Mogothle v Premier of the Northwest Province; The member of the executive council for agriculture conservation and the environment
Case No. J 2622/08
Judgement Date: 05 January 2009
Jurisdiction: Labour Court, Johannesburg
Judge: Van Niekerk, Judge
Subject: Suspension without a hearing
Issue: The Employee, who was a deputy director general of department of agriculture and development in NWP, brought an urgent application to set aside his suspension after he had been indefinitely suspended to allow the Employer to investigate into the alleged corruption allegations against him. Held that his suspension had been unfair/ unlawful.
Summary of facts: The employee was employed by the Department in April 2006. Allegations of corruption were levelled against the employee in an article in the Mail & Guardian on 4 November 2008. On 10 November 2008, the MEC appointed Auditors to investigate the allegations. At this time the employee was not suspended. On the 18 November 2008 the Minister of the Executive Council requested the employee to take a leave of absence pending an investigation into his alleged acts of corruption. He agreed to this on the basis that the investigation would be completed by month-end and he would be allowed to return to work. On the 1 December 2008 the employee reported for duty, whereupon his leave was extended until 14 December 2008 so that the auditor general’s investigation might commence. It then became clear to the MEC that this was an unrealistic target date and he was placed on extended leave for an indefinite period. The employee then filed this application. He claimed that his suspension was unlawful for the following reasons: 1) decision to suspend was taken by Employer under direction from Northwest legislature and not in exercise of discretion entrusted to them & 2) certain jurisdictional preconditions for suspension weren’t satisfied and 3) he wasn’t heard before the decision to suspend him was taken. The Employer argued that the LRA does not provide for pre-dismissal hearings and therefore the employee has no right to claim he was unfairly suspended.
Summary of Judgement: The court held that the Employer failed to afford the employee a fair hearing prior to his suspension. In previous cases the court has emphasised the mutual relationship of trust and confidence that the common law contract of employment imposes on employers and employees, and should be developed in light of the constitution. Employees have the right to be fairly treated, this right may be enforced by employees substantively and procedurally, it exists independently of statutory protection against unfair dismissal and unfair labour practice. The principle of fair dealings between employer and employee must be applied. This requires that the employer has to have a justifiable reason to believe that the employee has engaged in serious misconduct and that there is an objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy. Additionally the employee should be given the opportunity to state his case before the employer makes a final decision to suspend the employee. In regard to procedural fairness, the audi alteram partem principle requires that prior to his indefinite suspension, the employee should have been given an opportunity to respond to any proposal that affected him. Suspension has the result that the employee suffers prejudice to his or her reputation, advancement and fulfilment. It is not for the employee to request a hearing, but for the employer to offer one. The hearing should be a process of dialogue and reflection and therefore it need not be a formal process.