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INTERDICTING AN ENQUIRY: LABOUR LAW in a Nutshell January 2022

INTERDICTING AN ENQUIRY: When will the labour court grant an urgent interdict to stop or interfere in an internal disciplinary enquiry?

Very seldom – and only in exceptional cases when a failure to intervene would lead to grave injustice or if justice is available by other means.

The Labour Court has severely reprimanded employees and their legal representatives for frequently rushing to court for urgent interdicts to stop or postpone internal disciplinary proceedings. It will not hesitate to make punitive costs orders against parties who do so when there are no exceptional circumstances.

The court had this to say when an employee tried to stop the SA Post Office[1] from proceeding with an enquiry against her –

“It has long been stated that the powers of this Court under the Labour Relations Act (LRA) do not include the micro-management of workplace discipline or every dispute arising out of the workplace. This is so in that the prerogative to maintain discipline remains that of the employer, and further since the framework of the LRA is such that it is dispute specific.”

The employee could simply have attended the disciplinary hearing and raised her complaints for the chairperson to consider and determine. It’s not the Labour Court’s function to intervene in disciplinary proceedings and to dictate to employers and chairpersons how to conduct their own internal disciplinary processes. An employee who complains about procedural or substantive unfairness in an enquiry can refer a dispute to the CCMA or bargaining council.

The employee in the Post Office case failed to show there were exceptional circumstances of the kind referred to by the LAC in a 2010 judgement. The court was not impressed by her reasons and said so –

“…the fact that the notice to attend a disciplinary had shortcomings such as its timing, how and where it was served, its contents or the fact that it was not signed by the employer can hardly serve as exceptional circumstances for the purposes of jurisdiction.”

The court dismissed the application, lambasted the employee’s legal representatives, and slapped her with a punitive costs order. Ouch!!

TIP: This a stern warning to employees and their legal representatives that they proceed at their peril to the labour court for an urgent interdict to stop an enquiry if they can’t show genuinely exceptional circumstances.

[1] Minya v South African Post Office Ltd and Others (P99/20) [2020] ZALCJHB 209; (2021) 42 ILJ 141 (LC) (22 September 2020)

[2] Booysen v Minister of Safety and Security and others (LAC 09/08, judgment date 1 October 2010)

Source: Worklaw Newsflash October 2021

 

PATRICK DEALE

labour lawyer & mediator

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