Rudolph v Mananga College & Another (94/2007) [2007] SZIC 17 (30 April 2007);

IN THE INDUSTRIAL COURT OF SWAZILAND

Held at Mbabane                                                            Case No. 94/2007

In the matter between:

GRAHAM RUDOLPH                                                      Applicant

 

And

 

MANANGA COLLEGE                                                    1^st Respondent

LEONARD NXUMALO N.O                                             2^nd Respondent

 

CORAM:

P. R. DUNSEITH            :         PRESIDENT

ANDREAS NKAMBULE  :         MEMBER

NICHOLAS MANANA      :         MEMBER

 

FOR APPLICANT            :         MUSA SIBANDZE

FOR RESPONDENT       :         ZWELI JELE

_____________________________________________________________

JUDGMENT

_____________________________________________________________

1. The Applicant is the Principal of Mananga College, a prestigious high school at Mananga, Lubombo district.

 

1. A contractual dispute arose between the Applicant and the Board of Governors of the College regarding the Applicant’s remuneration, and whether the Applicant had been overpaid during the previous two years of his contract.

 

1. On the 15^th February 2007 Mr. Gilbert Ndzinisa, the Chairman of the Board, wrote to the Applicant contending that he had deliberately engineered the restructuring of his remuneration package, resulting in his overpayment.
2. The Applicant took this to be an accusation of dishonesty and an attack on his integrity and tendered his resignation, claiming that he had been constructively dismissed. The letter of resignation indicated that the Applicant would serve notice until the end of June 2007.

 

1. The College refused to accept the Applicant’s resignation, and summoned him to a disciplinary enquiry. The Applicant was suspended pending finalization of the enquiry.

 

1. The notice to attend the disciplinary hearing is dated 23^rd February 2007 and sets out the charges against the Applicant. The charges involve serious allegations of dishonesty and misconduct, accusing the Applicant of benefiting himself financially by unauthorized restructuring of his remuneration and payment of package.

 

1. The notice is signed by Gilbert Ndzinisa in his capacity as Chairman of the Board of Governors, and states in its opening paragraph;

 

“…having considered your response to the allegations, I have decided to institute a formal disciplinary enquiry in this matter.”

 

It is apparent ex facie the notice that Mr. Ndzinisa is the initiator of the disciplinary charges and the complainant.

 

1. The notice advises the Applicant of his rights, including the right “to be represented by a fellow employee”.

 

1. On the 27^th February 2007 the Applicant attended at the enquiry accompanied by his attorney Mr. Musa Sibandze. The Chairman of the enquiry was the 2^nd Respondent, Mr. Leonard Nxumalo. Also present were Mr. Gilbert Ndzinisa and Mr. Schei, a member of the Board of Governors. For ease of reference, the persons in attendance will be referred to in his judgment by their surnames and no disrespect is intended.

 

1. The Chairman Nxumalo is not an employee of the College. He is the Human Resources Director of Swaziland Water Services. The College elected to appoint an independent, external person to preside over the disciplinary enquiry.

 

1. At the commencement of the enquiry, Sibandze informed Nxumalo that the Applicant wished to have legal representation. Nxumalo responded to the effect that “we will not allow legal representation at this stage in that this is an internal disciplinary hearing”.

 

1. The Applicant takes exception to the Chairman’s use of the word “we”, as signifying that Nxumalo allied himself with the members of the College Board present at the enquiry. The Respondent also queries Nxumalo’s spontaneous refusal to allow legal representation without first hearing Sibandze’s submissions or ascertaining the attitude of the College.

 

1. On being pressed, however, Nxumalo allowed Sibandze to motivate the application for legal representation by giving reasons and citing legal authority. Thereafter, without inviting any response from the College representatives, the Chairman stated that he needed to consult his principals, whereafter he would give his decision. He then asked the Applicant and Sibandze to leave the office.

 

1. The Applicant and Sibandze left the room. Nxumalo remained with Ndzinisa and Schei. After some 20 minutes, Nxumalo emerged to say that he was still making some telephone calls. A further 30 minutes elapsed whilst the Chairman remained closest with Ndzinisa and Schei. He then called Applicant and Schei back into the office and told them that he had decided to allow legal representation. He also ruled that the disciplinary hearing be postponed to the following day to allow the College to arrange their own legal representation.

