Snyman and Another v Department of Human Settlement and Another (J 459/21) [2021] ZALCJHB 73 (1 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 459/21

In the matter between:

MICHELE DEANNE

SNYMAN First

Applicant

SOLIDARITY Second

Applicant

and

DEPARTMENT OF HUMAN

SETTLEMENTS

First Respondent

DIRECTOR GENERAL:

DEPARTMENT

OF HUMAN

SETTLEMENTS

Second Respondent

Heard: 18 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 1 June 2021 at 22:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and background:

[1] The applicants approached this Court on urgent basis seeking a variety of orders including:

i. the setting aside of a completed disciplinary process which had culminated in the outcome and sanction against the first applicant (Ms Snyman), which was circulated on 28 September 2018.

ii. directing the respondents to reinstate Snyman retrospectively reinstate Snyman to the position of Chief Director: Human Resources.

iii. directing that, if the Respondents wishes to pursue disciplinary action against Snyman afresh, they must comply with the prescripts of the First Respondent’s disciplinary codes and procedure;

[2] The application is opposed by the respondents on the grounds that; the application lacks the necessary urgency; the second applicant (Solidarity) does not have locus standi to institute these proceedings in its own interest and name; and that the applicants have not laid the basis for the setting aside of the outcome of the disciplinary proceedings.

[3] It is my view not even necessary to deal with the locus standi of Solidarity. This is so in that Snyman is its member in good standing, and surely Solidarity is entitled to bring this application

on her behalf. There is however no specific public interest that Solidarity can claim to represent in this case. This matter concerns

a dispute concerning its individual member, resulting from the outcome of a disciplinary process into allegations of misconduct

against her.

[4] This application is before the urgent Court against the following background;

4.1 Snyman commenced her employment with the first respondent, the Department of Human Settlement (DHS) in August 2009 in the position of Director: Labour Relations. In March 2013, she was promoted to the position of Chief Director: Human Resources.

4.2 Disciplinary proceedings were instituted against Snyman in July 2016 on account of various allegations of misconduct related to breaches of Supply Chain Management. A disciplinary enquiry ultimately commenced on 26 July 2016 and was finalised on 14 September 2018. The chairperson of the disciplinary enquiry issued a ruling on 28 September 2018, and Snyman was found guilty on four of the allegations of misconduct preferred against her. The chairperson made the following findings

and recommendations on sanction;

4.2.1 On charge 8, Snyman was to receive a final written warning

4.2.2 On charge 7, she was to be placed on three (3) months suspension without pay.

4.2.3 On charge 2 she was to be demoted one level from Chief Director to Director.

4.2.4 On charge 1, she was to be demoted further to the position of Deputy Director.

4.3 On 2 October 2018, Snyman sent correspondence to the second respondent (DG) confirming receipt of the chairperson’s report and further sought instructions on resuming her duties and the implementation of the chairperson’s recommendations.

4.4 She again sent correspondence to the DG on 10 October 2018 advising that she awaits instructions on the resumption of her duties with the Department. In a response dated 16 October 2018, the DG had informed Snyman that the DHS was still in a process of considering the findings and recommendations of the Chairperson and that communication on the issue would be dispatched to her within a reasonable period.

4.5 Snyman contends that in December 2018, she became aware of Circular 30 of 2019, which called upon employees who had been subjected to prolonged precautionary suspension processes to approach the Department of Public Service and Administration (DPSA) for the review of that suspension.

4.6 She then addressed correspondence to the Director General of the DPSA, advising that her disciplinary processes had been concluded on 28 September 2018, and that the DHS had failed to implement Chairperson’s recommendations.

4.7 Following an invitation by the DG on 28 February 2019, Snyman and the DG met on 4 March 2019 to discuss the outcome of the disciplinary hearing. The DG had in that meeting indicated the DHS’s resolution to implement the recommendations of the Chairperson.

4.8 Snyman however objected to the implementation of the Chairperson’s recommendations on the grounds that it would inter alia be unlawful on the basis of the provisions of paragraph 2.7(4)(b)[1] of the Disciplinary Code, Chapter 7 of the SMS Handbook. She further contended that the chairperson of the hearing had not sought her consent to impose a sanction alternative to dismissal i.e. demotion and unpaid suspension.

