16 December 2008

"Second generation" outsourcing contracts: section 197 no longer plays a role

It is generally accepted that employees must abide by their employers' right to conduct internal disciplinary enquiries, and must submit themselves to the process as largely dictated by the employer. However, it has also been held fairly often that the Court could interfere prior to conclusion of an internal disciplinary process, under exceptional circumstances, to ensure that the employee is not treated unfairly in the internal disciplinary process, where for instance grave injustice or miscarriage of justice might otherwise result. See for instance Mantzaris v University of Durban Westville and Others (2000) 21 ILJ 1818 (LC).

In the matter of Mr. Booysen v the SAPS, the contrary view is, however, expressed. Mr. Booysen sought the Court's intervention in a disciplinary process conducted against him by his employer. A decision had been made by the Chairperson appointed by Mr. Booysen's employer to the effect that Mr. Booysen was fit and capable to participate in an internal disciplinary enquiry.

This determination followed upon an earlier Court application, which had resulted in an agreement between the parties, to the effect that Mr. Booysen's ability to participate should be determined by the appointed Chairperson. Mr. Booysen averred that he was incapable of participation, in consequence of suffering from post traumatic stress disorder. Both Mr. Booysen and his employer had led the evidence of expert witnesses regarding his ability to participate. After having listened to the respective experts, the Chairperson decided that Mr. Booysen was indeed able to participate in the disciplinary enquiry.

Mr. Booysen asked the Court to intervene, effectively seeking a review of the aforementioned decision of the Chairperson of the disciplinary enquiry.

Mr. Booysen's legal team contended that the Court should have jurisdiction to intervene on one or more of the following grounds:

  • the right to a fair dismissal procedure under the Labour Relations Act 66 of 1995 (the LRA);
  • the breach of the constitutional rights to dignity, fair labour practices and fair administrative action; and/or
  • the inherent power of the Court to remedy an injustice.

Cheadle AJ evaluated each of the grounds relied on by Mr. Booysen and came to the following conclusions:

  • In respect of the first ground relied on by Mr. Booysen, the LRA defines the "four walls" of the Court's jurisdiction.

None of the sections evaluated expressly cloth the Court with the necessary jurisdiction to interfere in internal disciplinary enquiries. Even on a purposive interpretation of the LRA, Cheadle AJ found that the LRA could not be interpreted to provide the Court with the requisite jurisdiction to intervene in disciplinary proceedings.

  • The argument that Mr. Booysen should have a constitutional right to the Court's interference also met with no success. Cheadle AJ evaluated each of the constitutional grounds relied on, and rejected them in turn.
  • Cheadle AJ also concluded that there is no indication in the LRA that it intended to grant the Court a so-called "...roving power to correct any injustice outside of the specific areas in which it is given jurisdiction." This also put paid to the final argument.

The judgment is bound to reverberate in employment circles as it appears to affirm the right of employers to manage their own internal disciplinary processes without outside undue interference. Employees are thus left to challenge the fairness of the dismissal at the CCMA, Bargaining Council or Labour Court after the event.

Retha Beerman

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