IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1330/2023
In the matter between:
MARTIN O’ BRIEN VAN DER WESTHUIZEN Applicant
and
ORACLEMED HEALTH INVESTMENTS (PTY) LTD Respondent
Heard: 3 October 2023
Delivered: 26 January 2024 (This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing-
down is deemed to be 10h00 on 26 January 2024.)
JUDGMENT
PHEHANE, J
Introduction
[1] The applicant was dismissed from the employ of the respondent on 28
September 2023 following an internal disciplinary hearing.
[2] The applicant approaches this Court on an urgent basi s, seeking
extraordinary relief, in essence, an order setting aside his dismissal which has the
effect of reinstating him. Further (and once reinstated) an order effectively barring
the respondent from instituting internal disciplinary proceedings against the applicant
until such time as referrals to the Commission for Conciliation, Mediation and
Arbitration (CCMA) by the applicant in terms of the provisions of section 188A of the
2
Labour Relations Act 1 (LRA) have been determined, and that any charges the
respondent intends levelling against the applicant should be amassed with charges
under the section 188A proceedings.
[3] The application is opposed by the respondent on the basis essentially, that
the application is not urgent
2 and in consideration of the merits, that the relief the
applicant seeks is incompetent. 3 In addition, that the relief sought in the amended
notice of motion constitues a new cauase of action which is an irregular step.
Background
[4] Prior to the applicant’s dismissal, the respondent initially levelled charges
against the applicant. The disciplinary hearing was held on 11 September 2023 (first
disciplinary hearing).
[5] Proceedings in terms of section 188A of the LRA were initiated by the
applicant, as he alleged that he was suffering an occupational detriment as
contemplated in the Protected Disclosures Act
4 (PDA).
[6] Section 188A of the LRA reads:
‘188A. Inquiry by arbitrator. (1) An employer may, with the consent of
the employee or in accordance with a collective agreement, request a council, an
accredited agency or the Commission to appoint an arbitrator to conduct an inquiry
into allegations about the conduct or capacity of that employee.
(2) The request must be in the prescribed form.
(3) The council, accredited agency or the Commission must appoint an arbitrator
on receipt of—
(a) payment by the employer of the prescribed fee; and
(b) the employee’s written consent to the inquiry.
1 Act 66 of 1995, as amended.
2 Respondent’s heads of argument at paras 4 and 5 and paras 9 to 12.
3 Ibid, at paras 6 to 8.
4 Act 26 of 2000.
3
(4) (a) An employee may only consent to an inquiry in terms of this section
after the employee has been advised of the allegation referred to in subsection (1).
(b) Despite any other provision in this Act , an employee earning more than the
amount determined by the Minister in terms of section 6 (3) of the Basic Conditions
of Employment Act at the time, may agree in a contract of employment to the holding
of an inquiry in terms of this section.
(5) In any inquiry in terms of this section a party to the dispute may appear in
person or be represented only by—
(a) a co-employee;
(b) a director or employee, if the party is a juristic person;
(c) an office bearer or official of that party’s registered trade union or
registered employers’ organisation; or
(d) a legal practitioner, on agreement between the parties or if permitted by the
arbitrator in accordance with the rules regulating representation at an arbitration
before the Commission.
(6) Section 138, read with the changes required by the context, applies to any
inquiry in terms of this section.
(7) An arbitrator appointed in terms of this section has all the powers conferred
on a commissioner by section 142 (1) ( a) to (e), (2) and (7) to (9), read with the
changes required by the context, and any reference in that section to the director for
the purpose of this section, must be read as a reference to—
(a) the secretary of the council, if the inquiry is held under the auspices of
the council;
(b) the director of the accredited agency, if the inquiry is held under the auspices
of an accredited agency.
(8) The ruling of the arbitrator in an inquiry has the same status as an arbitration
award, and the provisions of sections 143 to 146 apply with the changes required by
the context to any such ruling.