4.9 On 12 March 2019, the DG addressed correspondence to Snyman recording that she had acknowledged receipt of the outcome of the disciplinary process in September 2018; that she had on 2 October 2018 communicated her acceptance of the sanction imposed by the chairperson; and that as a result, the DHS would implement the sanctions with effect from 1 April 2019. Effectively, Snyman was advised that;

a) She was suspended without pay with effect from 01 April 2019 and was required to only return to work on 1 July 2019.

b) She was demoted from a Chief Director – Human Resources, to a Deputy Director Level with effect from 1 July 2019.

c) A final written warning was imposed on her on 01 July 2019 consistent with the decision of the disciplinary hearing.

d) The Department would also issue her with confirmation of the terms and conditions related to the position of Deputy Director consistent with the provisions of the disciplinary hearing sanctions as read with the relevant provisions of the policies, legislation and

regulations as may be applicable to the position in terms of the Department of Public Service and Administration.

4.10 In her response on 14 March 2019, Snyman denied that she had consented to the sanctions of the chairperson and that her previous communication was only intended to acknowledge receipt of the chairperson’s outcome report and further to solicit the DG’s instructions in respect of the implementation of the recommendations. She further placed reliance on her request for intervention to the DPSA in January 2019 in terms of Circular 30 of 2018 for the assertion that the outcome was contested, and sought the withdrawal of the implementation of the Chairperson’s decision.

4.11 When the DHS refused to withdraw the implementation of the sanction, Snyman then approached this Court on an urgent basis on 15 April 2019, seeking an order setting aside the decision to implement the sanction, and/or restraining the respondents from implementing the sanctions pending the final determination of an unfair labour practice dispute.

4.12 The urgent application under case number J1021/19 came before Baloyi AJ on 24 April 2019, and was struck-off the roll on account of lack of urgency.

4.13 In line with the decision to implement the sanction, Snyman was then placed on suspension without pay from April 2019 until June 2019. Snyman persisted with her contentions in meetings held with officials of the DHS, including its erstwhile Acting Deputy Director General: Corporate Services, that the sanctions imposed were unlawful as she had not consented to them.

4.14 Snyman subsequently approached the Acting Chief Director: Human Resources, who had in turn assigned an office to her but without any responsibilities. In November 2019, Snyman was seconded to the Financial and Fiscal Commission which secondment has since come to an end.

4.15 In September 2020, Solidarity proposed a settlement of the dispute. A meeting held on 30 September 2020 was unsuccessful in resolving the dispute. On 8 October 2020, Snyman persisted with her contentions that the imposition of the sanction was unlawful. On 4 February 2021, she addressed correspondence to the DG and indicated that in view of the purported unlawfulness of the sanction and the impasse thereon, she was compelled to report for duty in the position of Chief Director: Human

Resources.

4.16 In a meeting held on 23 February 2021, where Snyman had persisted with her contentions, the DHS proposed several suitable positions at the level of Deputy Director, and further afforded her time to consider those positions. Solidarity on 11 March 2021 rejected any of the proposed positions on the basis that they were unsuitable on account of Snyman’s ‘qualifications, experience and skills-set’. It again persisted with its contentions that the DHS was acting unlawfully, and demanded that she be reinstated in her original position within seven days.

4.17 On 15 April 2021, Snyman received correspondence dated 7 April 2021, advising her that following unsuccessful

attempts to engage with her in meetings dating back from 4 March 2019 to March 2021 with a view of permanently placing her in a post at Deputy Director level, and further since she had not made an election in respect of the posts identified, she was now to be permanently placed in a position of Deputy Director; Project Resourcing with effect from 1 April 2021. She was advised that her failure to report for work in that position would lead to the deeming provisions of section 17(3)(a) and (b)[2] of the Public Service Act (The PSA)[3] being invoked to terminate her services on account of her abscondment. The correspondence further detailed the terms and conditions of her new placement. It is on the basis of this correspondence that the applicants approached the Court on 26 April 2021.

