Transcript Document

INTERDICTING SUSPENSION
AND THE DISCIPLINARY
ENQUIRY: The Role of the
Labour Court
Shamima Gaibie
Cheadle Thompson & Haysom Inc.
Suspensions
DEFINITION OF UNFAIR LABOUR PRACTICE
•
Section 186(2)(b) of the LRA defines an unfair labour practice as ‘the unfair
suspension of an employee or any other unfair disciplinary action short of
dismissal’.
•
There are 2 types of suspensions that fall within the purview of section
186(2)(b): preventative suspensions and punitive suspensions. The 1st type
refers to suspensions that are implemented in the context of allegations of
misconduct prior to any finding of guilt, and the 2nd type refers to suspensions
that are implemented as a sanction after a finding of guilt.
•
A punitive suspension is usually only implemented in circumstances where the
employment contract, disciplinary code, collective agreement or legislation
allows for it.
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•
The Labour Court has held that disciplinary or operational transfers and
suspensions are employment or labour relations matters, not administrative
acts: SAPU & another v National Commissioner of the South African Police
Service & another [2006] 1 BLLR 42 (LC). This view is supported by the
Constitutional Court in Chirwa v Transnet and Others [2008] 2 BLLR 97 (CC).
•
This presentation will focus on preventative suspensions in the main.
•
Like any other labour practice, the implementation of a valid suspension must
meet the requirements of substantive and procedural fairness.
THE DETRIMENTAL EFFECT OF SUSPENSIONS
•
The Labour Court has from time to time recognised that suspension from
employment has a detrimental impact on an employee’s reputation,
advancement, job security and fulfilment:
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– SAPO Ltd v Jansen Van Vuuren NO & others [2008] 8 BLLR 798 (LC);
– HOSPERSA & another v MEC for Health, Gauteng Provincial Government
[2008] 9 BLLR 861 (LC).
•
The Labour Court has also from time to time recorded its displeasure at the
manner in which and the reasons for which suspensions are effected. For
instance, in Mogothle v Premier of the North-West Province and Another [2009]
4 BLLR 331 (LC) at para [38], Van Niekerk J observed that there is a –
“..... trend apparent in this court in which employers tend to regard suspension
as a legitimate measure of first resort to the most groundless of misconduct, or
worse still, to view suspension as a convenient mechanism to marginalise an
employee who has fallen from favour.”
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•
Mogothle also cites the dictum of the SCA in Minister of Home Affairs & others v
Watshenuka & another 2004 (4) SA 326 (SCA) at para [27], where Nugent JA
emphasised the link between the freedom to engage in productive work and the
right to dignity in the following terms:
“The freedom to engage in productive work – even where that is not required
in order to survive – is indeed an important component of human dignity ... for
mankind is pre-eminently a social species with an instinct for meaningful
association. Self esteem and the sense of self-worth – the fulfilment of what it
is to be human – is most often bound up with being accepted as socially
useful.”
SUBSTANTIVE AND PROCEDURAL FAIRNESS
•
Both the HOSPERSA and SAPO cases confirm that suspensions must be based
on fair reasons and must be implemented pursuant to a fair procedure.
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•
In Mogothle, Van Niekerk J indicated that suspensions must, as a minimum
requirement satisfy the following 3 criteria - the first two relate to substantive
fairness and the third relates to procedural fairness –
– The employer must have a justifiable reason to believe, prima facie at least,
that the employee has engaged in serious misconduct (“1st criteria”);
– There is some objectively justifiable reason to deny the employee access to
the workplace based on the integrity of any pending investigation into the
alleged misconduct, or some other relevant factor that would place the
investigation or the interests of affected parties in jeopardy (“2nd criteria”);
and
– The employee is given the opportunity to state a case or to be heard before
any final decision to suspend is made (“3rd criteria”).
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JUSTIFIABLE REASON TO BELIEVE THAT EMPLOYEE HAS ENGAGED IN
SERIOUS MISCONDUCT
•
In general an employee is entitled to know the allegations of misconduct on
which the suspension is premised. The employer, as indicated above, must
demonstrate that it has a justifiable reason to believe that the employee has
engaged in serious acts of misconduct.
•
In other words, the justifiability of a suspension invariably rests on the existence
of a prima facie reason to believe that the employee committed serious
misconduct: MEC for Education: North West Provincial Governement v
Errol Randal Gradwell (LAC - 06.03.2012 – unreported at para [28])
•
In Phutiyagae v Tswaing Local Municipality (2006) 27 ILJ 1921 (LC), the
court held that it is not necessary to formally inform the employee in writing of
the allegations of misconduct that precipitated the suspension, in circumstances
where knowledge of the allegations are apparent from the surrounding
circumstances.