 

1. It transpires that whilst the Applicant and Sibandze were outside the office, Nxumalo first consulted with the College representatives, and then telephonically with Mr. Zweli Jele, attorney for the College, on the application for legal representation. Mr. Jele recommended that legal representation be allowed. Nxumalo did not however disclose to the Applicant and Sibandze that he had taken advice from the College’s attorney, and the fact of this consultation only came to light the following day.

 

1. The Applicant’s counsel submits that the conduct of the Chairman was irregular and contrary to fair process, and it indicates that Nxumalo is not independent and impartial. The Applicant asks the court to infer that Nxumalo is subservient to the wishes of his principals and there is reason to believe that he will only make a decision which he believes to be authorized or sanctioned by the College.

 

1. The Respondent’s counsel on the other hand states that there was nothing abnormal in the adjourning to consult with the College and its legal adviser, and his conduct is not indicative of bias or disposition towards bias. After all, following the consultation and advice, Nxumalo allowed legal representation.

 

1. In explanation of the conduct of Nxumalo, the Respondent’s counsel points out that the Applicant never alerted the College in advance that he wished to have legal representation. In terms of the notice of disciplinary hearing, the Applicant was not entitled to legal representation. The arrival of Sibandze at the enquiry took the College representatives and Nxumalo by surprise. The involvement of lawyers in an internal disciplinary enquiry is unusual and has potentially grave implications regarding costs, prolongation of the proceedings, and the establishing of precedent. Nxumalo cannot be faulted for seeking consultation and advice from the College representatives, according to the Respondent’s counsel, and no adverse inference as to bias or lack of independence should be drawn.

 

1. The following day, when the hearing resumed, the same parties were present. Mr. Zweli Jele, attorney for the college, was also in attendance. Sibandze applied for the recusal of Nxumalo, stating that he was not independent as shown by his consulting with the complainant Ndzinisa in the absence of the Applicant regarding a decision he had to make.

 

1. Nxumalo responded, without hearing Jele’s views, to the effect that “I wish to make it clear that I will not recuse myself, I have been appointed to chair this disciplinary hearing and I will do so.”

 

1. The enquiry then proceeded. Ndzinisa testified and was partially cross-examined when the hearing had to be adjourned for lack of time. The hearing was adjourned to 9^th March 2007. On 6^th March 2007 the Applicant launched an urgent application in this court, claiming the following relief:

 

21.1       That the 2^nd Respondent be and is hereby removed from acting as the Chairman in the on-going disciplinary hearing of the Applicant.

 

21.2       That the 1^st Respondent be and is hereby ordered to appoint a new Chairperson of the on-going disciplinary hearing of the Applicant.

 

21.3       That the disciplinary hearing of the Applicant begin de novo under the Chairperson to be appointed under the prayer (21.2) above.

 

21.4       Granting costs of the application on the scale as between attorney and own client against the Respondents.

  

1. The matter was fully argued in court on 8^th March 2007. By agreement between the parties the disciplinary hearing was postponed to 14^th March 2007 pending the judgment of the court.

 

1. The importance of fair procedure in disciplinary enquiries was emphasized in Twala v ABC Shoe Store (1987) 8 ILJ 714 (IC) where the Industrial Court of South Africa held that “[n]atural justice is a process of value in itself. It is an end in its own right…” It is so fundamental in the context of industrial relations, said the court, that it “should be enforced by [the] court as a matter of policy, irrespective of the merits of the particular case.”

 

1. the audi alteram partem rule of natural justice requires that disciplinary proceedings should be conducted in the presence of the affected parties. There is no doubt that it was an irregularity for Nxumalo to hear representations from the college representatives on the question of whether to allow legal representation, in the absence of the Applicant. The correct procedure was for Nxumalo to ascertain the views of the college in the presence of the Applicant. There could have been no objection to Sibandze being told to wait outside whilst the question of his right to appear was debated and determined, but the exclusion of the Applicant whilst Nxumalo consulted with Ndzinisa and Schei was clearly irregular.

 

1. This irregularity in itself does not vitiate the disciplinary proceedings, because the Applicant suffered no immediate prejudice: the Chairman finally granted the application for legal representation. The Applicant argues however that the conduct of Nxumalo has disqualified him from continuing with the hearing because it reveals bias and lack of independence. The court is called upon to decide whether the Applicant’s apprehension that he will not be afforded a fair hearing under the chairmanship of Nxumalo is reasonable and valid.

