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[2013] ZALCJHB 53
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Diss v Shelter Employment Factories and Others (J552/13) [2013] ZALCJHB 53 (19 April 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
not reportable
Case No. J552/13
In the matter between:
PATRICIA DISS
........................................................................................................
Applicant
and
SHELTERED EMPLOYMENT FACTORIES
...............................................
First
Respondent
(under auspices of the Department of Labour)
and
SYLVIA VAN DER MERWE
...................................................................
Second
Respondent
(Human Resource Manager)
and
DENNIS MASEPE
......................................................................................
Third
Respondent
Heard: 18 March 2013
Delivered: 19 April 2013
Summary: Urgent application to interdict disciplinary
hearing dismissed.
JUDGMENT
VISAGIE, AJ
Introduction
[1] This is an application by the applicant requesting
various interdictory relief relating to a disciplinary hearing
instituted
by her employer, the first respondent. The application was
brought on an urgent basis although at the hearing of the matter it
became clear that the urgency dissipated when the disciplinary
hearing was postponed sine die.
Background Facts
[2] The applicant is employed as a senior admin clerk by
the first respondent. On 15 March 2013, the applicant received a
notification
from the first respondent of a disciplinary hearing
which was to take place on 19 March 2013. The events leading up to
the disciplinary
charge sheet being provided to the applicant are as
follows.
[3] On 1 March 2013, the applicant was requested by the
Factory Manager ("the factory Manager") of the respondent
to assist
with some debtor query from one of the clients of the
respondent. The query from the client related to a payment allegedly
made
by the client, but not picked up by the debtor's department
which resulted in the goods/products being put on hold until payment
was confirmed. In dealing with the instructions from the factory
Manager, the applicant requested the necessary documentation from
the
debtor department. When the factory Manager phoned the applicant on 4
March 2013 and informed the applicant that the client
and the CEO of
the first respondent will have a meeting at 10h00 that day, he
requested that the documentation be provided by 10h00
in order to
facilitate the meeting with the client. The applicant indicated to
the factory Manager that after requesting the documentation
from the
debtors department, she was still awaiting the documentation.
[4] During the morning of 4 March 2013, the applicant
received a visit from the third respondent, a senior manager of the
first
respondent. The third respondent informed the applicant that
she had 5 minutes to get the required information for the factory
Manager and the CEO for the meeting with the client. The applicant
informed the third respondent that she had not received the
information and that it
"
didn't matter who climbed on the
bandwagon.
"
An argument then ensued between the applicant
and the third respondent during which the third respondent claimed
that the applicant
shouted at him and disrespected him. The
applicant's manager, Mr Fourie, intervened and explained to the third
respondent that
the applicant's personality is such that she normally
speaks loud. Mr Fourie also indicated to the third respondent that he
personally
contacted the debtors department for the information. Not
accepting the explanation from Mr Fourie, the third respondent
continued
with his argument with the applicant up until the point
where the applicant uttered the following words,
"
Fok
julle almal
".
At this point, the third respondent left
the office.
[5] The applicant and her manager were informed on 10
March 2013 by the second respondent, who is the HR manager of the
first respondent,
that the third respondent had lodged an official
complaint against the applicant. The second respondent then had a
meeting with
the applicant and provided the applicant with a copy of
a written letter of complaint that she had received from the third
respondent.
The second respondent suggested to the applicant that the
applicant should prepare a letter of apology for the third
respondent.
The second respondent also undertook to draft the letter
of apology for the applicant, which the applicant needed to sign and
provide
to the third respondent. The second respondent also undertook
to speak to the third respondent to enquire from him whether he would
be happy with a written apology. The third respondent refused to
accept any apology even before the letter of apology could be
signed
and provided to the third respondent. On 12 March 2013, the second
respondent informed the applicant of the third respondent's
refusal
and his insistence that the applicant be disciplined for her conduct.
The applicant was then provided with the disciplinary
notice.
[6] On 15 March 2013, the applicant's attorneys wrote a
letter to the first respondent relating to her disciplinary hearing.
