Department of Public Works v Vukela and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Andre Van Niekerk J |
| Judgment Date | 18 July 2022 |
| Docket Number | J 488/2022 |
| Hearing Date | 14 June 2022 |
| Court | Labour Court |
| Citation | 2022 JDR 2073 (LC) |
Van Niekerk J:
Introduction:
The Labour Relations Act [1] (LRA) sought to introduce a system for the resolution of workplace disputes that is cheap, accessible, quick and informal. [2] This case demonstrates how elusive each of these goals remains, and how a case which, on the face of it, is no more than one of alleged workplace misconduct can quickly snowball as layer on layer of technicality is introduced. As will appear from the summary of the facts recorded below, the first respondent was suspended in July 2020, when charges of misconduct were brought against him. A dispute about his suspension and the disciplinary action against him has been the subject of proceedings in the High Court, proceedings before a senior counsel appointed by the applicants to conduct a disciplinary hearing, and two discrete arbitration hearings. Almost exactly two years after the first respondent's suspension, he remains excluded from his workplace, on full pay, pending the outcome of these proceedings and a second, related review application. The disciplinary enquiry convened in 2020 remains in abeyance, and the charges of misconduct brought against the first respondent remain untested. This all in circumstances where the first respondent's fixed term contract of employment expires in December 2022.
As any Judge in this Court will attest, the circumstances of this case are by no means unique. What has developed over the years in the public sector is what this Court has referred to as a 'yawning gap' between the respective rights of employees in the public and private sectors, and the injustice that is occasioned. [3]
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Van Niekerk J
Ironically, the multiplicity of laws and the consequent complexity, inconsistency, duplication of resources and jurisdictional confusion are all problems that the LRA sought to address. [4] Perhaps the time has come for there to be a formal enquiry into why workplace discipline and dispute resolution procedures (especially in the public sector) remain out of step with legislative intent, and for the legislature to consider how the agreed goal of efficient, expeditious and inexpensive procedures might be better achieved.
In the present application, the applicants seek to review. And set aside an arbitration award issued by the second respondent (arbitrator) on 31 March 2022. In his award, the arbitrator found that the applicants had committed an unfair labour practice by suspending the first respondent, and ordered that his suspension be uplifted and that he report for duty on 11 April 2022.
Factual background:
The factual background is not in dispute. The first respondent is employed as the director-general of the first applicant (department), engaged in terms of a fixed-term contract that commenced on 7 December 2017, to expire in December 2022. The first respondent is the most senior employee in the department, and is subject to what is referred to as the SMS Handbook, essentially a collective agreement in the form of a set of regulations applicable to all members of the senior management service. Chapter 7 of the SMS Handbook deals with disciplinary and related measures.
On 17 March 2020, the President approved a delegation of powers in respect of disciplinary action to be taken against the first respondent to the then minister responsible for the department, Minister de Lille. On 12 July 2020, the first respondent addressed a letter to the President requesting Minister de Lille's recusal on various grounds, and making what he referred to as disclosures regarding alleged impropriety on the Minister's part.
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Van Niekerk J
On 28 July 2020, Minister de Lille placed the first respondent on suspension, and issued a charge sheet alleging various acts of misconduct. In particular, the minister recorded that she had received two reports, one referred to as the 'PwC report' and the other as the 'PSC report', which provided detail of the allegations of serious misconduct made against the first respondent. A senior counsel at the Johannesburg Bar, Adv. D Berger SC was appointed as chairperson of the enquiry, and the hearing was scheduled for 17 and 18 September 2020.
Of some significance for present purposes is a separate letter, addressed to the first respondent by Minister de Lille on the same date (28 July), in which she advised him of his precautionary suspension. The letter makes reference to 'serious findings' in the PwC and PSC reports and concludes:
Accordingly, and in the light of all of the above, I hereby place you on precautionary suspension with full pay from your position as Director General, effective immediately.
