SUMMARY
| In this case Potgieter (the “Applicant”) approached the Labour Court (“Court”) on an urgent basis for an order interdicting the Respondents from proceeding with disciplinary action against him, alternatively an order that the disciplinary proceedings against him be dealt with in terms of section 188(A) of the Labour Relations Act (“LRA”) |
| The application related to disciplinary proceedings instituted by Modikwa Platinum Mine, (the “First Respondent”), against the Applicant in September 2019 on grounds of misconduct. |
The Applicant alleged that the charges were unjustified, the issues could have been resolved amicably, and that he would not receive a fair internal disciplinary hearing. It was further alleged that the proceedings should have been dealt with in accordance with the provisions of section 188(A) of the LRA, which the First Respondent did not consent to.
The First Respondent opposed the application and raised two preliminary points. Firstly, that there was a material misjoinder of the Second and Third Respondents as no employment relationship exists between them and the Applicant, and secondly, whether the Applicant was entitled to request that the disciplinary proceedings be dealt with in accordance with section 188(A) of the LRA.
HELD
| In relation to the first preliminary point, the Court found that the Applicant had failed to sufficiently indicate what material interest the Second and Third Respondents had in the proceedings, and accordingly found that there was a material misjoinder. In relation to the second preliminary point, Section 188(A) permits an employer, with the consent of the employee, to request that an arbitrator be appointed to conduct an inquiry into the allegations about the employee’s conduct. The provision is clear in that such request must be made by the employer, and merely making a request for such an inquiry does not entitle the Applicant to it. Accordingly, the Court found that the Applicant’s concern that he would not receive a fair internal disciplinary hearing, is not a basis for a section 188(A) inquiry. In consideration of whether the Applicant had satisfied the requirements of urgent relief as contemplated in Rule 8 of the Labour Court Rules, it was found that the Applicant had failed to allege why the matter should be treated as urgent, and why he cannot get substantial redress at a hearing in due course. Accordingly, the Court held that any urgency claimed was self-created. The Court further considered the case of Jiba v Minister: Department of Justice and Constitutional Development and Others, in which it was held that the Court must not intervene in uncompleted disciplinary proceedings, unless exceptional circumstances exist requiring its urgent intervention, in that a grave injustice would occur. The Court consequently found that there was no basis for it to intervene with the internal disciplinary proceedings against the Applicant, and accordingly dismissed the application with costs. VALUE In this case the Court considered the ambit of section 188(A) of the LRA, confirming that the provision only permits an employer to request with the consent of the employee, that an arbitrator be appointed to conduct an inquiry into the allegations about the employee’s conduct. The Court must not intervene in uncompleted disciplinary proceedings, unless exceptional circumstances exist requiring its urgent intervention, in that a grave injustice would occur. Written by Wesley Pons Checked by Dingumuzi Ndhlovu |
