Department of Correctional Services v Nxele and Others (J158/22) [2022] ZALCJHB 37; [2022] 6 BLLR 552 (LC); (2022) 43 ILJ 1668 (LC) (9 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NUMBER: J158/22

Reportable

In the matter between:

DEPARTMENT OF CORRECTIONAL SERVICES

Applicant

and

MNIKELWA NXELE

First Respondent

KATLHOLO WABILE N.O.

Second Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Third Respondent

Summary: Interdictory relief - Enquiry under section 188A of Labour Relations Act, 1995 – employee found not guilty of serious misconduct and suspension uplifted – order sought interdicting employee from

returning to work pending the outcome of review application

Application heard: 21 February 2022

Delivered: Electronically: The date and time for the hand down is deemed to have been at 12 noon on 9 March 2022.

JUDGMENT

WHITCHER J

[1] On 23 February 2022, I dismissed this application with costs. These are my reasons.

BACKGROUND

[2] On 19 December 2019, the Applicant placed the First Respondent on a precautionary suspension in accordance with clause 2.7(2) of Chapter 7 of the Senior Managerial Service (SMS) Handbook.

[3] Since then, this suspension was the subject of much litigation. On two occasions (10 March 2020 and 10 June 2020), the Labour Court declared the First Respondent’s suspension and its extension by the Applicant invalid and unlawful. These judgments are extant. An arbitration award issued under the auspices of the Third Respondent on 26 April 2020 also found the suspension to be an unfair labour practice.

[4] Where the Applicant has lost these legal skirmishes, it has sought to review or appeal these decisions. In this however, the Applicant has not been diligent. It has failed to prosecute its appeal applications and on 1 October 2021 the Labour Court stayed the implementation of the unfair labour practice award in favour of the First Respondent

pending the determination of the Applicant’s application to reinstate its review application against this award.

[5] The overall effect has been that some of the Applicant’s challenges to the findings of the Labour Court or Bargaining Council, which have been in the First Respondent’s favour, have remained unresolved for many months more than was necessary. It would be naïve not to discern the outlines of a pattern of litigation on the part of the Applicant where the fair, prompt and final resolution of disputes concerning the employee’s presence at work are continually

buried in court processes. While a litigant’s right to seek redress through appeal and review applications is a constitutional

right, abuse of process to delay or avoid an unwanted outcome is easy to clothe in constitutional garb.

[6] Eventually, the Respondent was subjected to an inquiry by an arbitrator under section 188A of the Labour Relations Act, 1995 (LRA). This inquiry concluded on 7 February 2022. The arbitrator issued an award finding the First Respondent not guilty on all but one misconduct allegation for which he was issued with a written warning.

[7] The arbitrator concluded the award by ordering the Applicant to “uplift the suspension of the Respondent in consequence of this award” and further directing the First Respondent to report to work on 14 February 2022[1].

THIS APPLICATION

[8] The Applicant has signaled its intention ‘in due course’ to apply for an order to review and set aside the Second Respondent’s award. It will also seek an order that, pending the finalisation of

any de novo proceedings, the First Respondent remain suspended from entering the workplace. This is obviously if its review application is successful.

[9] The Applicant now seeks an order from this court restraining and interdicting the First Respondent from returning to work pending the outcome of the intended review process. It does not seek a stay of the arbitration award pending the resolution of a review application because this application was yet to be launched. Although moved on an urgent basis, the relief sought is final in its nature. The test the Applicant must thus meet is the test for obtaining final relief.

ANALYSIS OF EVIDENCE AND ARGUMENT

Prima facie right

[10] It was common cause that the Applicant was obliged to demonstrate a clear right to prevent the First Respondent from returning to work after the arbitrator’s award cleared the way for this happen. In this regard the Applicant simply avers it has “not only a bona fide but indeed a clear right” to the relief sought. The Applicant suggests in the founding affidavit that this right is activated by its declared intention to institute review proceedings to set aside the arbitrator’s award.

[11] As the First Respondent’s attorney correctly argued, the Applicant has to establish a clear or prima facie right to prevent the employee from returning to work. If the kernel of its complaint is that the arbitrator committed reviewable

misconduct, the Applicant has an independent right to take the award on review. This is how one redresses a failure to have had a legal matter properly adjudicated.

[12] The Applicant ought to have instead established a clear right to have this court effectively institute a suspension over the First Respondent that lasts for the entire time its intended review process unfolds; on average a period of two years. The best the Applicant does in this regard (in argument) is to point to the harm it may suffer should the employee return to work before the intended review application has been determined. The Applicant’s rights in this regard are necessarily shaped by the SMS Handbook which regulates suspension in the public service. The relevant provision of Chapter 7 of the SMS Handbook envisages any suspension of an SMS member as lasting at most two months. If a suspension is extended, it is to be extended by the chairperson of a disciplinary hearing or the arbitrator of an inquiry[2].