This precautionary suspension shall remain in effect until such time as the disciplinary hearing regarding your conduct has been finalised – such hearing shall, in, accordance with item 2.7 (2)(c) of Chapter 7 of the SMS Handbook, commence within sixty (60) days of the date of delivery of this letter. The following conditions shall apply:
you shall desist from continuing with, or participating in, any activities whatsoever related to the Department or your position as Director-General;
you are prohibited from entering the Department's premises, unless authorised to do so in writing by the Minister of Public Works and Infrastructure; and
you are prohibited from engaging with any employees or service providers of the Department, unless authorised to do so in writing by the Minister of Public Works and Infrastructure.'
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The 60-day period to which the Minister referred within which the first respondent's disciplinary hearing was to commence thus expired on 26 September 2020.
After the first respondent had initiated proceedings in the High Court in relation to the above correspondence, the parties agreed to an order which had the consequence that on 9 September 2020, the delegation in favour of Minister de Lille was withdrawn and a fresh delegation was issued to the Minister in the Presidency at the time, the late Minister Mthembu, vesting in him the power to pursue disciplinary action against the first respondent.
On 19 September 2020, Minister Mthembu addressed a letter to the first respondent, confirming that the charges levelled against him presented a prima facie case for him to answer in a formal disciplinary hearing. Minister Mthembu supplemented the disciplinary charges, hand min relation to the first respondent's suspension, continued:
It would be appropriate, in order to ensure that the integrity of the disciplinary process is safeguarded, considering the seriousness of the charges levelled against you and the seniority of the position you hold. That you remain on precautionary suspension, pending the finalisation of the disciplinary process.'
On 20 September 2020, Adv. Berger SC confirmed that he had been retained by Minister Mthembu to act as chairperson of the disciplinary enquiry, and sought a meeting with the parties to discuss what steps needed to be taken before the enquiry could commence.
On 1 October 2020, the first respondent referred a request to the bargaining council to appoint an arbitrator to conduct disciplinary proceedings against him in terms of section 188A (11) of the LRA, contending that the disciplinary proceedings brought against him by the applicants amounted to an occupational detriment consequent on him having made a protected disclosure. On the same day, Adv. Berger SC convened a pre-hearing meeting during the course of which the first
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respondent's representative contended that he did not have jurisdiction to proceed with the hearing in view of the section 188A (11) referral.
On 5 October 2020, Adv. Berger SC ruled that he had jurisdiction to proceed with the disciplinary hearing. On 7 October 2020, at the pre-hearing meeting, Adv. Berger SC issued a ruling to the effect that the hearing would comment on 18 November 2020.
In the interim, and consequent on the referral made by the first respondent on 1 October 2020, the section 188A hearing commenced under the auspices of the bargaining council. At the hearing, the first applicant disputed the council's jurisdiction to entertain the referral. The presiding arbitrator reserved her ruling on the issue, with the result that the disciplinary hearing was postponed. On 26 November 2020, the arbitrator in the section 188A referral ruled that the bargaining council had jurisdiction to entertain the referral.
On 17 December 2020, about five months after he was suspended but within the applicable 90-day period, the first respondent referred an unfair labour practice dispute concerning his suspension (the subject of the present proceedings) to the bargaining council. After an unsuccessful conciliation meeting, the matter was set down for an arbitration hearing. Only the first applicant in the present proceedings was cited as the respondent in the referral.
On 7 January 2021, the applicants delivered the application to review and set aside the ruling in the section 188A proceedings, and simultaneously sought a stay of those proceedings pending the outcome of the review application. A draft order was agreed to in terms of which the section 188A arbitration and internal disciplinary proceedings before Adv. Berger was stayed pending the determination of part B. The application to review and set aside the jurisdictional ruling in the section 188A (11) referral was argued simultaneously with the present application. [5]
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Van Niekerk J
On 7 July 2021, in relation to the unfair labour practice dispute, the arbitrator heard an application in which the applicants submitted that the bargaining council did not have jurisdiction to arbitrate the dispute because...
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