INTERDICTING SUSPENSION AND THE DISCIPLINARY ENQUIRY: The Role of the Labour Court Shamima Gaibie Cheadle Thompson &

INTERDICTING SUSPENSION AND THE DISCIPLINARY ENQUIRY: The Role of the Labour Court Shamima GaibieCheadle 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.

Suspensions • 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:

Suspensions • 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.”

Suspensions • 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.

Suspensions • 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”).

Suspensions 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]) • InPhutiyagae 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.

Suspensions • 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.

Suspensions “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” : Gradwellat 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.

Suspensions • 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).

Suspensions • 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.

Suspensions • 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 Mogothleat 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.”

Suspensions • 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.”

Suspensions 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]).

Suspensions • Prior to the Gradwelldecision: • The HOSPERSA, SAPOandMogothlejudgmentsemphatically 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:

Suspensions • 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 –

Suspensions • 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.

Suspensions 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.

Suspensions 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);

Suspensions • 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).

Suspensions 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;

Suspensions • 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).

Suspensions • 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.

Suspensions • 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.

Suspensions • 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;

Suspensions • 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 extraordinaryorcompellingly 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” [Jibaparas 15 and 16].

Disciplinary Proceedings UNDESIRABILITY OF INTERVENING IN UNCOMPLETED DISCIPLINARY PROCEEDINGS • 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: Jibaat 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.” [Jibapara 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.

INTERDICTING SUSPENSION AND THE DISCIPLINARY ENQUIRY: The Role of the Labour Court Shamima Gaibie Cheadle Thompson &