Case Number: PSESGAAR004035GP
Province: Eastern Cape
Applicant: MRS STEENEKAMP
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 3 December 1999
Arbitrator: M JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: PSES GAAR 004035 GP
In the arbitration between:
MRS STEENEKAMP APPLICANT
THE DEPARTMENT OF EDUCATION RESPONDENT
1.1 Mrs Steenekamp (the employee) is presently employed with the Gauteng Department of Education (GDE). In the present matter she is represented by the South African Union for Vocational and Specialised Education (SAUVSE). The employee has been currently charged with an alleged misconduct in terms of Section 17(1) of the Employment of Educators Act. 1998 (the Act). The disciplinary hearing is presently pending, and is not relevant for the purposes of this arbitration.
1.2 In terms of Section 21(1) of the Act:
“If an educator charged with misconduct:
a. Denies the charge: or
b. Fails to comply with the direction contemplated in section 19(2); the employer shall appoint a disciplinary tribunal consisting of a chairperson and two other persons, one of whom shall be nominated by the educator or the trade union of which the educator is a member, to enquire into the charge.
1.3 The crisp issue to be determined in this matter is whether the employer is liable to pay the legal fees for the representative of the employee who was nominated by the employee and appointed by the employer for the disciplinary hearing. A brief background to the events leading to the present arbitration can be summarised as follows:
1.3.1 In pursuance of Section 21(1) of the Act, the employee had nominated an individual by the name of Advocate B Van der Walt to the disciplinary tribunal. This nomination was ratified by the employer who appointed this particular individual.
1.3.2 On the 24th of February 1999, Webber Wentzel Bowens had communicated a letter to Spitz and Theron the latter acting on behalf of the employee that:
1. We confirm that in terms of section 21(1) of the Employment of Educators Act. 76 of 1998, your client is entitled to nominate one person to sit on the three person disciplinary tribunal that will enquire into the charges of misconduct against her. Kindly urgently provide us with your client’s nominee in this regard.
2. Further in this regard we confirm that on 7 December 1998 Mr B Van Der Walt advised our Mr S Eckstein that your client had chosen him as her nominee to sit on the disciplinary tribunal contemplated in the Act. In respect of Mr Van Der Walt we wish to point out that in terms of a letter written to our client and signed by Mr Van Der Walt on 24 November 1998 he had occasion to state, inter alia that ... I wish to draw your attention to the fact that there exist, in my opinion, no legal basis for the charges against her. He has also been generally actively involved in rendering legal assistance and advice to your client.
3. We are of the firm view that the above demonstrates that Mr Van Der Walt has already taken a view in regard to the merits of the matter. In the circumstances his nomination by your client as his nominee to sit on the disciplinary tribunal is not appropriate as he will be sitting in judgment in a case in which he has already made up his mind on the merits and has been actively involved in assisting one of the parties thereto.
4. Kindly therefore urgently provide us with the name of your client chosen nominee to replace Mr Van Der Walt so that the process of appointing the disciplinary tribunal and the setting down of the disciplinary enquiry can be completed.
1.3.3 The employee subsequently requested her legal representative to find an alternative substitute for Mr Van Der Walt. The name of Advocate Du Toit Maritz was nominated. The appointment was subsequently confirmed. Unbeknown to the employer. Advocate Maritz was to have been remunerated for his services for his participation in the disciplinary tribunal.
1.3.4 From November 1998, the employee had communicated with the Superintendent-General of the GDE. Mr Maseko, where she indicated that she would require a contribution or payment of her legal fees (emphasis added). In terms of a letter dated the 27th of November 1999, the employee stated:
“I have not been informed either by yourselves, or by the College Council of my rights regarding payment to my legal representation. Furthermore, I have not received notification of the date of the official enquiry, to enable me to test the availability of witnesses.”
1.3.5 In terms of a request for conciliation or mediation served by the employee on the employer, dated the 9th of July 1999, the relief sought is set out as follows:
“Merits for the ELRC to intervene so as to ensure that my legal fees are paid either by the GDE, the Johannesburg Technical College or my trade union, or a combination of the three. I repeatedly informed the GDE and my union that I would not be able to pay my legal fees. The GDE eventually replied on 28 June 1999, 7 months after proceedings were instituted against me. The college has extensive funds at its disposal and the unfairness of the process of non-payment of my legal fees disadvantages me. Similarly the GDE and the union have funds available.”
