Motale v The Citizen 1978 (Pty) Ltd (J2819/16) [2017] ZALCJHB 22 ; [2017] 5 BLLR 511 (27 January 2017) per D Gush J.

Suspended editor dismissed:  Employees have been legally protected for nearly 40 years against unfair dismissal.  So it rather startling when it is argued on behalf of the owner of a newspaper that the editor could be summarily dismissed.  In other words the employer argued vainly that if the employer believed the employment relationship was irretrievably broken due to incompatibility it was lawful and fair to dismiss without notice and without a right to respond to any allegations.

In other words the argument seems to assume that the former common law principles still apply and a reason or procedure is not required.  But even the common law requires reasonable notice, unless there is a material breach, and if challenged the employer must prove the breach.

Gush J in the labour court had little hesitation in finding that the purported summary dismissal of the editor was not only unlawful but also unfair and deemed never to have happened.  But his precautionary suspension continued to apply, although there does not appear to have been any real resistance to that part of the order, presumably because it was on full-pay.

Excerpts without footnotes

[4]   The relief that the applicant seeks in his application can conveniently be divided into two separate parts. The first part relates to an averment by the applicant that his suspension and dismissal is a violation of “editorial independence” and a violation of section 16(1)(a) of the Constitution of the Republic of South Africa.

[5]   The relief that the applicant seeks in the second part of his application is for an order declaring the termination of his contract to be a breach of his employment contract dated “1 November 2013 read together with the first respondent’s disciplinary code” and accordingly for an order declaring the termination of his employment to be null and void. The effect of such an order would be to reinstate the applicants contract of employment with the first respondent.

. . . . .

[7]       What is abundantly clear from the above is that the second respondent not only assumed as a matter of fact, in the absence of an enquiry, that her view of the applicant was guilty of misconduct was correct and that her conclusion that this relationship had caused an irretrievable breakdown.

. . . . .

[13]      What remains therefor is to consider the second part of the relief sought by the applicant viz.  the applicant’s application for an order declaring termination of his contract to be a “breach of his employment contract read with the disciplinary code”.

. . . . .

[16].     The first respondents disciplinary code is contained in a document headed “Disciplinary Codes Procedures and Guidelines; The Citizen 1978 (Pty) LTD” that specifically provides that “and procedure forms part of the individual contract of employment of every employee”.[1]

[17].     The Disciplinary Code under the heading “GENERAL PRINCIPLES” allows the first respondent the “discretion to suspend an employee” for the purposes of the disciplinary investigation and hearing.  Under the heading “THE RIGHTS OF THE EMPLOYEE” the employee is entitled “to hear the case against him” and when subject to “formal disciplinary action” the rights include inter alia: the right to a clear explanation offence an opportunity to state their case the right to representation the right to share testimony against him in question the witnesses.[2]

[18].     Mr.  Bruinders who appeared for the respondents argued that the decision to terminate the applicant’s contract of employment had nothing to do with misconduct.  He was adamant that as the second respondent was of the view that the employment relationship had broken down and that the parties were incompatible the respondent was not obliged to conduct a disciplinary hearing and was entitled to simply and summarily terminate the applicant’s contract.  Mr.  Bruinders also suggested that it was common cause that the applicant was guilty of failing to comply with the policy.

. . . . .

[21].     The third respondent, who somewhat grandiosely concluded that the first respondent was “entitled to dismiss Motale with immediate effect”,[1] contradicts in his report that the averment that the matter was not about conduct or misconduct on the part of the applicant but simply incompatibility.

In his report[2] he records:

21.1   That he had considered the representations made by the second respondent regarding the “alleged breakdown in the relationship trust and confidence”.  (Emphasis added)

21.2   “accordingly, I consider that this matter relates, not to what was published in the newspaper, but rather about adherence to the agreed procedures and upholding the editorial principles of the Citizen.”

I find that the relationship of trust and confidence is broken down between the publisher and Motale.  I further find that Motale is solely responsible for this breakdown, that the breakdown is irretrievable and that the ongoing employment of Motale is accordingly rendered untenable.  In this sense then, Motale is found guilty, to the extent of a guilty finding is necessary of being responsible for irretrievable breakdown in trust and confidence…”

[22].     What emerges from the papers is that the second respondent and the applicant were at loggerheads over the applicant’s compliance with the policy regarding the submission of specific articles to the first respondent’s legal advisors before publication.  The second respondent was clearly of the opinion that the applicants had failed to comply with the policy and as such he was guilty of misconduct.  Having so concluded, the second decided initially that the alleged misconduct warranted the institution of disciplinary proceedings against the applicant.  Accordingly, the second respondent suspended the applicant.

. . . . .

[25].     The second respondent, having made the unexplained and unjustified leap from accusing the applicant of misconduct to simply assuming he was guilty thereof then decided that this constituted an irretrievable breakdown in the relationship between the applicant and the first and second respondents.  This not only ignored the applicant’s contractual right to be treated in accordance with the disciplinary procedure with regard to the applicant’s guilt or otherwise.  The second respondent simply assumed that as a fact the relationship had broken down.  A conclusion unsurprisingly shared by the third respondent.

[26].     One of the difficulties in the procedure adopted by the second and third respondents in their desperate attempt to avoid the issue of deciding on whether or not the applicant was guilty of the misconduct was to decide as a fact that the trust relationship had broken down.  They appear simply to have elected to disregard the applicant’s alleged misconduct that was initially put to him as being the cause of the breakdown of the employment relationship.

[27].     What remains unexplained is what led the respondents to abandon the original proposal of affording the applicant a properly constituted disciplinary inquiry procedure regarding his alleged misconduct.  Whilst the second and third respondents make much of the failure of the applicant to make written representations on what was essentially an issue in mitigation, what is abundantly clear from the applicant’s correspondence is that he did not regard himself as being guilty of the alleged misconduct.

[28].     There are number of judgments dealing with the failure of an employer to comply with its disciplinary procedure, specifically when the disciplinary procedures form part of the contract of employment.  In both Ngubeni v NYDA and Solidarity v SABC[1] the Court held that failure of an employer to comply with its disciplinary code procedure, where the disciplinary code procedure forms part of employee’s contract is a breach of that contract entitling the employee to relief.

In both matters the court declared the decision by the employer to terminate the contract without complying with the disciplinary code to a breach of contract entitling the employees to be reinstated.

[29].     The applicant’s contract of employment specifically incorporates the disciplinary code and procedure and it is clear that the respondents had not complied with the disciplinary code and procedure when they terminated the applicant’s contract.  As a result, I am satisfied that the respondents’ termination of the applicant’s contract of employment constituted a breach thereof and that the applicant is entitled to be reinstated.

[30].     Given the specific circumstances of this matter and in particular the applicant’s complaint regarding the failure of the respondents to conduct a disciplinary inquiry and the position he found himself in at the time of termination of his contract it is appropriate that his reinstatement be accompanied by an order directing the respondent’s comply with the disciplinary code and procedure, in other words in order for specific performance.