 

1. One of the elements of fair hearing is that the person taking the disciplinary decision should act in good faith: he should not be biased; he should enter into the proceedings with an open mind without prejudicing the issues; and he must make up his own mind on the matter without deferring to the opinion or decision or desired outcome of other persons. See Le Roux & Van Niekerk: The South African Law of Unfair Dismissal 162-163.

 

1. The test for determining bias in our common law is the ‘existence of a reasonable suspicion of bias.’ Actual bias, or a real likelihood of bias, need not be proved. The matter is to be viewed from the standpoint of a lay person, and the test to be applied is objective. See BTP Industries SA (Pty) Ltd & Others v Metal & Allied Workers Union & Another 1992 (3) SA 673 (A) at 693I-J; (1992) 13 ILJ 803 (A).

 

1. The question is whether the same standard should be applied in the employment context. One should be careful not to equate an internal disciplinary hearing with proceedings before a court of law or an administrative tribunal. Although the presiding officer in a disciplinary enquiry is required to be impartial, he is at the same time a representative of the employer. Frequently, the chairman of the enquiry will be a manager of the employer, operating within a hierarchy, required to apply the policies and standards set by those in control of the company, and subject to all manner of direct and indirect influences from his colleagues and superiors. Even when the chairman, like Nxumalo, is external and independent, he has usually been appointed and briefed by the employer unilaterally, and he is being paid for his services by the employer.

 

1. The eminent constitutional judge Edwin Cameron wrote in ‘The Right to A Hearing Before Dismissal – Part 1’ (1986) 7 ILJ 183 at 212: “In the employment context the full rigour of the law as it has developed in relation to statutory or domestic tribunals is not applied. The person or persons deciding on guilt or innocence and on the appropriate penalty will in many cases know the accused employee (including past history, employment record, previous warnings) and may even have formed some initial impression as to the events in issue. In a sense the employer is necessarily a judge in his or her own cause.”

 

1. In Foster v Chairman, Commission for Administration 1991 (4) SA 403 (C), the court refers to the notion of ‘institutional bias’, which allows a person to chair a hearing even where his connection with the institution concerned might arouse a suspicious of inevitable bias, provided there is no proof that he is actually biased. If the reasonable suspicion test were to be applied, most if not all managers appointed as chairpersons for internal disciplinary hearings would be disqualified on the basis of institutional bias.

 

1. In the case of Dumbu & Others v Commissioner of Prisons & Others (1992) 13 ILJ 78 (E), Jone J. distinguished between institutional bias and other forms of bias. He found that whilst the ‘probability of actual bias’ test operates in cases where the bias is institutional, there is no reason why the ‘reasonable suspicion’ test should not apply where the suspected bias arises from the individual conduct or partiality of the chairperson, or has its origin in some other area. This was also the approach in Foster v Chairman, Commission for Administration (supra).

 

1. Cameronin ‘The Right To A Hearing Before Dismissal – Part 1’ (op.cit. at 212) agrees with this approach:

“The principle seems to be this: while allowance will be made for the unavoidable practicalities of prior contact, personal impression and mutual reaction in the employment relationship, any further feature which precludes the person hearing the complaint from bringing an objective and fair judgment to bear on the issues involved – such as bias or presumed bias stemming from a closed or prejudiced mind or from a family or other relationship – will render the procedure unfair. The importance of appearances in this area must not be left out of account and it is submitted that where an employee has a reasonable basis for believing that something more than merely the traces unavoidably left by prior contact in the employment relationship, is present and that this precludes a fair hearing, a complaint on the ground of bias should be upheld.”

 

1. The application of the common law test for disqualifying bias is not, in our view, inappropriate to the context of employment. Confidence in the disciplinary process is an important part of harmonious industrial relations and the avoidance of conflict at the workplace. Grave consequences, including the loss of livelihood, may flow from the disciplinary enquiry. Impartiality of the presiding officer and the appearance of independence is as important in private disciplinary hearings as in judicial and public administrative hearings, subject to proper allowance being made for the ‘institutional bias’ implicit in the employment disciplinary process.

 

1. We agree with the views expressed by Jones J in Dumbu’s case (above) at 84:

 

“Every hearing of a disciplinary nature must not only be a fair hearing, it must also be seen to be fair hearing. It cannot be seen to be a fair hearing if reasonable people think that the presiding officer may be biased. Therefore, the proper approach is to apply the wider test of reasonable suspicion to its full extent in every case where bias or self-interest is the issue…”   

 

See also National Union of Metalworkers of SA on behalf of Dolley and Others v Formex Engineering (2005) 26 ILJ 1557 (BCA), where the common law test was applied.

