Interdicting a Disciplinary Inquiry

The Labour Court has jurisdiction to interdict any unfair conduct, including disciplinary action. Nonetheless, such intervention should be utilised sparingly and reserved only for exceptional circumstances.

By Nicolene Erasmus (Director, Labour Guide)

2023/06

Discipline is widely accepted as an employer function, and the Labour Court will only intervene in uncompleted disciplinary proceedings if exceptional circumstances exist. An illustrative instance arises when there is a high possibility of severe injustice, such as in cases where the fundamental rights of an employee are being flagrantly violated. The Labour Court’s reluctance to intervene in incomplete disciplinary inquiries can be attributed to three reasons:

• Firstly, it is acknowledged that employers possess the authority to initiate disciplinary proceedings against their employees. Consequently, any attempt to halt ongoing disciplinary proceedings in the workplace is seen as an unauthorised interference in the employer’s disciplinary jurisdiction.
• Secondly, interference by the Labour Court in workplace disciplinary and pre-arbitration proceedings could potentially undermine the effectiveness of the established statutory dispute-resolution system.
• Thirdly, such intervention would impede the timely resolution of labour disputes, causing unnecessary delays.

In Mkasi v Department of Health: KwaZulu-Natal and Another (D657/2019) [2019] ZALCD 4 (31 May 2019), the Labour Court did intervene where the employee requested the chairperson of the disciplinary inquiry to dismiss the allegations against him, arguing that the employer had forfeited its right to initiate disciplinary proceedings due to a significant delay. However, the chairperson did not render a decision on this matter and instead ordered the inquiry to proceed. The Labour Court granted an interdict to halt the disciplinary proceedings until a review application regarding the chairperson’s ruling could be completed.

The applicant in Femele v Fezile Dabi District Municipality (J 515/22) [2022] ZALCJHB 132 (19 May 2022), however, not did not have the fortune of a favourable outcome. After initially being employed as a Chief Internal Auditor, the applicant was subsequently transferred to the position of Chief Risk Officer. Feeling dissatisfied with the respondent’s decision, the applicant followed internal procedures and, subsequently, lodged an unfair labour practice dispute with the South African Local Government Bargaining Council. Arbitrator Le Fleur concluded that no unfair labour practice had occurred and dismissed the applicant’s referral. The arbitration award in question was taken on review. It is the applicant’s contention that while the review application is pending, the respondent is not permitted to proceed with a disciplinary hearing to address the following charge:

“In that during the period 26 July 2019 to 08 March 2022 you persistently, deliberately, seriously and calculated to undermine the Employer’s authority, refused to carry out the lawful and reasonable instruction(s) given verbally and/or in writing to you by the Municipal Manager: Me L. Molibeli, to transfer you from the Position of Chief Internal Auditor to that of Chief Risk Officer. You refused and/or continue to refuse to recognise yourself as the Chief Risk Officer and/or to assume all the responsibilities and duties as Chief Risk Officer and/or to move office.”

The applicant maintained that, based on the close connection between the charge and the transfer, which was under review at the Labour Court, he was entitled to an interim interdict to halt the disciplinary hearing until the review process was resolved. In opposition, the Municipality contended that the legality of the transfer was never challenged and the review is in a way a guise to challenge the legality of same. Furthermore, since the applicant had known as far back as 21 April 2022 that should the point in limine be dismissed, the disciplinary inquiry would still proceed, any sense of urgency is self-created.

Unsurprisingly, the Court held “in light if the aforementioned authority and for all the above reasons, the applicant has not shown exceptional circumstances for this Court to intervene in his ongoing disciplinary process. The disciplinary hearing is yet to begin, and there is a lot more road left for the applicant to travel. In addition, the applicant has adequate alternative remedies.”

In a strongly worded judgment, and in no uncertain terms, the Labour Court dismissed an urgent application with costs in George v Xolani and Others (J214/23) [2023] ZALCJHB 70 (10 March 2023). According to the Court, “this application is representative of the now familiar and habitual abuse of the urgent Court by employees, especially those who occupy senior positions in all spheres of government, especially in the municipalities. These employees, after being placed on prolonged periods of precautionary suspensions and when called upon to answer to the charges of misconduct, will take all means necessary in order to avoid the conclusion of those inquiries. When all the strategies deployed to avoid the hearing comes to nought, the next step is to seek sanctuary from this Court, with contrived and legally unsustainable urgent applications, with the hope that the serious charges of misconduct will vanish.”

The Labour Court similarly did not show sympathy for the employee in Salthiel Khomotso Ramthlakgwe v Modimolle-Mookgopong Local Municipality (JS562/23) (18 April 2023) who had not made a case for an urgent interdict “restraining the leading, presentation or solicitation of any evidence against him whatsoever, in furtherance of the prosecution of certain charges of misconduct at a disciplinary hearing which was set down to commence the day before the hearing of this application”.

The sense of extreme urgency arose when the applicant unexpectedly became aware that criminal charges had been laid against him with the police, specifically relating to the charges that were added through the amendment of the charge sheet. However, during the hearing of the urgent application, a consent order was issued to indefinitely postpone the disciplinary hearing until the delivery of this judgment, thereby diminishing the urgency.

The main issue for determination is whether an employer may be interdicted from starting or from proceeding with a disciplinary hearing where criminal charges have been laid, or are under investigation, or are pending before court. In other words, the question is whether any of the subset of rights enshrined in Section 35 of the Constitution, where an employee could be facing criminal charges relating to his alleged conduct at the workplace for which he faces disciplinary charges, would entitle the employee to protection by the courts from a disciplinary hearing that may be pending or proceeding against him or her.

What is clear from the above is that an interference in medias res is and has always been permissible. The circumstances in which such interference may be necessary will always depend on the facts of each case, specifically where miscarriage of justice, grave injustice or prejudice might otherwise occur. Generally, the default position is to allow proceedings to continue uninterrupted until they are completed.

This article does not constitute legal advice and is based on the author’s interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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