1.3.6 In terms of the request that I have referred to hereinbefore, the nature of the dispute is set out as follows:
“A series of unanswered letters relating to the payment of my legal fees.”
1.3.7 According to the evidence, an amount of R15 300.00 is due to Advocate Maritz. The employee has contributed towards the payment of this amount in the sum of R4 975.00.
1.3.8 A letter was communicated to the Superintendent-General on the 10th of June 1999 by the employee. The relevant portion of this particular letter sets out the following:
“I have indicated in three pieces of previous correspondence, both to the MEC, yourself and the Department, that I am unable to pay for the services of persons I would need to represent me. Department that I am unable to pay for the services of any legal persons who would assist me. To date, I have not received any responses for you or the GDE in this regard.”
220.127.116.11 For the purposes of clarity and completion, the letter that I am referring to in this paragraph is headed as follows:
“PAYMENT OF TRIBUNAL PANEL MEMBER
STEENEKAMP/JOHANNESBURG TECHNICAL COLLEGE”
1.3.9 The parties had presented a complete set of papers. It was agreed that the status of these papers were what they purport to be, and that no additional evidence was required for the proof thereof. However, during the course of argument, I required clarity on a particular aspect, an I then determined that the evidence of Ms C Clark the Director of Labour Relations in the Department be led in order to allow me to make a proper finding in this matter. According to Ms Clark, she has been in the position of a director for labour relations with the Department since August 1997. During the early stages, she assumed the position in an acting capacity. It is the unwritten policy of the Department according to Ms Clark that panellists who preside over a disciplinary tribunal are not paid for their services. She informed me that she is aware of approximately three hundred tribunals that were constituted, and in no single instance was a panellist paid for his or her service. This evidence was not strongly contested under cross-examination by Mr Peach acting on behalf of the employee.
1.3.10 At the commencement of the disciplinary hearing, there was no arrangement entered into between Advocate Maritz or any of the parties that a particular set of circumstances was agreed upon with regard to his payment. In fact Advocate Maritz was briefed by the attorneys of the employee to preside over the disciplinary hearing as a co-panellist.
1.4 Upon a proper construction of the Act, it is evident that the Act is silent with regard to the payment f the panellists who preside in a disciplinary tribunal. The procedure that has to be followed in a disciplinary tribunal has been set out in the Act. The approach adopted in the Act with regard to the procedure to be followed, extends to the enforcement of minimum procedural safeguards to ensure fairness and equity at all material times.
1.5 There is an inherent duty on the employer to act fairly at all times when a disciplinary tribunal has been convened. It has often been stated that this duty to act fairly is nothing other than to observe the principles of natural justice. With regard to the application of this duty, and the various ingredients that go together with it, in my view, the question should not be “did the employer/employee have to do it?” but rather “did fairness require it?”.
1.6 It is a rudimentary principle of workplace justice that the employee be given a disciplinary hearing before dismissal. This has now been legislated in the Act.
1.7 However the question that I have to ask myself with particular regard to the present matter is whether in the absence of an agreement, where Advocate Maritz has been nominated by the employee, whose nomination was confirmed by the employer and where in similar cases the panellist has not been paid for his/her services, the employer is liable for the fees of this particular panellist. It is trite that bad labour practices cause industrial unrest. Accordingly, those procedures that run contrary to accepted tenets of good labour practices are precisely the kind of practices other things being equal, that should not be allowed to develop. Where there is no clarity, then in these circumstances, clarity should be developed and communicated within the workspace. Where there is no certainty, there is a potential to sour the employer/employee relationship and consequently spark of an industrial conflict. In the arena of good labour relations, certainty is important because it would produce results that would avoid conduct that is unreasonable, capricious or harsh. Furthermore, certainty will ensure fair treatment that is in the public interest and accordingly, fairness will recognise that the dignity of human beings is at stake, and accordingly it will promote equitable labour relations.