Evaluation:

[5] Based on the above historical background of this matter, it ought to be instantly concluded that clearly this application does not deserve the urgent attention of this Court, and even if it did, no basis has been laid for the relief sought. To put it bluntly, this application is a typical abuse of this Court’s process, and should not have been before the urgent court. My conclusions in this regard are based on the following;

5.1 The Chairperson’s recommendations on sanction were made known on 28 September 2018,and were acknowledged by Snyman and as far back as 2 October 2018. In acknowledging the outcome, she further sought instructions on resuming her duties and the implementation of the chairperson’s recommendations. At no stage at that point did Snyman seek to challenge the outcome.

5.2 As at 12 March 2019, the DG had indicated the DHS’s resolution to implement the recommendations of the Chairperson. To show its intention to implement the sanction, Snyman was accordingly suspended without pay between April and June 2019, and in July 2019, a demotion to a level of Deputy Director took place, albeit no specific position in that level was determined. The exact position (Deputy Director: Project Resourcing) was finally confirmed on 7 April 2021. Prior to then however, Snyman had already been demoted to the level of Deputy Director.

5.3 Significantly, prior to this application, Snyman had approached this Court on an urgent basis on 16 April 2019 under case number J1021/19, seeking an order to set aside the decision to implement the sanction imposed by the Chairperson, and interdicting the respondents from implementing the sanction pending the arbitration of a dispute. That application was correctly struck off the roll on account of lack of urgency. There is no evidence to suggest that anything was done to place that matter back on the

ordinary roll.

5.4 It is in the light of the initial urgent matter being struck off the roll that it is said that this second application is an abuse of Court process. The factual matrix and substance of the relief sought in both cases is essentially the same. Irrespective of how the relief sought in both matters is framed, ultimately, the applicants seek the setting aside of the disciplinary process and its outcome, and for Snyman to be reinstated in her original position. There is therefore no difference between the setting aside of the decision to implement the sanction as sought in the initial application that was struck off, and the setting aside of the disciplinary process and directing the respondents to reinstate her, as sought in this current application.

5.5 Despite the above obvious facts, Snyman however in this application contends that she claims specific performance in the light of the alleged unlawfulness of the Department’s intention to implement the outcome. Again, at the core of that relief is that the status quo, i.e., her reinstatement to her original position, should be restored. The basis of her contentions is inter alia that the DHS has not sought her consent in contravention of the provisions of the SMS Handbook. She further alleges unlawfulness in respect of how the outcome was arrived at, the outcome itself and the DHS’s intention to implement it.

5.6 In my view, this claim even if it could be alleged is different from the application that came before Baloyi AJ on 16 April 2019, does not in the light of the historical background outlined above, deserve the urgent consideration of this Court. This is so in that on the common cause facts, the implementation of the outcome took effect as far back as March 2019. I fail therefore to appreciate how simply because the claim had morphed into a contractual one based on the same set of facts, it would suddenly become urgent. The issue of the demotion and the alleged non-compliance with the provisions of the SMS handbook is nothing new. This is so in that Snyman raised it as far back as 14 March 2019 in response to the DG’s correspondence of 12 March 2019, wherein she was advised that the outcome was to be implemented.

5.7 It is common cause that Snyman was in accordance with the outcome of the disciplinary hearing, suspended without pay between April and June 2019, and was with effect from 1 July 2019, demoted to a position of Deputy Director. The disciplinary process therefore having taken its course in September 2018, and its outcome implemented as far back as July 2019, it is therefore indeed extraordinary that Snyman would seek the urgent intervention of this Court some 31 months later after the outcome, or at most, and some 25 months after the implementation of the outcome. In everyday parlance, the horse has long bolted, and in fact, has long reached the finishing line.

5.8 In a nutshell therefore, it is not as if Snyman only got to know of the intention to implement the sanction on 7 April 2021 when the DG addressed correspondence to her threatening to invoke the deeming provisions of section 17(3)(a) and (b) of the PSA to terminate her services in view of her failure to choose the positions at Deputy Director level which had been proposed.