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•
However, where such circumstances do not exist, the employer will not satisfy
this requirement if it articulates the allegations against the employee in broad,
vague and general terms. So for instance, where an employer suspends an
employee from work pending the outcome of investigations into complaints of
alleged “maladministration”, or where the only reason for the employee’s
suspension is premised on the employer’s subjective notion that the employee
“could not be trusted”, such a suspension will be invalid and unfair –
– Marcus v Minister of Correctional Services & others [2005] 2 BLLR 215
(SE).
JUSTIFIABLE REASON TO DENY EMPLOYEE ACCESS TO THE WORKPLACE
•
Only once the 1st criteria has been established objectively, will it be possible to
meaningfully engage in respect of the 2nd criteria.
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“The nature, likelihood and the seriousness of the alleged misconduct will
always be relevant considerations in deciding whether the denial of access to
the workplace was justifiable” : Gradwell at para [28].
•
Each case of suspension must be considered on its own merits. The reasons
for denying an employee access to the workplace from one case to another will
always differ.
•
Sometimes the seriousness of the misconduct may, on its own, suffice as a
justifiable reason for denying the employee access to the workplace. Consider
for instance allegations of dishonesty or fraud by a senior member of staff. The
seriousness of the misconduct and the seniority or the authority of the
personality involved in the misconduct might impede the smooth running of the
business.
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•
For instance, in Gradwell the allegations of misconduct were serious and
related to the lack of accountability of funds paid, the unlawful conversion of a
Care Centre into a public school; unauthorised and wasteful expenditure, and
the possibility of inappropriate personal financial gain by the employee. In
addition, the employee had virtually unlimited authority over his subordinates
and access to all documentation in relation to the Department’s dealings with the
Care Centre, and the employee had been accused of abusing his managerial
authority by pressurising subordinates to sign document. In this context, the
LAC accepted as reasonable and rational, the MEC’s belief that the employee’s
continued presence at the workplace might jeopardise the process of the
investigation (para [19] of the judgment).
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•
In Phutiyagae v Tswaing Local Municipality (2006) 27 ILJ 1921 (LC), the
Municipality contended that a proper investigation into the alleged acts of
misconduct could not be conducted whilst the applicant was in the office, given
that he was the manager of the division to be investigated and his subordinates
may have to give evidence in the investigation. The Court regarded this as a
rational basis upon which the Municipality was entitled to suspend the
employee.
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•
In Hlubi and others v Universal Service & Access Agency of SA [2012] JOL
28886 (LC), Basson J simply inferred that the second criteria referred to in the
Mogothle judgment is automatically established if there are allegations of
serious misconduct (and nothing more). She stated the following in this regard
at para [12]:
“The justification put forward by the first respondent for suspending the
applicants, namely, that their continued presence in the workplace could
potentially jeopardise the investigation, is reasonable in light of the serious
nature of the charges brought against them.”
•
The charges of misconduct in the Hlubi matter included contraventions in the
process of the award of tenders in respect of irregular and unauthorised
payments running into millions of rands.
•
It is my view that the Hlubi judgment is incorrect in making such an inference. It
is possible, depending on the seriousness of the charges, to justify the
suspension of the employees but it must be done separately and on the basis of
the 2nd criteria in the Mogothle judgment.
Suspensions
•
For instance, the central or managerial role that such employees may have
played in the tender processes could make the investigation of their conduct
untenable, or there may be a basis on which the employer could argue that their
authority in the process gives rise to a reasonable apprehension of fear that the
misconduct may be repeated. But in the absence of such aversions, it is
improper to assume that suspension is appropriate in these circumstances.
•
There must therefore be a clear reason why the employee’s suspension is
necessary, independent of any contention relating to the seriousness of the
misconduct. This view is supported by the court in Mogothle at para [31] in
which the views of Halton Cheadle are cited with approval –
“...
Halton Cheadle has observed that suspension is the employment
equivalent of arrest, with the consequence that an employee suffers palpable
prejudice to reputation, advancement and fulfilment. On this basis he
suggests that employees should be suspended pending a disciplinary enquiry
only in exceptional circumstances.
The only reasonable rationale for
suspension in these circumstances, Cheadle suggests, is the reasonable
apprehension that the employee will interfere with any investigation that has
been initiated, or repeat the misconduct in question.”
