19 July 2012

Labour Court dismisses Breytenbach's appeal to overturn suspension

Yesterday, 18 July,  the Labour Court in Johannesburg dismissed an urgent application brought by Glynnis Breytenbach, a Senior Deputy Director of Public Prosecutions and the head of the Pretoria Regional Office of the Specialised Commercial Crime Unit of the National Prosecuting Authority (Applicant) to overturn her suspension at the hands of the National Director of Public Prosecutions (NDPP) on 30 April 2012.

Gavin Stansfield, Director in the Employment practice at Cliffe Dekker Hofmeyr explains, “On 31 October 2011, an attorney, Mr Ronald Mendelow, acting on behalf of his client Imperial Crown Trading 289 (ICT), laid a complaint against Ms Breytenbach with the NDPP. 

“The complaint related to a civil dispute to which ICT was a party. The civil dispute arose as a result of a criminal complaint lodged with the Serious Economic Offences Unit of the Hawks in Pretoria, against ICT. Ms Breytenbach took charge of the case on the basis that she regarded it as too complex to allocate to any of her junior staff.” 

Stansfield notes that on 25 November 2011, Ms Breytenbach was called to a meeting with the acting CEO of the National Prosecuting Authority and informed of the complaint lodged against her without informing her of either the nature of the complaint or the identity of the complainant. 

“The outcome of this meeting resulted in Ms Breytenbach having to withdraw from the ICT case. In December 2011 a preliminary investigation was launched against Ms Breytenbach.  Two months later she received a notice of intention to suspend her.  At the same time, Ms Breytenbach learnt that the NPA had publicly announced that she had been suspended from duty. In April of 2012 Ms Breytenbach was handed a letter of suspension by the acting NDPP,” he explains.

Anli Bezuidenhout, Candidate Attorney in the Employment practice, explains further that Ms Breytenbach approached the court on an urgent basis in terms of s158(1)(a)(ii) of the Labour Relations Act 1995 (LRA).  She sought an order declaring her suspension to be unlawful, that it be set aside and that the NDPP be directed to reinstate her, allowing her to resume her normal duties.  In dismissing the application, Cele J confirmed that the matter was indeed urgent. 

“The court furthermore relied upon the unreported judgment handed down in Member of Executive Council for Education, North West Provincial Government v Errol Randal Gradwell (Gradwell).  In the Gradwell matter, the court found that the right to a hearing prior to a precautionary suspension being implemented does not arise from the constitution or as an implied term of the contract of employment, but rather within the provisions of the LRA.  The right is therefore a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regards to those rights.”

Stansfield adds, “It therefore follows that the suspension of an employee, if challenged, gives rise to a labour dispute relating to unfair labour practice.  Unfair labour practices must be referred to the CCMA and not the Labour Court.  The court accordingly found that the Labour Court does not have jurisdiction to adjudicate on a suspension.

“The court found further that Ms Breytenbach failed to show the existence of any extraordinary or compelling urgent circumstances to justify a final declaration of the unlawfulness of her suspension.   Her application was accordingly dismissed with no orders as to costs.”

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