5.9 Equally so, the letter of 7 April 2021 from DHS advising Snyman of the final posting and implementation and the consequences to follow should she not report for duty, cannot as submitted on behalf of the applicants, be the date that urgency arose. The proposition that the applicants could not have approached the Court prior to the final implementation of the outcome in April 2021 is clearly self-serving. It is not the implementation of the outcome itself as such, but the outcome of September 2018 itself that is the source of Snyman’s complaint. Its belated implementation by the DHS in full cannot on its own give rise to urgency.

5.10 From March 2019, Snyman has been resisting the implementation of the sanction. Even if it is accepted that the DHS had been slack in implementing the sanction, or that the parties were engaged in some settlement discussions, the fact remains that it had always been the intention of DHS to implement the outcome, and had in fact done so between March and 19 July 2019.

5.11 It is apparent as already indicated, that the applicants did nothing upon receipt of outcome of the disciplinary process other than to attempt to negotiate their way out of the consequences of that outcome. After various meetings between March 2019 and March 2021, and various options offered to Snyman at the level of Deputy Director were rejected for a variety of reasons, clearly the DHS was entitled to draw the line in the sand.

5.12 It is further apparent that only when the DHS threatened to invoke the deemed dismissal provisions under section 17(3)(a) and (b) of the PSA did the applicant suddenly realise the seriousness of the DHS’s intentions to finally implement the terms of the September 2018 disciplinary process outcome in full. In the circumstances, the self-created urgency is self-evident.

5.13 It is therefore no even necessary to deal with the merits of why Snyman holds the view that the outcome of September 2018 and its implementation is unlawful. This is akin to asking the Court to review the decision of the Chairperson. The urgent Court cannot be turned into a review Court under the circumstances where a disciplinary process has taken its course and resulted with an outcome. Snyman and Solidarity in particular knew or ought to have known as far back as September 2018 as to what to do in the light of the disciplinary hearing outcome. Instead, they chose to abuse this Court’s process, not only once, but twice. In the light of these conclusions, no purpose would be served by striking the matter off the roll, and it ought to therefore be dismissed.

[6] In conclusion therefore, other than the fact that there is no basis for this Court to conclude that this matter deserves its urgent attention, no basis has been laid out either, for the relief that the applicants seek. Further in the light of the above conclusions and the abuse of this Court’s process as alluded to in this judgement, considerations of the requirements of law and fairness dictate that this application be dismissed with an order of costs.

[7] In the premises, the following order is made;

Order:

1. The Applicants’ urgent application is dismissed with costs.

_______

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: C. Goosen, instructed by Serfontein Viljoen & Swart Attorneys

For the 1st and 2nd Respondents: T. Mphahlane, instructed by State Attorney: Johannesburg

[1] Paragraph 2.7 of the Disciplinary Code provides that: (4) Sanctions (a) If the chairperson finds a member has committed misconduct, the chairperson must pronounce a sanction (within the period referred to in paragraph 2.7(3)(n)), depending on the nature of the case and the seriousness of the misconduct, the member’s previous record and any mitigating or aggravating circumstances… (b) With the agreement of the member, the chairperson may only impose the sanction of suspension without pay or demotion as an alternative to dismissal. If a member is demoted, after a year he or she may apply for promotion without prejudice.

[1] Paragraph 2.7 of the Disciplinary Code provides that:

(4) Sanctions

(a) If the chairperson finds a member has committed misconduct, the chairperson must pronounce a sanction (within the period referred to in paragraph 2.7(3)(n)), depending on the nature of the case and the seriousness of the misconduct, the member’s previous record and any mitigating or aggravating circumstances…

(b) With the agreement of the member, the chairperson may only impose the sanction of suspension without pay or demotion as an alternative to dismissal. If a member is demoted, after a year he or she may apply for promotion without prejudice.

[2] Section 17 provides: Termination of employment (3)(a)(i) An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty. (ii) If such an employee assumes other employment, he or she shall be

deemed to have been dismissed as aforesaid irrespective of whether the said period has expired or not.

[2] Section 17 provides: Termination of employment

(3)(a)(i) An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.

(ii) If such an employee assumes other employment, he or she shall be

deemed to have been dismissed as aforesaid irrespective of whether the said period has expired or not.

[3] Act 103 of 1994, as amended