[13] If one reads the suspension provisions of the SMS Handbook in context, one notices that they are integral to the holding of a disciplinary enquiry. Thus, the decision to suspend an employee ahead of an inquiry or to extend a suspension during an inquiry is linked to some or other serious allegation an employee faces. Put differently, suspension is a precaution in relation to harm that may be caused before the allegations are adjudicated. It is meant to address an employer’s bona fide apprehension that the employee’s presence at work may hamper the holding of a hearing, or the gathering of evidence ahead of a hearing. None of these considerations apply as the hearing in question is concluded.

[14] A precautionary suspension may also be that the presence of an employee endangers the well-being or safety of any person or state property. This too, however, is in relation to an up-coming disciplinary hearing. But there is no such disciplinary hearing in casu. The Applicant seeks the suspension of the employee ahead of their intended institution of review proceedings which may result in a new disciplinary hearing being convened two-years later. The extent of the Applicant’s pleaded case appears to be that they intend to institute review proceedings to set aside the arbitrator’s award and the extension of the employee’s suspension is there for the Applicant’s taking by dint of this act.

[15] I listened carefully in argument for any reason this court should be prepared to delink precautionary suspensions from a disciplinary hearing the employer has the existing power to convene. None emerged.

[16] This should then be the end of the matter as the Applicant has fallen at the first hurdle. It has no prima facie right to the relief sought. In case, I am wrong, I will briefly consider whether two further grounds exist for the granting of a final interdict, irreparable harm and the absence of an alternative remedy.

Irreparable Harm

[17] Certain facts concerning the employee’s behaviour were introduced. The first incident was that he had telephoned a witness during his hearing which the Respondent regarded as intimidation even though no threats were issued. I would go so far as to say that telephone call, on the papers, appeared untoward. Does this action on its own show that the employer will suffer irreparable harm should the suspension not persist for another two years? In my view, not.

[18] The second incident concerned the employee presenting himself at work after the inquiry by an arbitrator resolved in his favour and his suspension was uplifted. When he arrived at the gates in February 2022, it is common cause that some unpleasantness occurred. Armed security guards denied the employee entry and harsh words were exchanged. While the employee knew at the time that his employer intended challenging the award finding him not guilty of serious misconduct and uplifting his suspension, he was not prevented from tendering his services. From the papers, the unpleasantness at the gates happened within a context of rather continuous legal adversarialism between the parties. I am not prepared to draw the conclusion urged upon me by the Applicant that this incident shows a widespread propensity by the employee to conduct himself in a manner that will cause the Applicant irreparable harm lest he is excluded from the workplace. In fact, if the employee had been allowed to resume work, there is every reason to expect that the mood of adversarialism would reduce, if only to deny the employer an opportunity to suspend him again.

[19] No other evidence was provided establishing the fact that the employee was a danger to his employer should he be at work while the review unfolds.

Alternative Remedy

[20] These two incidents noted above also show that the employer has a viable alternative remedy to address its fears of harm. If it is concerned that the two incidents constitute serious misconduct, it may suspend the employee on a precautionary basis, ahead of a determination of this new matter. (I make no finding that such a suspension would be warranted or not). Given the 60-day time limit to a precautionary suspension, this disciplinary case would hopefully be determined long before the review of the award in casu.

[21] There is no need to opine on which party is more inconvenienced by the relief sought.

Conclusion

[22] The Applicant has not made out a case for the relief sought.

Order

1. The Application is dismissed with costs.

________________________________

Benita Whitcher

Judge of the Labour Court of South Africa

For Applicant:

T P Kruger, SC instructed by State Attorney, Pretoria

For First Respondent: Garlicke & Bousfield Inc (B Mgaga)

GKock@justice.gov.za

Bongani.Mgaga@gb.co.za

Calyn@law.co.za

krugertp@law.co.za

[1] PSSBC Award, paras 7.4 – 7.5

[2] I have read the judgment in Lekabe v Minister: Department of Justice & Constitutional Development (2009) 30 ILJ 2444 (LC) upon which Applicant’s counsel placed reliance. I am satisfied that the provision in the SMS Handbook regarding a 60-day time limit for a suspension, within which a disciplinary enquiry must be convened, was intended to be peremptory. The discretion to extend the period of suspension beyond that date rests with the chairperson. It seems to be reasonably incidental to the exercise of that discretion that a chairperson must consider the extension of the precautionary suspension, since the purpose of the provision is to prevent lengthy suspensions without disciplinary steps being brought to a conclusion. The chairperson will need to consider, after 60 days, whether the reasons for the suspension remains valid depending on the progress of the enquiry.