23 November 2020 by and Employment Law Alert

The protection of your reputation is not for the Labour Court’s consideration- a closer look at section 157 of the LRA

There is no provision in the Labour Relations Act 66 of 1995 (LRA) that confers jurisdiction on the Labour Court to adjudicate a dispute between parties that concerns the redemption of an employee’s reputation. In Monyepao v Road traffic Management and 6 others, the Labour Court took a closer look at what type of disputes fell within the jurisdiction of the Labour Court for adjudication.

The applicant was previously charged with allegedly intimidating, threatening and victimising employees. On 6 August 2020 the applicant resigned and was no longer in the employ of the first respondent and ceased to be an employee of the first respondent on 31 August 2020. The Applicant commenced new employment with a different employer from 1 September 2020. However, during the month of September 2020, the first respondent instituted disciplinary proceedings against the Applicant which resulted in his summary dismissal on 30 September 2020. Shortly before the outcome of those disciplinary proceedings were announced, the applicant instituted urgent proceedings seeking a declaratory order that he was not an employee when findings were about to be furnished at the disciplinary hearing. He withdrew that application and approached the Court again for a declaratory order that the conduct of the first, second and third respondents to exercise disciplinary powers over him was unlawful and unconstitutional and reviewing and setting aside the outcome of the disciplinary hearing and further interdicting any distribution or publication of the fourth respondent’s findings as this would damage his reputation.

The Labour Court directed that argument be addressed on issues of jurisdiction and urgency. The issue of jurisdiction is one that should be dealt with first, since the issue or urgency does not arise unless the Court is satisfied that it has the jurisdiction to grant the relief sought. Van Niekerk, J emphasised that there is a general misconception that the Labour Court has jurisdiction over all employment related matters, which is incorrect. Section 157(1) of the LRA provides that subject to the Constitution and section 173 of the LRA, and except where the LRA provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by the Labour Court. Stated simply, this requires that when a party refers a dispute to the Labour Court for adjudication, that party must point to a provision of the LRA or other law that confers jurisdiction on the Labour Court to adjudicate the matter.

Furthermore, section 157(5) of the LRA provides that the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if the LRA or any other law requires the dispute to be resolved through arbitration. For purposes of the present case, a dismissal for misconduct should be one that is resolved through arbitration. In the present instance, it was not in dispute that the first respondent was no longer the applicant’s employer, the applicant was employed by another employer. The dispute between the parties did not arise out of the employment relationship or from labour relations. The applicant did not seek to challenge or reverse the decision made by an employer that he be summarily dismissed, except that when that decision was made, he was no longer in its employ. To the extent that the applicant sought a declaratory order as to his status on that date, this would not deliver tangible legal relief because the factual and legal conditions for a declaratory order were absent.

The applicant was concerned that the disciplinary finding and the prospect of those findings entering the public domain would prejudice his ‘hard earned reputation’. In essence the applicant’s cause of action is one in which he sought to protect his reputation. The applicant did not seek any declaratory order that rests on a right that arises from a provision of the LRA or any other law that requires that the dispute be adjudicated by the Labour Court.

In closing, any assertions of reputational or career damage can be addressed in a claim for damages in the normal course before a civil court having jurisdiction, but not the Labour Court. The application was dismissed with costs.

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