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•
It is also supported by the court in Lebu v Maquassi Hills Local Municipality
[2012] 4 BLLR 411 at para [14] where Van Niekerk J stated the following:
“The purpose of removing an employee from the workplace, even temporarily
and on full pay, must be rational and reasonable, and must be conveyed to the
employee concerned in sufficient detail to enable the employee to compile the
representations that he or she is invited to make in a meaningful way. Of
course there are those instances where precautionary suspension is a
necessary measure, and where the reasons to remove an employee from the
workplace as a precautionary measure are compelling. But those cases will be
the exception rather than the norm.”
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OPPORTUNITY TO BE HEARD
The source of the right
•
The source of the right to be heard before a suspension is effected has been the
subject of some debate in the cases. The Gradwell judgment has put that
debate to rest. The LAC held that “it is a right located within the provisions of
the LRA, the correlative of the duty on employers not to subject employees to
unfair labour practices. That being the case, the right is a statutory right for
which statutory remedies have been provided together with statutory
mechanisms for resolving disputes in regard to those rights” (para [44]).
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•
Prior to the Gradwell decision:
– The HOSPERSA, SAPO and Mogothle judgments emphatically required a
hearing before the final decision to suspend is taken, without explicitly
dealing with the source or origin of the right to be heard. In Muller v
Chairman, Ministers’ Council, House of Representatives (1991) 12 ILJ
761 (C), the court held that the interests of fairness demanded a hearing
before suspension, and noted the “startling unfairness” with which the denial
of that right could operate;
– In Dladla v Council of Mbombela Local Municipality [2008] 8 BLLR 751
(LC), Moshoana AJ took a fundamentally different line. He took a two
pronged approach to the requirement of procedural fairness:
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 first, he contended that the absence of a pre-suspension hearing could
be remedied by a post suspension hearing if the purpose of the hearing
was ‘to consider whether suspension should continue’;
 second, he took the view that in any event, any failure to comply with
the right to be heard would not amount to a grave injustice or a serious
miscarriage of justice, and that an employee would not on that basis be
entitled to urgent relief. In this regard he relied on the dictum of
Mokgoatheng AJ in Phutiyagae v Tswaing Local Municipality (2006)
27 ILJ 1921 (LC).
•
The Dladla judgment is clearly wrong for one or more of the following reasons:
– The purpose of a pre-suspension hearing is aimed at determining whether
the implementation of a suspension is appropriate taking into consideration
the 3 factors identified by the Mogothle judgment. The purpose of a post
suspension hearing, according to Dladla –
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 is not aimed at revisiting the decision to suspend;
 is simply aimed at determining whether the status quo should be
maintained without identifying what factors are relevant for the
purposes of answering that question;
– Even in so far as Dladla suggests that a post suspension hearing is
sufficient, that proposition is underscored by the fact that Moshoana AJ is of
the view that the failure to comply with a fair hearing does not amount to
irreparable harm for the purposes of urgent relief.
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The nature and the extent of the right
•
In Mogothle [at para 37] the court indicated that the opportunity to be heard
before a suspension is implemented is not akin to formal disciplinary hearings
held by many employers. According to the court, a pre-suspension hearing
must be a process of dialogue and reflection between the parties.
•
In Gradwell [at para 44] the LAC held that an opportunity to make written
representations to show cause why a precautionary suspension should not be
implemented is sufficient or adequate compliance with the requirement of
procedural fairness.
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INFORMATION ABOUT ANCILLARY ASPECTS OF THE SUSPENSION
•
Apart from the substantive and procedural aspects of the suspension, the
affected employee is also entitled to be informed of the period of the
suspension, the (final) reasons for and the conditions of the suspension.
Period of suspension
•
A suspension, even whilst investigations are underway, may be unfair if the
period of suspension exceeds the period stipulated in an applicable disciplinary
code, collective agreement, regulations, or contract of employment. See in this
regard:
– SAPO Ltd v Jansen Van Vuuren NO & others [2008] 8 BLLR 798 (LC);
– Minister of Labour v General Public Service Sectoral Bargaining Council
and others [2007] 5 BLLR 461 (LC);
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– Lekabe v Minister: Department of Justice & Constitutional Development
(2009) 30 ILJ 2444 (LC);
– Nyathi v Special Investigation Unit [2011] 12 BLLR 1211 (LC)
Remuneration
•
As a general rule, the employee is entitled to full remuneration on suspension,
failing which the suspension will constitute a breach of contract –
– Sappi Forests (Pty) Ltd v CCMA [2009] 3 BLLR 254 (LC);
– Harley v Bacarac Trading 39 (Pty) Ltd [2009] 6 BLLR 534 (LC).
