Generally, employees must abide by their employer's right to conduct internal disciplinary procedures in accordance with their own disciplinary codes and procedures. In Booysen v South African Police Services & another 2008 (10) BLLR 928 (LC), Cheadle AJ held that the Labour Court has no jurisdiction under section 157 of the Labour Relations Act 66 of 1995 (LRA) to intervene in disciplinary proceedings, primarily on the basis that only the CCMA or a bargaining council has jurisdiction to determine the procedural fairness of a dismissal. The court concluded as follows:
"Section 151(2) is perfectly clear - the Labour Court has the inherent powers of the High Court but only 'in relation to matters under its jurisdiction'. Its jurisdiction, as I have held, does not include interfering with disciplinary hearings."
The Labour Court had to consider this jurisdictional question again in the recent matter of Victoria Moya v Standard Bank of South Africa Limited (unreported judgment, (case no: J2010/10, dated 12 October 2010). The applicant instituted an urgent application seeking to interdict her disciplinary enquiry pending the outcome of a constructive dismissal dispute which the employee referred to the CCMA. After several meetings with the employer in terms of which the possibility of disciplinary charges being brought against the employee was discussed, the employee resigned. The employer notified the employee that whilst they accept her resignation, she was obliged to serve her 30 days notice period and that she remained on suspension until the outcome of the disciplinary hearing. The Labour Court held that the employee failed to disclose the degree to which the employer's conduct would impair or threaten to impair her rights. The employee only managed to show the court that a disciplinary hearing may impair her good name and reputation. Following Booysen v SAPS above, the court dismissed the urgent application and held as follows:
"The LRA does not confer jurisdiction on this court to intervene in disciplinary hearings, at least not in terms of any right conferred by the LRA, any right to fair administrative action or by virtue of the direct application of any constitutional right to fair labour practices."
However, 11 days earlier, the Labour Appeal Court was called upon decide whether the Labour Court in Booysen v SAPS above had been correct in deciding that the Labour Court does not have jurisdiction to intervene in disciplinary enquiries. The Labour Appeal Court held, in Booysen v Minister of Safety and Security and others, (unreported judgment in case no CA09/08, dated 1 October 2010), that the Labour Court does indeed have jurisdiction to grant appropriate relief in relation to pending disciplinary enquiries.
The Labour Appeal Court held that the effect of the decision of the court a quo is that the Labour Court lacks jurisdiction because of the detailed procedures and mechanisms available to employees to vindicate their fair pre-dismissal procedural right only after they have been dismissed. As such, the Labour Court cannot be of assistance to employees prior to their dismissal. By implication, this means that employees cannot approach the Labour Court for interdictory relief with genuine complaints of other unfair labour practices such as unfair demotions or suspension for which specific remedies through arbitration is provided for. The Labour Appeal Court held that the very power of the Labour Court to issue interdictory relief suggests that the legislature was aware that the exercise of such power might interfere with the freedom of employer's to contract and the employer's business in deserving cases. The Labour Appeal Court considered the reasoning in Chirwa v Transnet Ltd & others 2008 (2) BLLR 97 (CC) in which the Constitutional Court held that the existence of a "purpose-built" employment framework in the form of the Act and associated legislation infers that labour processes and forums should take precedence over "non-purpose-built" process and forums in situations involving employment-related matters.
The Labour Appeal Court concluded that "the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However such an intervention should be exercised in exceptional circumstances."
The Labour Appeal Court did not set out the test to follow, but held that the Labour Court should exercise their discretion when exercising this power. One such factor would be to consider whether failure to intervene would result in grave injustice or whether justice would be attained by other means.
Aadil Patel, Director and Mariska van Zweel, Candidate Attorney