Friday, April 17, 2009

A few weeks ago, Andre van Niekerk, Judge of the Labour Court, delivered a judgment affecting the suspension of public sector employees. The judgment is equally relevant for private sector employees.
In Mogothle v the Premier of the North West Province and the MEC for Agriculture, Conservation and Environment, the Deputy Director General (DDG) of the Department of Agriculture, Conservation and Development in the North West Province apparently approved a state grant to an entity in which he and his family had an interest.
The DDG claimed that he had nothing to do with the decision to allocate the grant but, being concerned about the implications of a conflict of interest, he made full disclosure to the MEC. The MEC acknowledged his disclosure and approved the grant.
Subsequent debate in the North West Provincial Legislature resulted in the DDG being placed on “extended leave” pending various investigations.
In suspending the DDG, the MEC expressly disavowed a reliance on the provisions of the Senior Management Service (SMS) Handbook. The suspension was framed as a “request” that the DDG take leave in order to allow the investigation to unfold without the risk of it being jeopardised by the DDG’s presence at work. The DDG was not given the opportunity to make representations on why he should not be suspended.
In seeking to have his suspension uplifted, the DDG faced several obstacles:
• His employment, as with all senior governmental employees, was governed by the SMS Handbook, which was silent on whether he was allowed to make representations prior to being suspended.
• A recent Constitutional Court case (the Chirwa case) has held, in effect, that a public sector employee does not, at least in the context of challenging a dismissal, have the right to approach the High Court (or the Labour Court directly) for what is really an employment matter. Such an employee should refer his or her dispute to the CCMA or relevant bargaining council for adjudication.
The DDG chose the Labour Court, and relied on the so-called audi principle – a contractual right to be heard before a decision adverse to your rights or interests is taken.
The judge had to decide whether the DDG was required to use his Labour Relations Act (LRA) rights rather than his contractual rights. Should the DDG’s case be decided in the Labour Court, or should the DDG rather have challenged his suspension as an unfair labour practice at the relevant bargaining council?
The DDG expressly declined to rely on the LRA. Rather, he relied on a contractual right: effectively that the MEC and the Premier had breached their contractual obligation to deal fairly with him.
The judge decided that Chirwa did not remove contractual rights which an employee can enforce either in the Labour Court or the High Court. This meant that he was able to consider the DDG’s claim in the Labour Court. The conclusion: without having been afforded a hearing, the DDG’s suspension was procedurally unfair.
The Chirwa judgment appears to require labour-related matters, which are principally about fairness, to be determined in terms of the LRA mechanisms. The Mogothle judgment might have the opposite effect and unravel the distinction between litigation in the High Court and in terms of the LRA.
Andrew Smith is a senior associate in the corporate law department and Robyn Hugo is a senior associate in the employment law department at Bowman Gilfillan