an unfair labour practice in terms of section 186(2)(b) of the Act. The “disciplinary action” which is envisaged by section 186(2)(b) of the Act, is a form of punishment, or a penalty (such as a written warning, suspension from work for a period of time, demotion, etc.) which is imposed on an employee by an employer for some sort of misconduct. In the present matter suspensions were not punitive suspensions, and they, consequently, did not amount to “disciplinary action”. The applicants’ suspensions were procedural steps pending their disciplinary hearings... The said suspensions were, therefore, not suspensions as contemplated by section 186(2)(b) of the Act since they cannot possibly fall into the category of “unfair disciplinary action short of dismissal”. The CCMA has found itself in the very unusual position of being the ‘real’ respondent in application proceedings in the Labour Court. The CCMA’s Supply Chain Manager was placed on special leave pending his possible precautionary suspension on full pay. Being a member of senior management it was believed he needed to be absent from the offices during a further investigation into alleged procurement irregularities. When he applied to the Labour Court for various orders he had not been presented with any allegations. He sought a final order declaring that his suspension was invalid and an unfair labour practice. Acting justice Sean Snyman in Mayaba v Commission for Conciliation Mediation And Arbitration and Another (J2204/2014) [2014] ZALCJHB 364 (19 September 2014) refused to grant any orders against the CCMA and awarded costs to the CCMA as well. Given the thoroughness of the reasons and the references to numerous earlier cases it has been decided to repeat the entire judgment but will footnotes omitted and hyperlinks included, courtesy of Saflii. Introduction [1] Although the name of the CCMA often appears on judgments in this Court, this matter is one of the few occurrences where the CCMA has actually come before this Court not in capacity as body responsible for dispute resolution, but as the employer itself. It is rather a unique experience. This being said, the applicant, as an employee of the CCMA (being the current first respondent), has brought an urgent application in terms of which the applicant seeks to challenge his suspension by the first respondent. The applicant is seeking final relief, in the form of an order declaring that his suspension by the first respondents was invalid and an unfair labour practice. The applicant then seeks consequential relief in the form of an order that his suspension be set aside with immediate effect pending the finalization of possible disciplinary proceedings against him. [2] The applicant, in his notice of motion, has also asked for a mandamus against the first respondent, in which he seeks an order to enroll the applicant’s unfair labour practice dispute and unfair discrimination disputes that he referred to the CCMA for conciliation in terms of the LRA, on 15 August 2014, for hearing within the 30 day conciliation time limit prescribed by the LRA. The applicant brought this part of the application because the CCMA only enrolled conciliation on 9 October 2014 in respect of these disputes. However, and having regard to the fact that this matter only came before this Court on 18 September 2014, the 30 day time limit has in any event already passed. Mr Malatsi, representing the applicant, conceded that this relief is no longer competent, and the applicant no longer persists with the same. I shall accordingly not consider this issue. [3] The applicant has also sought a mandamus in the form of an order that any disciplinary proceedings against him must not be allowed to proceed until the other employees of the first respondent mentioned in the forensic report relating to this matter are also ‘fairly suspended’. Although Mr Malatsi conceded that the relief sought in this paragraph has no foundation in law, he did not abandon the same, and consequently I shall deal with this relief sought as well in this judgment. [4] As touched on above, these are motion proceedings in which final relief is sought. The consequence is that in the case of any factual disputes, these factual disputes must be resolved on the basis of the principles enunciated in Plascon Evans Paints v Van Riebeeck Paints. In Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another this test was articulated as follows: ‘The applicants seek final relief in motion proceedings. Insofar as the disputes of fact are concerned, the time-honoured rules …. are to be followed. These are that where an applicant in motion proceedings seeks final relief, and there is no referral to oral evidence, it is the facts as stated by the respondent together with the admitted or undenied facts in the applicants’ founding affidavit which provide the factual basis for the determination, unless the dispute is not real or genuine or the denials in the respondent’s version are bald or uncreditworthy, or the respondent’s version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected.’ [5] A proper consideration of the affidavits in this matter fortunately reveals that very little facts are in dispute. Most of the factual matrix giving rise to this application are either undisputed, or common cause. The disputes however arise in the context of what inferences should be drawn from these facts. In my view, nothing the respondents have said in their answering affidavit can be considered to be bald or fictitious or implausible or lacking in genuineness. The issues raised by the respondents in the answering affidavit are properly raised, with the necessary particularity. There is no basis or reason for me to reject anything said in the answering affidavit. I thus intend to determine this matter on the basis of the admitted (common cause) facts as ascertained from the founding affidavit, the answering affidavit and the replying affidavit, and as far as the disputed facts and inferences are concerned, on what is stated in the respondents’ answering affidavit. Urgency and jurisdiction [18] The Court in Gcaba v Minister for Safety and Security and Others said that jurisdiction means ‘the power or competence of a court to hear and determine an issue between parties’. Therefore, and where urgent intervention in the suspension of an employee is sought, I accept that the Labour Court has the competence and power in terms of Section 158 to do so. The Court in Booysen v Minister of Safety and Security and Others specifically dealt with these powers and held that ‘…. the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.’ In Member of the Executive Council for Education, North West Provincial Government v Gradwell the Labour Appeal Court confirmed the jurisdiction of the Labour Court to entertain urgent applications specifically relating to the challenge of suspensions, but said that it should only be entertained the case of ‘…. extraordinary or compellingly urgent circumstances’. Therefore, and in deciding whether to afford the applicant relief, I must consider where there are any extraordinary circumstances present. I will deal with this hereunder. [19] Where it comes to urgency in general, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others held: ‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self created when seeking a deviation from the rules.’ [20] Based on that the Court said in Jiba, and where it concerns the general Rule 8 considerations of urgency, I am satisfied that the applicant has made out a sufficient case of urgency. The applicant was only actually suspended on 1 September 2014. The period of some 7 working days taken for the applicant to take advice on what he needed to do and for this application to be prepared, settled, signed, served and filed, is not unduly excessive, and can be considered to be sufficiently prompt action. I further point out that both parties have had the opportunity to fully state their respective cases in the pleadings and in argument, and it is in the interest of justice that this issue now be finally determined. I thus conclude that there are sufficient grounds to finally determine this matter as one or urgency. But whether exceptional circumstances indeed exist is an entirely different matter. The issue of a clear right [21] From the outset, I specifically asked Mr Malatsi to indicate to me where the applicant’s clear right in this matter lay. In other words, on what legal basis did the applicant challenge his suspension? According to Mr Malatsi, the applicant has a right to be fairly treated in terms of his contract of employment. Mr Malatsi stated that general considerations of fairness and equity must apply where employees such as the applicant are suspended, and this entails that such employees, prior to suspension, must be presented with proper particulars and information about the allegations of misconduct against them, they must be given a proper and fair opportunity to be heard, and then only, if the employer still decides to suspend the employee, they must be given proper and substantiated reasons for having been suspended. According to Mr Malatsi, this right to ‘fairness’ must be inferred or infused into the employment contract by virtue of the provisions of the LRA and the Constitution. In short, the case of the applicant was that applicant has the right to fairly treated when being suspended, and in casu, this did not happened. [22] In the current matter, it is undisputed that the suspension of the applicant was instituted as a precautionary measure. It is equally undisputed that currently, an investigation is still ongoing and that no actual charges have as yet been brought against the applicant. The first respondent has said, and I accept this, that the applicant is suspended because it was feared that his presence at work could interfere with or hamper or prejudice the ongoing investigation. The aforesaid being the case, and in deciding whether the applicant has the right to fairness prior to suspension as he contends, it must firstly be considered what exactly the nature of precautionary suspension is. [23] Precautionary suspension is not discipline. By implementing precautionary suspension on an employee, the employer is not disciplining the employee. The only instance where suspension is discipline of an employee is where the suspension is imposed as an actual disciplinary sanction imposed pursuant to disciplinary proceedings. Where suspension is imposed as a precautionary measure, this is a prelude to possible disciplinary action, but not disciplinary action itself. Concluding remarks [56] I remain concerned with the plethora of cases that come before the Labour Court brought by senior employees in the public sector to challenge their suspensions on an urgent basis, which in essence amount to bypassing the prescribed dispute resolution processes in the LRA for such kind of disputes. I fully align myself with the following statements made by the Court in Mosiane v Tlokwe City Council: ‘A worrying trend is developing in this court in the last year or so where this court’s