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URGENT RELIEF
Injury to reputation or stigma
•
Will the court grant an employee urgent interdictory relief on the basis that the
suspension has a detrimental impact on an employee’s reputation, or that it will
leave a stigma? The answer is NO, mainly because these are not factors that
distinguish an applicant’s case for suspension from any other dismissal case.
This is therefore not a ground on which an employee can rely for the purposes
of attacking the validity of a suspension on an urgent basis:
– Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806 (LC) para 12;
– Zwakala v Port St John’s Municipality & others (2000) 21 ILJ 1881 (LC) para
4;
– Ngwenya v Premier of KwaZulu-Natal (2001) 22 ILJ 1667 (LC); [2001] 8
BLLR 924 (LC) paras 19-20;
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– Kati v MEC, Department of Finance, Eastern Cape Province (2007) 28 ILJ
589 (E);
– Mosiane v Tlokwe City Council [2009] 8 BLLR 772 (LC).
Suspension without pay
•
A unilateral termination of pay or remuneration during a preventative suspension
is unlawful and constitutes a breach of contract, and will entitle an employee to
urgent relief.
– HOSPERSA & another v MEC for Health, Gauteng Provincial Government
[2008] 9 BLLR 861 (LC);
– Harley v Bacarac Trading 39 (Pty) Ltd [2009] 6 BLLR 534 (LC).
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•
The above decisions constitute welcome relief in light of a plethora of previous
decisions that held that the mere loss of income is not a good ground for the
purposes of granting urgent relief. In this regard see:
– University of Western Cape Academic Staff Union v University of Western
Cape (1999) 20 ILJ 1300 (LC);
– Hultzer v Standard bank of SA [1999] 8 BLLR 615 (LC);
– Veary v Provincial Commissioner of Police & others [2003] 1 BLLR 96 (LC).
Failure to be heard
•
In light of the Hospersa, SAPO and Mogothle judgments, an employee would
be entitled to urgent relief in the event that he is suspended without been giving
the opportunity to state his case.
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•
A similar view was taken by the courts in:
– POPCRU obo Masemola & others v Minister of Correctional Services [2010]
4 BLLR 450 (LC);
– Dince & others v Department of Education North West Province [2010] 6
BLLR 631 (LC).
Substantive basis for the suspension
•
In Mogothle, the court established 3 criteria for a valid suspension. 2 of the 3
criteria are substantive in nature. It is self evident that in the event that an
employer does not establish the necessity for a suspension on the basis of both
criteria, an employee must be entitled to urgent relief in such circumstances.
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•
In Biyase v Sisonke District Municipality [2010] JOL 28131 (LC), although the
court was dealing with the interpretation of a municipal regulation, the court
granted the employee urgent relief in circumstances where the municipality had
not established a justifiable reason to suspend the employee and to deny him
access to the workplace.
When urgent proceedings are appropriate
•
The Gradwell judgment [at para 46] held as follows:
– In general unfair labour practice disputes should be referred to the CCMA or
the relevant Bargaining Council in terms of section 191(1);
– A declaratory order is usually inappropriate where the applicant has access
to alternative remedies, such as those available under the unfair labour
practice jurisdiction;
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– A final declaration of unlawfulness is rarely easy or prudent in motion
proceedings;
– The determination of the unfairness of a suspension will usually be better
accomplished in arbitration proceedings, unless there are extraordinary or
compellingly urgent circumstances. Where this is the case or where the
suspension carries with it a reasonable apprehension of irreparable harm,
then, more often than not, the appropriate remedy for an applicant will be to
seek an order granting urgent interim relief pending the outcome of the
unfair labour practice proceedings.
Disciplinary Proceedings
SOURCE OF THE POWER TO INTERDICT DISCIPLINARY PROCEEDINGS
•
According to the LAC in Booysen v The Minister of Safety and Security
[2011] 1 BLLR 83 (LAC), the Labour Court may in the exercise of the powers
provided in section 158(1) interdict any conduct by the employer that is found to
be unfair, including disciplinary action [para 47].
WHEN WILL THE LABOUR COURT INTERVENE IN SUCH PROCEEDINGS?
•
Such an intervention, if any, will be exercised in exceptional cases. The LAC did
not consider it appropriate to set out the test but indicated that –
“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.” [para 54 Booysen]
Disciplinary Proceedings
EXAMPLES OF POSSIBLE INTERVENTION IN DISCIPLINARY PROCEEDINGS
Discrimination and Interference with trade union activities
•
Depending on the circumstances, serious and continuing discrimination against
trade union members, and the interference with a trade union’s activities (and
the right of employees to participate in trade union activities), could give rise to
exceptional circumstances that would justify intervention in disciplinary
proceedings by the Labour Court: SACCAWU and others v Truworths and
others [1998] JOL 4196 (LC).