In
the letter they deal, amongst others, with the second respondent's
refusal to allow the applicant's manager, Mr Fourie to represent
her
at the disciplinary enquiry. They also pointed out that Mr Fourie is
a key witness and the disciplinary enquiry should not
proceed because
Mr Fourie was not available. They requested that the hearing be
postponed to allow the applicant representation
by her manager, Mr
Fourie. They further indicated that should the first respondent not
agree to postpone the hearing for the reasons
motivated in the
letter, they will seek urgent relief from this court.
[7] The applicant states that the second respondent
initially indicated that Mr Fourie could not represent her because he
was apparently
not an employee of the first respondent. The second
respondent also indicated that as the third respondent is going to
call Mr
Fourie as a witness, he could not be a representative as
well.
[8] The applicant also had a problem with the
chairperson appointed for the disciplinary hearing. The chairperson
is a Mr Smith
and the applicant states in her founding affidavit that
she had an argument with Mr Smith in the past. As a result thereof
she
could not count on whether Mr Smith will deliver a fair and just
outcome in respect of the disciplinary enquiry. On this basis she
says Mr Smith will not be an impartial chairman. She also indicated
that Mr Smith holds a lower position than the third respondent
and
that he might be intimidated by the third respondent at the
disciplinary hearing.
[9] For the above reasons, the applicant stated that she
needed more time to prepare for the disciplinary hearing with her
representatives
and that the representatives intend making an
application at the disciplinary hearing for her to be legally
represented at the
disciplinary hearing.
[10] On 15 March 2013, the second respondent wrote to
the appointed chairperson of the disciplinary hearing asking him to
consider
postponing the disciplinary hearing to a date that suits all
parties in light of the fact that Mr Fourie would not be available
on
19 March 2013. In response, the chairperson indicated that the second
respondent should inform all parties of the request for
postponement
and that the parties should provide him with at least three
alternative dates that would be suitable for the reconvening
of the
disciplinary hearing.
[11] On 17 March 2013, the applicant was informed via
email by the second respondent of the postponement granted by the
chairperson
of the disciplinary hearing. The second respondent also
informed the applicant that she will provide a notice to all parties
on
18 March 2013 for new dates that will suit everyone.
[12] The applicant then filed this urgent application on
the morning of 18 March 2013 and set it down for hearing at 14h00
that
same day. The matter was eventually heard by this court at 15h00
on 18 March 2013.
Relief sought
[13] The applicant seeks various relief that includes
declaratory relief as well as interdictory relief. The declaratory
relief
was not pursued during argument (for good reasons, in my view)
and it was only the interdictory relief that the applicant persisted
with. In this regard, the applicant seeks this court to interdict the
disciplinary hearing of 19 March 2013; that the first respondent
be
ordered to allocate a non-biased chairperson; and that the hearing be
postponed sine die. The applicant also asked for costs
irrespective
of whether the application is opposed or not.
Legal Principles
[14] The requirements for an interdict are that the
applicant must show that the applicant has a clear right, a
reasonable apprehension
of harm and that no alternative remedy
exists. [See the case of
Langebaan Ratepayers
and Residents Association v Dormell Properties 391 (Pty) Ltd and
Others].
1
[15] Although not clearly spelt out in the applicant's
founding affidavit, which I might add consists of 44 pages (excluding
annexures),
the applicant's case appears to be that her right to a
fair hearing will be infringed if this court does not provide her
with the
relief that she is seeking in relation to the disciplinary
hearing. Although this court has the jurisdiction to intervene in
disciplinary
hearings, the circumstances under which it will do so
must be exceptional. This is what Labour Appeal Court stated in the
case
of
Booysen v Minister of Safety and
Security and Others,
2
‘
To answer the question that is before the
court, the Labour Court has jurisdiction to interdict any unfair
conduct including disciplinary
action. However, such an intervention
should be an exercise in exceptional cases. It is not appropriate to
set out the test. It
should be left to the discretion of the Labour
Court to exercise such powers having regard to the facts of each
case. Among the
factors to be considered would, in my view, be
whether failure to intervene would lead to grave injustice or whether
justice might
be attained by other means.’
[16] In a recent judgment of this court Steenkamp, J,
3
in answer to an employee claiming that there is no merit
to sexual harassment charges that were brought against him, had the
following
to say,
‘…
The complaints to which the
applicant has to answer comprise clear instances of sexual
harassment. They are not factually and legally
complex and he has
been aware of them since April 2010. There is little reason why he
should not, if they are without merit, be
able to defend himself
adequately without legal representation like other employees do every
day.