roll is clogged with urgent applications. Some applicants approach this court on an urgent basis either to interdict disciplinary hearings from taking place, or to have their dismissals declared invalid and seek reinstatement orders. In most of such applications, the applicants are persons of means who have occupied top positions at their places of employment. They can afford top lawyers who will approach this court with fanciful arguments about why this court should grant them relief on an urgent basis. An impression is therefore given that some employees are more equal than others and if they can afford top lawyers and raise fanciful arguments, this court will grant them relief on an urgent basis. All employees are equal before the law and no exception should be made when considering such matters. Most employees who occupy much lower positions at their places of employment who either get suspended or dismissed, follow the procedures laid down in the Labour Relations Act 66 of 1995 (the Act). They will also refer their disputes to the CCMA or to the relevant bargaining councils and then approach this court for the necessary relief.’ [57] In Gradwell, the Court in fact expressed its doubts whether the Labour Court would be competent or have jurisdiction to grant final declaratory relief in declaring a suspension unfair, where the Court said: ‘I am therefore of the view that the judge a quo ought not to have exercised his discretion to grant the declarator. I doubt also whether he had the legal competence to do so. Without the benefit of legal argument, however, I hesitate to pronounce on the jurisdictional question whether the existence of the arbitration remedy precludes relief in the form of a declarator in all cases.’ I in the past dealt with this issue on the basis of having heard detailed legal argument on an opposed basis by two parties, in the judgment ofRobert Madzonga v Mobile Telephone Networks (Pty) Ltd where I said: ‘The issue is not one of jurisdiction. It is one of competence. As I have set out above, the Labour Court will by virtue of the provisions of Section 158(1) of the LRA always have jurisdiction to interdict any form of disciplinary proceedings or grant interim relief. …. The above authorities make it clear that the issue of the alternative remedy of the referral of the dispute to the CCMA or bargaining council, and this remedy is actually prescribed by law, is an important consideration mitigating against not granting relief in urgent applications concerning the uplifting of suspensions. In my view the issue is actually more than just the existence of an alternative remedy. The simple reason for this is that the alternative remedy is not just an available alternative remedy but a statutory prescribed alternative remedy. This is where the issue of competence comes in. The primary consideration must always be that proper effect be given to the clear terms of the statute, and for the Labour Court to entertain this issue would be contrary to the dispute resolution process clearly prescribed by such statute which should only be done with great circumspection and reluctance. In my view, and as a matter of principle, the Labour Court should only entertain urgent applications to declare suspensions unfair or unlawful or invalid on the basis of interim relief pending the final determination of the issue in the proper prescribed forum, and even then compelling considerations of urgency and exceptional circumstances have to be shown by an applicant for such relief. Whether or not compelling considerations of urgency and exceptional circumstances exist is a call the Court has to make on a case by case basis on the facts of the matter.’ [58] In the light of all the above, the applicant has failed to establish the existence of a clear right. The applicant has also failed to show that he has no suitable alternative remedy. The applicant has not referred a suspension dispute to the CCMA, when the actual challenge of such suspension is firmly founded in fairness. The applicant has shown no exceptional circumstances or compelling considerations of urgency to exist, which would justify intervention by this Court. The applicant’s application must thus fail. [59] This then only leaves the issue of costs. The applicant has elected to approach the Labour Court on an urgent basis when it must have been clear there was no basis for doing so. The applicant was legally assisted from the outset, and clearly knew he could and should pursue his dispute to the CCMA. The applicant in my view designed his case so as to try and avoid the application of the provisions of the LRA, despite still wanting to rely on the general principle of fairness before the Labour Court. Added to this, the bulk of the annexures to the applicant’s founding affidavit and replying affidavit are close on 200 pages of irrelevant documents. Volume does not create merit. There is accordingly simply no reason why costs should not follow the result in this matter. Order [60] I accordingly make the following order: The applicant’s application is dismissed with costs. ____________________ Snyman AJ Acting Judge of the Labour Court Kind regards Charles Kinnear Employment & Labour Law Practitioners, Litigations (Labour & Civil) Training, and Development. Deputy Chairman: PSIRA Compliance Committee (Western Cape) & Various other Compliance Committees in the Western Cape Landline: 021 - 2001339 Mobile: 072 313 8344 Fax no: 086 537 8007
Posted on: Thu, 02 Oct 2014 06:51:18 +0000
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