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[2010] ZALCJHB 364
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Moya v Standard Bank of South Africa Ltd (J2010/10) [2010] ZALCJHB 364 (12 October 2010)
Reportable
Delivered
12 October 2010
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO J2010/10
In
the matter between:
VICTORIA
MOYA
Applicant
And
STANDARD
BANK OF SOUTH AFRICA
LIMITED
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an unopposed urgent application in which the applicant seeks
a rule
nisi
,
inter alia
staying a disciplinary enquiry scheduled to be held on 12 October
2010, pending the outcome of a constructive dismissal dispute
referred to the CCMA by the applicant on 1 October 2010. I accept for
present purposes that the application is urgent.
[2]
The relevant facts are briefly the following. The applicant is
employed by the respondent as a director of its cash operations.
In
August 2010, she was placed on ‘special leave’ by her
superior, Mark Barrett. On 14 September 2010, after a meeting
with
Barrett, the applicant was placed on formal suspension and during
which the prospect of disciplinary charges being brought
against her
was discussed. A further meeting was held on 29 September, when
the possibility of charges against the applicant
was again discussed.
At this point, the applicant took the view that she was the victim of
a witch hunt, and sent Barrett a letter
dated 30 September 2010 in
which she tendered her resignation with immediate effect. On the same
date, the respondent had addressed
a letter to the applicant stating
that she was to attend a disciplinary hearing at 8:30 on 12 October
2010. Various charges of
misconduct were outlined in the letter,
which the applicant states was served on her on 1 October. On 30
September, the respondent
addressed a further letter to the applicant
in response to her letter of resignation. The letter recorded events
that had transpired
since May 2010 when a grievance was initiated
against the applicant. The letter stated
inter
alia
that while the respondent accepted
the applicant’s resignation, she was obliged to serve a thirty
day notice period. On this
basis, the applicant’s last day of
employment was reckoned to be 30 October 2010. The applicant was
notified that she remained
on suspension until the outcome of the
disciplinary hearing, or 30 October 2010. On 8 October the
applicant’s attorneys
sought an undertaking that the respondent
would not proceed with the hearing. When no undertaking was given,
these proceedings
were instituted on a few hours notice.
[3]
At the outset of the hearing, I raised with Adv Zondo, who appeared
for the applicant, the question whether this court had jurisdiction
to grant the order sought. In
Booysen v
South African Police Services & another,
Cheadle AJ held that this court had no jurisdiction under s 157 of
the Labour Relations Act (LRA) to intervene in disciplinary
proceedings, primarily on the basis that only the CCMA or a
bargaining council has jurisdiction to determine the procedural
fairness
of a dismissal for a reason relating to an employee’s
conduct. The court also considered the question of intervention from
the perspective of the right to fair administrative action (not
relevant in these proceedings), the right to dignity, the right
to
fair labour practices and what was contended to be this court’s
inherent power to remedy injustice. Under each of these
heads, and
after an examination of the relevant constitutional and other
statutory provisions, the court held that it had no jurisdiction
to
intervene in domestic disciplinary hearings. At paragraph [42] of the
judgment, Cheadle AJ concluded:
Section 151 (2)
is perfectly clear - the Labour Court has the inherent powers of the
High Court but only ‘in relation to matters
under its
jurisdiction’. Its jurisdiction, as I have held, does not
include interfering with disciplinary hearings.
In the course of
his judgment, Cheadle AJ recalled the following passage from
Moropane
v Gilbeys Distillers and Vintners (Pty) Ltd & another
[1997]
10 BLLR 1320
(LC), where Landman AJ said the following:
This Court is a
creature of statute, albeit a superior court having the status and
standing of the High Court with the statutorily
conferred inherent
powers of a High Court within its jurisdiction. It does not have an
all-embracing jurisdiction over the employer/employee
relationship.
Its jurisdiction is a sporadic one, interspersed in the life cycle of
employment. Not only that but the moment of
intervention is regulated
by statute. Moreover its jurisdiction sometimes indirect. It may
supervise the activities of a
council or the CCMA dealing with
an aspect of the employment relationship but it does not necessarily
mean that it may supervise
the antecedent activities before a
complaint is made and disposed of by the CCMA or a council
(at
paragraph [25]).
[4]
In the present proceedings, the founding affidavit fails to disclose
with any degree of clarity which of the applicant’s
rights the
respondent’s conduct either impairs or threatens to impair.
When pressed to articulate the prima facie right on
which the
applicant specifically relied to claim interim relief in these
proceedings, Adv Zondo sought refuge in the submission
that a hearing
would necessarily tarnish the applicant’s good name and
reputation. Indeed, this is the only ground articulated
in the
founding affidavit as one that potentially falls into the category of
prima facie rights. But the impairment of good name
and reputation is
clearly an issue over which this court has no jurisdiction. Even if
one accepts, as Adv Zondo contended, that
the potential for prejudice
to the applicant’s reputation arises in the milieu of an
employment relationship, it does not
necessarily follow that the
court has the jurisdiction to interdict a disciplinary enquiry from
proceeding only because the outcome
of that proceeding may impair the
reputation of the affected employee.
[5]
While Adv Zondo sought to distinguish
Booysen
on the facts (in
Booysen
the applicant had claimed that he was incapacitated an unable to
participate in disciplinary proceedings) it seems to me that despite
the different factual matrix, the principle remains intact, i.e. that
the LRA does not confer jurisdiction on this court to intervene
in
disciplinary hearings, at least not in terms of any right conferred
by the LRA, any right to fair administrative action or by
virtue of
the direct application of any constitutional right to fair labour
practices.
[6]
Even if my reading of
Booysen
is too narrow (or if the
Booysen
decision itself too narrowly interprets
the LRA) there are other reasons why this application should fail,
not least of which is
that when the applicant states that the outcome
of the hearing will tarnish her reputation, she does no more than
speculate as
to the outcome of the enquiry. That outcome may well
serve to exonerate her from the charges levelled against her, and
present
no potential to prejudice her good name and reputation. To
the extent that the applicant’s case is based on the fact of
her
resignation, the applicant does not make out a case in the
founding affidavit to the effect that she terminated her contract of
employment in circumstances where the respondent had materially
breached the contract thus justifying her summary cancellation
of it.
The applicant appears to contend no more than that her pending
constructive dismissal dispute obliges the respondent to
terminate
any disciplinary processes that it might have initiated. Prima
facie at least and in the absence of any evidence
to the contrary, it
seems to me that the respondent is entitled to hold the applicant to
her notice period and to convene a disciplinary
hearing within that
period.
[7]
For these reasons, in my view, the applicant has failed to establish
a prima facie right (even one open to some doubt) that
would entitle
her to the interim relief she seeks. In these circumstances, it is
not necessary for me to consider the remaining
elements of the
applicable test.
I
accordingly make the following order:
1.
The application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing 11 October 2010
Date
of judgment 12 October 2010
Appearances
For
the applicant: Adv M Zondo, instructed by Legong Manika Inc.