(9) An arbitrator conducting an inquiry in terms of this section must, in the light of
the evidence presented and by reference to the criteria of fairness in the Act, rule as
to what action, if any, may be taken against the employee.
(10) (a) A private agency may only appoint an arbitrator to conduct an inquiry in
terms of this section if it is accredited for arbitration by the Commission.
4
(b) A council may only appoint an arbitrator to conduct an inquiry in terms of this
section in respect of which the employer or the employee is not a party to
the council, if the council has been accredited for arbitration by the Commission.
(11) Despite subsection (1), if an employee alleges in good faith that the holding of
an inquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000),
that employee or the employer may require that an inquiry be conducted in terms of
this section into allegations by the employer into the conduct or capacity of
the employee.
(12) The holding of an inquiry by an arbitrator in terms of this section and the
suspension of an employee on full pay pending the outcome of such an inquiry do
not constitute an occupational detriment as contemplated in the Protected
Disclosures Act, 2000 (Act No. 26 of 2000).’
[7] The hearing in terms of section 188A of the LRA was scheduled for 28
September 2023 at the CCMA. The applicant approached this Court on an urgent
basis under case number J1280/23 to interdict the first disciplinary hearing pending
the determination of the section 188A proceedings at the CCMA.
[8] On 20 September 2023, Rabkin- Naicker, J ordered that the first disciplinary
hearing be stayed pending the outcome of the proceedings at the CCMA.
[9] On 22 September 2023, the respondent launched an application for leave to
appeal the interim order per Rabkin-Naicker, J and on the same date (22 September
2023), the respondent served the applicant with a new charge sheet and called him
to attend a disciplinary hearing on 28 September 2023 (second disciplinary hearing),
being the same date as the CCMA hearing.
[10] The applicant contends that the charges pertaining to the second disciplinary
hearing emanate from the facts that relate to the first disciplinary hearing and
therefore, the proper cause was for the respondent to supplement its charges under
the section 188A LRA proceedings already before the CCMA. The charges in
respect of the second disciplinary hearing make reference to the proceedings under
case number J1280/23 in which this Court found that the applicant made out a prima
facie case of contravention of the PDA by the respondent.
5
[11] The applicant avers that the respondent refused to postpone the second
disciplinary hearing. The applicant attended the second disciplinary hearing, in which
hearing he was not allowed legal representation (although legal representation was
permitted at the first disciplinary hearing). The outcome of the second disciplinary
hearing was the applicant’s dismissal.
[12] According to the applicant, the second disciplinary hearing was a sham , as it
circumvented the Court order per Rabkin-Naicker, J and it was purposefully set down
for hearing on the same date as the CCMA hearing. The applicant states that the
second disciplinary hearing was hurried in order to dismiss him, thus obfuscating
against the protections afforded to the parties in the PDA.
[13] The CCMA hearing on 28 September 2023 was postponed.
[14] The applicant sought leave to file a supplementary affidavit which explains in
essence, that he approached this Court for urgent relief and that the matter was
initially set down to be heard by this Court on 28 September 2023, but was
rescheduled to 29 September 2023 and later, to 3 October 2023 by the Registrar of
this Court. The applicant s tates that he has been prejudiced by the rescheduling of
his urgent application in the afore- going manner. The applicant does not explain
what steps were taken by him, if any, to appraise the Registrar of the urgency of his
matter requiring it to be heard on 28 September 2023.
[15] The challenge the applicant now faces, is that firstly, he has been dismissed .
He alleges that his dismissal is the very occupational detriment he was trying to
avoid and he did everything and is powered to approach this Court for relief. He
alleges that his dispute before the CCMA is now academic.
[16] In view of the fact that the applicant has now been dismissed, in my view, the
remedy for the applicant is in terms of the provisions of section 191 of the LRA read
with section 187 of the LRA. The applicant is alive to this.