 

1.  The Applicant is not complaining of institutional bias. He alleges that the conduct of Nxumalo indicates bias or lack of independence beyond the mere fact that he has been appointed by the College. Applying the common law test, the court determine whether the conduct of Nxumalo as chairman of the disciplinary enquiry would cause a layman in the position of the Applicant to reasonably suspect bias or lack of independence on the part of Nxumalo which precludes the likehood of a fair hearing.

 

1. The conduct complained of may be summarized as follows;

 

36.1       Nxumalo consulted with college management and its attorney in the absence of the Applicant during the course of the hearing;

 

36.2       The consultation related directly to a decision Nxumalo was called upon to make;

 

36.3       Nxumalo failed to disclose to the Applicant that he had taken legal advice from the college’s attorney;

 

36.4       Nxumalo rejected an application for his recual out of hand and without properly applying his mind to the issues.

 

1. The Respondent’s counsel referred the court to the case of Mondi Timber Products v Tope (1997) 18 ILJ 149 (LAC), where the South African Labour Appeal Court held that it was not unprocedurally unfair for the chairperson to caucus with senior management during the course of a disciplinary hearing. The LAC in coming to this conclusion relied on the prior judgment of the LAC in the case of Anglo-American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13  ILJ 573 (LAC).

 

1. The judgment of Thring J. in the Anglo-American Farms case is in our respectful view open to substantial criticism. Thring J. had no problem with the chairperson presiding over an enquiry in which she was effectively the complainant and principal witness; discussing evidence over the telephone with material witnesses in the absence of the employee; and having secret consultations with her manager and the industrial relations manager regarding procedure, policy and the decision she should take, because “at disciplinary hearings presided over by laymen, it cannot be expected that all the finer niceties which a formal court of law would adopt will always be observed.” The entire judgment is premised on the approach that procedural fairness has no value in itself, an approach which has been firmly rejected – see Rycroft: A Guide to SA Labour Law (2^nd Ed.) 205-206 and Brassey et al: The New Labour Law 79-80. On the question of bias, Thring J. states:

 

“It was suggested in argument that Munnik (the chairperson) was baised or prejudiced against respondent, or could have been thought to be so. But there is no evidence that she was in fact biased or prejudiced, at least as regards the question of respondent’s guilt or innocence, nor was this suggested to her in evidence……… Nor, it seems to me, would ‘an informed independent observer – or a litigant himself’ (Monning & Others v Council of Review & Others 1989 (4) SA 866 (C) at 881D) reasonably have thought, in these circumstances, that ‘the risk of unfair determination…was unacceptably high”(at 881I).

 

Clearly Thring J. did not apply the common-law test for disqualifying bias, and required proof of actual or probable bias. His comments at page 583 of the judgment also reveal, with respect, a lack of appreciation of the different tests to be applied with respect to institutional bias due to other factors. 

 

1. We do not consider that the judgment in the case of Mondi Timber Products v Tope and Anglo-American Farms t/a Boschendal Restaurant v Komjwayo reflect the correct approach of modern labour law towards procedural fairness and bias, and they cannot be of any assistance to us.

 

1. In SA Breweries Ltd v Food and Allied Workers Union and Others (1992) 1 LCD 16 (LAC) the South African Labour Appeal Court held that it was not improper for the chairperson of a disciplinary enquiry to seek the guidance of his seniors for the purposes of coming to a just conclusion on the proper sanction to impose. The court held that it could not be expected of him to maintain the isolation of a judge and furthermore, the question of an appropriate sanction was not only a judicial matter but was also one of company policy. The court stressed however that the chairperson may not allow his judgment or discretion to be directed by others. Le Roux & Van Niekerk at 168 also express the view that presiding officers at disciplinary hearings should be able to seek guidance and advice from management so that their decisions are consistent with the policies and standards of the employer.

 

1. The LAC and the learned authors do not however explain why such guidance and advice should not be sought and given at the hearing in the presence of the employee. After all, the employee is entitled to challenge the existence of a company policy or procedure, and even its fairness, and it is not in accordance with fair process and natural justice that a presiding officer reaches a decision influenced by factors disclosed to him without the employee’s knowledge. In our view, once the disciplinary enquiry has commenced, all representatives to the presiding officer regarding issues arising for decision, including matters of policy and procedure, should be transparently ventilated at the enquiry in the presence of all interested parties.

