Wholesale & Retail Sector Education and Training Authority (W&RSETA) v Commission for Conciliation, Mediation and Arbitration and Others (JR1254/16) [2022] ZALCJHB 209 (4 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: JR1254/16

In the matter between:

WHOLESALE & RETAIL SECTOR

EDUCATION AND TRAINING AUTHORITY

(W&RSETA)

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

JOHN M SIAVHE (N.O.)

Second Respondent

SINDISO MALAKU

Third Respondent

Heard: 19 July 2022

Delivered: 04 August 2022 (This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 04 August 2022.)

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This case involves an alleged unfair labour practice in terms of section 186 (2) of the Labour Relations Act[1] (LRA).

[2] The Third Respondent, Mr Sindiso Malaku (Mr Malaku) was placed under suspension by the Applicant, Wholesale & Retail Sector Education and Training Authority (the Applicant). Aggrieved by his suspension, Mr Malaku referred an unfair labour practice dispute in respect of which he alleged that his notice of suspension did not contain

sufficient particularity and thus robbed him of the opportunity to make effective representations against his suspension. The Second

Respondent (the Commissioner) found in favour of Mr Malaku and awarded six month’s compensation in the amount of R600 283.98.

[3] The Applicant now seeks to review and set aside that Award in terms of section 145 of the LRA.

Material facts

[4] The dispute arose in October 2017, while Mr Malaku was employed by the Applicant as an SMME Executive Manager, stationed at Centurion, Pretoria. At the time of the suspension, Mr Malaku had been in the

Applicant's employ for eight years and was then earning R100 047.33 per month.

[5] It is common cause that an unprotected strike occurred at the Applicant's premises on 4 October 2017. Mr Malaku was part of the strike but later averred that he had believed it to have been protected and lawful. Nonetheless, on 6 October 2017, he was issued with a notice of possible suspension, which set out that the Applicant was considering suspending him "pending an investigation and possible disciplinary enquiry into allegations of gross misconduct and breaches of [his] duties of good faith and fidelity in that [he] acted contrary to the interests of [the Applicant]."[2]

[6] The notice requested him to make representations as to why the Applicant should not place him under suspension. However, he requested further clarity on the proposed suspension, and the same day, he met with Advocate Rampai, who explained to him that the proposed suspension concerned his participation in the strike action of 4 October 2017. No further particulars were forthcoming.

[7] On 16 October 2017, Mr Malaku addressed a letter to the Applicant, which contained the requested reasons for why he should not be suspended. Two days later, he was issued with a notice to attend a disciplinary hearing to be held on 8 November 2017.

[8] Mr Malaku referred an unfair labour dispute to the First Respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) in terms of section 182(2)(b) of the LRA, alleging that the Applicant

had not furnished him with enough detail and reasons for his suspension and therefore inhibited his capacity to make effective

submissions against such suspension.

[9] In his Award, the Commissioner held that the Applicant's failure to furnish Mr Malaku with sufficient details regarding his suspension indeed constituted an unfair labour practice. He held that the Applicant's reasons to suspend, as per the notice of possible suspension, were not clearly articulated and the Applicant had refused to provide further particulars in writing, which, combined, ensured that the Applicant was not afforded an opportunity to make meaningful representations. The Commissioner reasoned that the issue at heart was not whether Mr Malaku had known, but whether he had been

given detailed information in writing; since he had not, the meeting with Advocate Rampai did not assist the Applicant's case.

[10] The Commissioner further held that the suspension constituted an unfair labour practice as it went beyond the terms stipulated in the notice of possible suspension. In other words, the notice provided for a possible suspension "pending an investigation" and therefore there was no sense, held the Commissioner, in the Applicant's argument that the suspension should endure beyond the investigatory stage.

[11] Lastly, the Commissioner held that, in tandem with this Court's precedents, where an arbitrator finds that a suspension of an employee amounted to an unfair labour practice, it is irregular for the arbitrator to simply order that the employee return to work without considering whether the facts of the case warrant a solatium. The Commissioner thus found that this was just the case, and duly awarded compensation.

Test for Review

[12] In a range of cases, starting with Sidumo v Rustenburg Platinum Mines Ltd[3] and the jurisprudence that followed,[4] the test on review and as set out in the matter of Herholdt v Nedbank Limited[5], the Supreme Court of Appeal has defined with greater clarity, the standard of review:

12.1 It must be established, either that the arbitrator has misconceived the nature of the enquiry, or that he or she arrived at an unreasonable result.

12.2 For an award to be unreasonable, the arbitrator’s conclusion must be one that a reasonable decision-maker could not reach on the material that was before the arbitrator.

12.3 Material errors of fact, including errors concerning the weight and relevance to be attached to certain facts, are only of consequence if their effect is to render the outcome unreasonable.

12.4 If the arbitrator’s reasons provide a reasonable “route” leading towards the conclusions, it must follow that the decision is one that could have been reached (and in fact was) made by a reasonable decision-maker. A review application would, in such circumstances, not succeed.

12.5 Even if there are flaws in the arbitrator’s reasons, a review must still consider whether apart from the arbitrator’s reasons, “the result is one that a reasonable decision-maker could reach in light of the issues and the evidence.”

12.6 A review court is required to examine the merits “in the round” only.

[13] Accordingly, in assessing any alleged irregularity, the court will not consider whether the arbitrator's reasoning on its merits was reasonable, but whether, given the totality of the evidence before him, the arbitrator should have reasoned along those lines to begin with.

[14] In other words, the assessment will consist of whether the arbitrator's decision falls within the band of decisions that a reasonable arbitrator could have made in the circumstances. As Sidumo noted, the answer is not whether a different, more reasonable Commissioner would have reached a different result on the same evidence, but whether he could have.