5
5 Supplementary affidavit, at para 48 on p 54.
6
[17] Mr. Cook for the applicant submits that “the automatically unfair dismissal
route is reactive relief” and that that applicant seeks the protection afforded to him in
section 188A (11) of the LRA. The applicant contends that exceptional
circumstances exist that warrant this Court’s intervention: those are, in essence: the
Registrar’s refusal to schedule the urgent interdict for hearing (on an unopposed
basis) on 28 September 2023 6 - the applicant contends that had he been heard on
that date, he would not have been dismissed, as he would have succeeded in
obtaining an order interdicting the second disciplinary hearing; the respondent’s
jurisdiction to hold the second hearing is ousted by the applicant lodging a second
referral in terms of section 188A of the LRA with the CCMA in relation to the second
charges.
[18] On a plain reading of section 188A (11) of the LRA, the section provides for
the conduct of a pre-dismissal hearing before the CCMA, council with jurisdiction or
an accredited agency. In the premises of the applicant’s dismissal, he has a remedy
of an automatically unfair dismissal. I do not agree that such remedy is reactive as
submitted by Mr. Cook. In light of the applicant’s dismissal, it would be absurd to
invoke the provisions of section 188A (11) of the LRA.
[19] The effect of the application for leave to appeal suspends the operation of the
order by Rabkin- Naicker, J. Whether there is merit in appealing an interim order is
not for determination in this present case.
[20] On the facts of the present case, the applicant has been dismissed and he
contends that the respondent has contravened the provisions of the PDA. An unfair
dismissal dispute has not been conciliated by the CCMA. This Court accordingly
lacks jurisdiction to adjudicate this dispute.
[21] If I am wrong that this Court lacks jurisdiction (which I do not believe so), then,
I find that the application is not urgent for the reasons that follow , and I would
accordingly strike the matter off the roll for lack of urgency.
6 The matter became opposed after the notice of motion was amended pursuant to the applicant’s
dismissal.
7
[22] The applicant was aware on 22 September 2023 of the second disciplinary
hearing. It sought confirmation from the respondent by 26 September 2023, whether
the respondent would agree to postpone the second disciplinary hearing pending a
determination by the CCMA whether it had jurisdiction to hear the applicant’s
referral, or whether the respondent would “allow” the applicant to launch an urgent
application to stay the second disciplinary hearing. The applicant states that it is his
attention to allow the parties sufficient time to file their respective papers.
7 An urgent
application was launched only 27 September 2023, giving the respondent severely
truncated time frame (hours) to oppose the application. The application was not
opposed at that point. The amended notice of motion also contains hours within
which to respond. The answering affidavit and replying affidavit s were delivered on
the date of hearing (3 October 2023).
[23] The applicant’s supplementary affidavit makes out no case whatsoever on
urgency – no reasons for urgency following the applicant’s dismissal are pleaded; no
reasons are set out why the rules of this Court relating to service have not been
complied with. The applicant does not state that if he is not heard on an urgent basis,
he will not receive substantial relief if his matter is heard in the normal course. In
short, there is non- compliance with the provisions of rule 8 of the Rules for the
Conduct of Proceedings in the Labour Court . Thus, no urgency is demonstrated by
the applicant.
8 In my view, given the fact that the applicant had been dismissed four
days prior to the delivery of the amended notice of motion and supplementary
affidavit, no urgency arises when consideration is had to the relief sought by the
applicant.
[24] In the premises, the order is as follows:
Order
1. The matter is struck off the roll for lack of jurisdiction.
7 p 33.
8 See: Mohlala-Mulaudzi v Property Practitioners Regulatory Authority [2023] JOL 57988 (LC) at para
[37], where this Court stated that adequate reasons must be provided by an applicant to satisfy the
Court that its application is urgent and that urgent relief is necessary “today, and not tomorrow…”
8
2. There is no order as to costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. AL Cook
Instructed by: Crawford & Associates
For the Respondent: Adv. A Snider SC
Instructed by: Pottas Attorneys