In the past few months we have quite regularly heard on the news of people, holding high-raking positions, who have been suspended by their employers for the one or other reason. We have also noted the trend amongst these high-ranking officials to run to court to obtain some sort of relief against the employer.
The question we have to ask ourselves is if the Labour Court has any jurisdiction to prevent a disciplinary enquiry.
In Jiba v Minister of Justice and Constitutional Development and Others [2009] 10 BLLR 989 (LC), Ms Jiba brought an urgent application for a declarator that the decision to commence and proceed with disciplinary proceedings against her was unlawful, that the decision to suspend her was unlawful, and an order to be reinstated with immediate effect.
Jiba, a senior deputy director of public prosecutions in the National Prosecuting Authority’s (NPA’s) Directorate of Special Operations, was requested to assist the South African Police Service (SAPS) in an investigation concerning senior members of the NPA in September 2007. Following this engagement, she was requested by the NPA to divulge the contents of her communications with the SAPS. She refused to do so. Jiba was handed a letter of suspension on 12 December 2007. In February 2008, she was notified to attend a disciplinary inquiry to answer allegations of misconduct related to dishonesty, unprofessional conduct and bringing the NPA into disrepute. The hearing was postponed to 18 April 2008. At the commencement of the hearing, Jiba raised the point in limine that the NPA was precluded from proceeding with the inquiry because it had failed to proceed with the inquiry within 60 days as required by the applicable procedures. Having considered the evidence, the chairperson of the inquiry held that Jiba’s suspension came into effect on 10 January 2008 and that the inquiry was timeously convened. The inquiry was postponed to August 2008. At the commencement of the inquiry, Jiba applied for the indefinite postponement of the inquiry pending a review of the chairperson’s finding in relation to the point in limine. On 8 January 2009, Jiba received notice that the inquiry would proceed in February 2009. Although the tapes of the first hearing were made available to Jiba in August 2008, she received the transcript only on 27 January 2009. She accordingly filed this application on 29 January 2009 and contended that she was entitled to bring it as a matter of urgency.
The Labour Court, per Van Niekerk J, considered whether the court had jurisdiction to entertain the application. The fourth to 17th respondents argued that the court had no jurisdiction to intervene in internal disciplinary inquiries. As regards the suspension, they contended that Jiba had not referred a dispute concerning her suspension to arbitration and the time limits to do so had lapsed.
Van Niekerk J considered the decision of the Labour Court in Booysen v SAPS and Another [2008] 10 BLLR 928 (LC) where it was held that the Labour Court has no jurisdiction to intervene in disciplinary inquiries. In that case it was held that s 191 of the Labour Relations Act 66 of 1995 (LRA) requires disputes about the fairness of a dismissal to be referred to the Commission for Conciliation Mediation and Arbitration (CCMA) or a bargaining council with jurisdiction, and that those bodies – and not the Labour Court – have the jurisdiction to arbitrate disputes about dismissals for misconduct.
Van Niekerk J held that he was not convinced that the proposition in Booysen could be so broadly and unequivocally stated. It is so that the letter and purpose of the LRA precludes the Labour Court from making orders that would finally determine misconduct-disputes. However, s 158(1)(a) gives the court the power to grant urgent interim relief in respect of disputes that must ultimately be determined by arbitration. Whether the court should intervene is a separate question – but provided that the relief sought does not amount to usurping the CCMA’s statutory functions, the Labour Court, in principle, has jurisdiction to make interim orders concerning disciplinary proceedings. Nevertheless, he stated that it is undesirable for the Labour Court to entertain applications to review and set aside rulings made in uncompleted proceedings. This is because such intervention would undermine the informal nature of the system of dispute resolution established by the LRA, would frustrate the expeditious resolution of disputes and would entirely undermine the statutory dispute resolution system. By asking the Labour Court to rule that the disciplinary action initiated against Jiba was ‘unauthorised and unprocedural’, she was effectively asking the court to bypass the relevant bargaining council.
Regarding the suspension, the court held that it had jurisdiction to consider the matter but held that on the facts Jiba had not made out a case. As regards the application to review the chairperson’s ruling that the disciplinary inquiry was held within 60 days of Jiba’s suspension, the court observed that it has been held (in Lekabe v Minister of Justice and Constitutional Development [2009] JOL 23134 (LC)) with reference to the same policy that an employer’s right to discipline an employee did not fall away if the employer had failed to convene the inquiry within the 60-day period.
In the circumstances the application was dismissed with costs.