 

1. The Applicant submits that Nxuamlo’s conduct gives rise to the suspicion that he is subservient to the will of the college management and that he is not independent and open-minded in his chairmanship of the enquiry. The evidence falls far short of establishing actual bias or bad faith. Although Nxumalo must be no stranger to disciplinary enquiries, being the Human Resources Manager of a large parastatal corporation, the court is inclined to believe that he was surprised and intimidated by the sudden appearance of a lawyer at an internal disciplinary enquiry. His initial rejection of the application before it could be motivated is understandable in that light. It is more difficult to justify his consultations with management in the absence of the Applicant. There is no reason why he could not have obtained management’s response to the application in open hearing. Ndzinisa, the chairman of the college board, is a nominated member of the Industrial Court, appointed for his knowledge and experience in labour related matters. As college representative, he could have opposed the application for legal representation, or requested an adjournment to consider the position or consult with the college attorney. It is not surprising that the decision of Nxumalo to caucus for more than an hour behind closed doors with Ndzinisa and Schei, and the willingness of Ndzinisa and Schei to participate in that irregular caucus, caused disquiet to the Applicant and his attorney. Nxumalo and Ndzinisa may only be guilty of poor judgment but their actions do give rise to an appearance of collusion. The decision of Nxumalo to adjourn the hearing to enable the college to obtain legal representation was clearly reached by consensus in the absence of the Applicant. The Applicant’s disquiet increased when it was later discovered that Nxumalo solicited advice from the college attorney but never disclosed that he had done so, and his apprehension would not have been alleviated by Nxumalo’s rejection of the recusal application in terms which do not suggest an open mind.

 

1. The court believes that due to the inevitable presence of institutional bias in disciplinary hearings, there is a strict duty on presiding officers to conduct the enquiry in such a way that the appearance of impartiality and independence is scrupulously maintained. We agree with the minority view in the Mondi Timbers case that the importance of impartiality remains undiminished in the employment context, because it engenders confidence in the disciplinary process and reduces the potential for industrial conflict. The strict approach to impartiality and independence is reflected in the application of the common law test of reasonable suspicion to bias other than institutional bias.

 

1. In our view, the Applicant’s suspicion that Nxumalo is not impartial and will defer to management in the conduct of the hearing is reasonable, based on the actions of Nxumalo, in particular his willingness to caucus with management in the absence of the Applicant, his lack of transparency thereafter, and his obdurate response to the recusal application. We should not be taken to be saying that Nxumalo acted in bad faith or that he has been shown to have actual bias but only that a reasonable suspicion exists and that the appearance of a fair hearing is thereby precluded.

 

1. Mr. Jele for the Respondents submitted that the Applicant elected to proceed with the disciplinary hearing after his recusal application had been refused, and he thereby acquiesced in the hearing proceeding under the chairmanship of Nxumalo. We do not consider that the Applicant’s participation in the hearing in any way intimates an unequivocal waiver of his right to challenge the decision of the chairman or precludes him from bringing this application to court.

 

1. The court has often expressed its reluctance to interfere with the prerogative of an employer to discipline its employees or to anticipate the outcome of an incomplete disciplinary process. See Bhekiwe Dlamini v Swaziland Water Services Corporation (ICA Case N. 13/2006); Thobile Bhembe v Swaziland Government and Others (IC Case No. 5/2001); Swaziland Electricity Board v Michael Bongani Mashwama & Others (ICA Case No. 21/2000). At the same time, the court will interfere to prevent an unfair labour practice which may cause the Applicant irreparable harm. The outcome of the disciplinary hearing will have a significant impact on the Applicant’s future career as a school principal. Having resigned from the college, the result of the enquiry will determine whether he leaves with the stigma of dishonesty. He is entitled to expect a fair hearing under the chairmanship of an independent person whose independence and impartiality is beyond suspicion.

 

1. The court make the following order;

 

1. The 2^nd Respondent be and is hereby removed from acting as the Chairperson in the on-going disciplinary hearing of the Applicant.

 

1. The 1^st Respondent be and is hereby ordered to appoint a new chairperson of the on-going disciplinary hearing of the Applicant.

 

1. The disciplinary hearing of the Applicant shall begin de novo under the Chairperson to be appointed under prayer (b) above.

 

1. There will be no order as to costs.

 

The members agree.

 

 

___________________________

PETER R. DUNSEITH

PRESIDENT OF THE INDUSTRIAL COURT