Evaluation

[15] The issue before me is whether the Commissioner's award in this case is unreasonable. To address this, three supplementary questions arise: first, whether the Commissioner's decision on the exactitude of the notice of possible suspension was reasonable; next, whether the Commissioner's decision on the suspension period was reasonable; and lastly, whether the Commissioner's decision regarding compensation was reasonable.

[16] The answer to the first supplementary question depends on the legal standard applicable to the particularity of suspension notices. It is trite that the law imposes a duty of fair dealing on employers whenever they make decisions affecting their employees, and that when contemplating suspensions, this duty obliges employers to, at a minimum, have a justifiable prima facie reason to believe that the employee has engaged in serious misconduct; has an objectively justifiable reason to deny the employee access to the workplace; and afford the employee an opportunity to state a case before the employer makes a final decision on the suspension.[6]

[17] In this case, there is no doubt that the Applicant had a justifiable prima facie reason to believe that Mr Malaku had engaged in serious misconduct. There is even less doubt that the Applicant had an objectively justifiable reason to deny Mr Malaku access to the workplace as it sought to investigate his actions on 4 October 2017, which investigation could reasonably be expected to be frustrated by his continued presence in the workplace through its duration. The real contention is whether he was afforded sufficient opportunity to present his case before the Applicant took the decision to suspend him.

[18] The Applicant referred this Court to Mere v Tswaing Local Municipality and Another,[7] where this Court, per Snyman AJ, held that an employee who had been furnished with an admittedly unspecific notice of intention to suspend but had been invited to a meeting where the reasons for his suspension were verbally explained, was lawfully suspended. This case, however, differs from the present, in that it dealt not with an unfair labour practice but concerned itself with whether the suspension was lawful in terms of the Local Government: Disciplinary Regulations for Senior Managers. Although the case itself does not assist much, it does raise the question whether, in suspension proceedings, the employee must be furnished with all specific reasons in writing, or whether it is sufficient for the employee to simply be made aware of the reasons thereof, verbally or otherwise.

[19] In Sol Plaatje Municipality v SA Local Government Bargaining Council and others[8] the Labour Appeal Court cautioned courts and tribunals against an unduly strict and technical approach to the framing and consideration

of disciplinary charge sheets and postured that a disciplinary charge may be broad, as long as a reasonable inference may be drawn that the accused's conduct fell within that scope.

[20] Although Sol Plaatjie was in the context of actual disciplinary proceedings, it is worth noting that the standard in precautionary suspensions is lower than in disciplinary proceedings. It bears repeating that "[w]here the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations."[9] Where no legal requirement for a hearing exists, it cannot be that nothing but written reasons for the contemplated suspension shall suffice.

[21] Mr Malaku admits to the meeting with Advocate Rampai but maintains that it had been informal; he does not dispute that Advocate Rampai had informed him that the suspension was related to Mr Malaku's participation in the unprotected strike of 4 October 2017. In other words, Mr Malaku did know why the Applicant was considering the suspension; he simply was not provided those details in great specificity in writing. It seems to have been the Commissioner's resolve that the issue was not necessarily whether Mr Malaku knew why the Applicant was considering suspending him, but whether he had been provided such specific detail in writing.

[22] The legal standard in precautionary suspensions, as we have seen, is not strict specificity in writing; it is sufficient for an employee to be informed (whether in writing or verbally) of the reasons for his or her suspension. The Commissioner's decision in this regard therefore fell outside the realm of possible decisions which a reasonable decision maker could have made in the circumstances.

[23] On the second question, the Commissioner found that it was unfair for the Applicant to extend Mr Malaku's suspension beyond the outcome of the investigation. He found no sense in the Applicant's contention that the investigation would not end at the commencement of the disciplinary hearing, holding that had that been the case, it, too, should have appeared on the suspension letter. Except, it did. The letter provides that the Applicant was "considering suspending [Mr Malaku] pending an investigation and possible disciplinary enquiry.]" The conjunction "and" indicates that the word "pending" is an antecedent to both the investigation and possible disciplinary enquiry. In other words, the letter made provision that the suspension would persist during any possible disciplinary enquiry that would follow the investigation.

[24] The Commissioner thus committed a gross irregularity in the above finding and in so doing reached a conclusion which no reasonable decision maker could have reached with the evidence in question.

[25] Since the Commissioner's decision to award compensation followed his unreasonable findings that Mr Malaku's suspension was unfair, it follows that the decision on compensation was also unreasonable and falls to be set aside.

Costs

[26] There is no reason to depart from the general rule that in labour matters, costs do not follow the result.

[27] In the result, the following order is made

Order

1. The application to review and set aside the arbitration award dated 29 May 2018 is hereby granted.

2. The order as contained in the Award is hereby substituted with the following order:

2.1 "The Applicant's suspension is both substantively and procedurally fair."

3. There is no order as to costs.

H. Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate Naidoo

Instructed by: Ismail and Dahya Attorneys

For Respondent: Mr Finck of Finck Attorneys

[1] No 66 of 1995, as amended.

[2] Bundle A Page 30 of 127.

[3] (2007) 28 ILJ 2405 (CC).

[4] Cusa v Tao Ying Metal Industries [2008] ZACC 15; 2009 (2) SA 204 (CC); Fidelity Cash Management Service v CCMA (2008) 29 ILJ 964 (LAC); Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA); Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others [2014] 1 BLLR 20 (LAC).

[5] 2013 (6) SA 224 (SCA).

[6] See: Mogothle v Premier of the North West Province and Another [2009] 4 BLLR 331 (LC) at para 39.

[7] (2015) 36 ILJ 3094 (LC) (7 July 2015).

[8] (2022) 43 ILJ 145 (LAC).

[9] Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others [2019] 6 BLLR 515 (CC) at para 24.