1.8 A decision by an employer which seems either precipitate or ill-considered will inevitably tend to encourage conflict.
1.9 With the above sentiments in mind, in my view, whilst the legislator intended in the Act that in certain specified circumstances an employee may be allowed legal representation in the presence of a disciplinary tribunal, this in itself does not mean that the employer must in any way contribute towards the costs of such legal representation unless an appropriate order as to costs is made at the conclusion of the hearing. Each case will be determined on its own facts. It is now well established that when a statute has conferred on any body the power to make decisions affecting individuals, the Courts will not only require that the procedure prescribed by the statute be followed, but also will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
1.10 In any event, I did not understand Mr Ally acting on behalf of the employer in the present matter to argue that the employee was not entitled to legal representation at the disciplinary tribunal. However, he emphasised that the costs incurred in the employment of such legal representation must be for the account of the employee.
1.11 Upon a proper conspectus of all the correspondence that was submitted by the employee to the GDE, in my view, the employee enquired with special regard to the payment of her legal fees. This simply means that she requested financial assistance towards the payment of her attorneys. Save for a reference to the “payment of tribunal panel member” in a letter dated the 10th of June 1999whereafter no further information is set out, the employee fails to make this point in any of her letters submitted to the employer. In the present matter, the circumstances existing at all material times never gave occasion to allow the employee an impression that the fees of Advocate Maritz would be paid by the employer. The employee requested financial assistance, and the employer in the circumstances of the present matter refused such assistance. The letter by the Superintendent-General dated the 28th of June 1999 articulates this in a clear and unequivocal fashion wherein it is stated:
“With regret I wish to inform you that your request for the payment of Tribunal Panel Member cannot be favourably considered.
The department afforded you the opportunity to nominate a panellist of your choice. However, the department cannot accept liability for any remuneration of services rendered by such a person to yourself.”
1.12 This was fortified by the evidence of Ms Clark where she stated that in her experience as the Director for Labour Relations with the GDE, which extended over two years, no panellist was paid for his or her services in the performance of their duties at the tribunal.
1.13 It appears from the documents together with the evidence that it has always been the practice of the employer not to remunerate a panellist presiding at a disciplinary tribunal in circumstances such as those that are before me today. This evidence was not contradicted by the employee or her representative in any credible fashion. If I am to depart from this established practice, by affording special recognition to the present employee, then I would be doing grave harm to the established practice, which may inevitably lead to ill-considered consequences. The employer’s decision and appointment is clearly generated by financial considerations. If an employee were allowed to nominate a panellist and thereafter insist that such panellist be reimbursed by the employer, then I can well foresee that the cost of determining a dispute through a disciplinary tribunal will become exorbitant. The primary object of the inquiry, is in my view to endeavour to investigate any complaint against the employee as honestly and as objectively as is possible, so that the employee is not dismissed for want of a just cause and without having been afforded a fair and a reasonable opportunity of speaking in rebuttle or in mitigation of the complaint in accordance with the audi alterem partem rule. Where the employee has nominated an individual in terms of Section 21(1) of the Act, and such a nominated is appointed by the employer, and where there is no agreement with regard to the payment of the fees of this individual so appointed, then in my view, common sense and fairness dictates that the employee or his/her union be responsible for the payment of the fees of this particular individual. One important reason for this is to ensure that disciplinary hearings do not become an expensive exercise and thereby derogating from its essential character.
1.14 In all of the above circumstances, my ruling is that the employer, i.e. the Gauteng Department of Education is not liable for the payment of the legal fees of Advocate Du Toit Maritz.
3 DECEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR 004035 GP
APPLICANT MRS STEENEKAMP
RESPONDENT DEPARTMENT OF EDUCATION
ARBITRATOR M JAJBHAY
DATE OF ARBITRATION 2 & 3 DECEMBER 1999
In all of the above circumstances, my ruling is that the employer, i.e. the Gauteng Department of Education is not liable for the payment of the legal fees of Advocate Du Toit Maritz.
DATE OF AWARD 3 DECEMBER 1999