Legal representation
•
In appropriate circumstances, and depending on whether the matter is complex
(such as dealing with expert evidence), the Labour Court might intervene to
make an order about the employee’s entitlement to legal representation in
disciplinary proceedings: Volschenk v Morero NO [2011] 3 BLLR 313 (LC).
Disciplinary Proceedings
Reason for the institution of disciplinary proceedings
•
Generally speaking, the institution and maintenance of disciplinary measures at
the workplace has been recognised as measures that fall within the purview of
the employer’s prerogative.
Where the employer institutes disciplinary
proceedings for instance, it must act properly and responsibly when doing so.
•
In the event that an employer abuses its powers in this regard and institutes
disciplinary proceedings against an employee in bad faith or for ulterior
purposes, it is clear that the Labour Court will, in appropriate circumstances,
intervene in such proceedings: SAPU & another v Minister of Safety and
Security [2005] 5 BLLR 490 (LC).
Disciplinary Proceedings
Biased or unqualified presiding officer
•
In Llewellyn Mortimer v Municipality of Stellenbosch & another (WCD case
no: 18243/2008) [quoted in Booysen], Gauntlett AJ suggested the following
basis for the Labour Court’s intervention in disciplinary proceedings:
“Where a person in truly extraordinary circumstances .... approaches the
Labour Court on the basis that a disciplinary inquiry was for instance, about to
commence or was conducted in the hands of a biased or unqualified presiding
officer, or another factual basis so serious as to vitiate in law the enquiry, I
have little doubt that the labour court would in law exercise these powers to
stop it.” [quoted in Booysen para 53]
Disciplinary Proceedings
Applications to challenge preliminary rulings (eg: the authority to institute disciplinary
proceedings)
•
The court in Jiba indicated that such challenges should be discouraged because
such matters are generally best dealt with in arbitration proceedings in the event
of any dismissal, and if necessary, by the Labour Court in review proceedings
[para 17].
•
The reason for such an approach is clear. Preliminary challenges to the
institution of disciplinary proceedings are generally prematurely raised, because
the applicant has the right to raise the issue of the authority of such proceedings
as a defence, and the presiding officer must be given the opportunity to
determine the issue. It would therefore not be appropriate for the Labour Court
to intervene in such matters, through motion proceedings on an urgent basis,
and to “anticipate events that might equally give substance to the applicant’s
contentions or not” [Jiba paras 15 and 16].
Disciplinary Proceedings
UNDESIRABILITY
PROCEEDINGS
OF
INTERVENING
IN
UNCOMPLETED
DISCIPLINARY
•
Apart from the fact that the Labour Court will only intervene in disciplinary
proceedings in rare and extremely exceptional circumstances, none of the
judgments above are example of circumstances in which the Labour Court has
intervened. In other words, the Labour Court has refused to intervene in
disciplinary proceedings either because the applicants were not able to satisfy
the requirement of a prima facie right, or the facts of the matter simply did not
give rise to the ‘exceptional circumstances’ in which the Labour Court could
intervene.
•
But there are other reasons why the court has been reluctant to intervene in
such proceedings, and that is because it is generally undesirable for the Labour
Court to intervene in uncompleted proceedings for two reasons: 1) If the Labour
Court routinely intervened in disciplinary proceedings, it would effectively
undermine the statutory dispute resolution system; and 2) it would frustrate the
expeditious resolution of labour disputes: Jiba at para [11]
Disciplinary Proceedings
•
Perhaps most significantly though, such applications for intervention, effectively
amount to –
“asking the court to bypass the bargaining council and to ignore its role in a
carefully crafted scheme that acknowledges and gives effect to the value of
self-regulation. This court, through its review powers, is mandated to exercise
a degree of oversight over labour-related arbitrations – its powers as a court of
first instance are constrained by the LRA, and that constraint must be
respected.” [Jiba para 12]
Contractual challenges to suspensions and disciplinary proceedings
•
Given the immense difficulties associated with challenges to suspensions and
disciplinary proceedings through the mechanisms of the LRA, it seems that the
only appropriate option to do so would be a challenge to the lawfulness of such
conduct based on a contractual rather than a fairness approach: SAMWU obo
Mathabela v Dr JS Moroka Local Municipality (2011) 32 ILJ 2000 (LC).
END.