Even if the complaints were proven; and even if they were to be
considered serious enough to dismiss him, the applicant has an
adequate alternative remedy. Like any other employee, and as
envisaged by the dispute resolution system established by the LRA,
he
can then refer an unfair dismissal dispute to the relevant Bargaining
Council. He would suffer no irreparable harm.’
Exceptional circumstances
[17] As indicated above, by the time that the applicant
moved for this application in this court, the chairperson, together
with
the second respondent, already agreed for the postponement of
the disciplinary hearing sine die in light of the applicant's request
for such postponement. The main reason for the postponement as
appears from the papers was that the second respondent was aware
of
Mr Fourie's unavailability for the original date of the disciplinary
hearing and therefore requested a chairperson to postpone
the
disciplinary hearing. The fact that there may have been previous
correspondence between the second respondent and the applicant
relating to the role to be played by Mr Fourie at the disciplinary
hearing is irrelevant because it was superseded by the email
from the
second respondent informing the applicant of the postponement granted
by the chairperson, which email was sent to her
on 17 March 2013.
There was therefore no need for the applicant to approach this court
on an urgent basis and on such short notice
for a request to postpone
the disciplinary hearing sine die. In fact, at the hearing of the
matter, it was put to the applicant's
counsel, Ms Olivier, that the
request for postponement could in any event have been made at the
commencement of the disciplinary
proceedings.
[18] Ms Olivier did inform this court of the
postponement that was granted and focused her arguments on two other
points. The one
was that applicant requested that the court grants an
interdict requiring the first respondent to replace the chairperson
that
was appointed with an independent chairperson. As indicated in
the background facts above, the only basis upon which the applicant
claims that her right to a fair hearing will be affected if the
chairperson that was appointed is not replaced, is due to a previous
argument that she had with the chairperson. The applicant does not
state what the argument was all about. The applicant does not
state
when the argument occurred. The applicant does not state what the
chairperson's response and attitude was towards her in
respect of the
alleged argument. She also made further allegations in her founding
affidavit relating to disciplinary charges that
the chairperson faced
in the past, but provided no detail other than the chairperson
previously faced fraud charges at a disciplinary
hearing. The other
point that she takes for purposes of motivating why the chairperson
is to be replaced is because the chairperson
is more junior to the
third respondent who was the complainant.
[19] When it was put to Advocate Olivier that the
applicant has provided no detail in her founding affidavit to suggest
any basis
for her concluding that the chairperson may be biased in
the disciplinary hearing, she conceded that the allegations relating
to
the chairperson are just bland allegations unsupported by any
factual basis upon which this court may have enquired as to whether
or not the chairperson would show any inclination of biasness.
[20] In my view, the applicant has shown no exceptional
circumstances envisaged by
Booysen.
If one has regard to the
guidelines for the sanctions which were attached to the disciplinary
charge sheet, it is clear from the
charge sheet that the
transgressions that the applicant is required to face at the
disciplinary hearing do not provide for the
dismissal of the
applicant as a first offence. It does not therefore appear to be
serious charges that may lead to a dismissal.
In addition, all the
issues that the applicant complained about are issues which, in my
view, could easily have been dealt with
by the chairperson at the
disciplinary hearing. In fact, this is what happened concerning the
postponement of the hearing. In order
to ensure the availability of
Mr Fourie at the disciplinary hearing, although not based exclusively
at the applicant's request,
but also at the request of the second
respondent, the postponement was granted.
Conclusion
[21] In conclusion, therefore, it is my view that the
applicant has not met the requirements for the relief sought in the
notice
of motion. The applicant has shown no exceptional
circumstances for this court to interfere in the disciplinary
process. As a result
the applicant has failed to show that she has a
clear right for this court to interdict the disciplinary proceedings.
The application
is therefore dismissed. To the extent that the
applicant has requested this court to award costs against the
respondents, even
in circumstances where the respondents did not
oppose the application, the fact that the applicant has failed in her
application
for interdictory relief the applicant must also therefore
fail in her request for costs.
Order
[22] In the result, the following order is made.
22.1 The application is dismissed.
22.2 There is no order as to costs.
________________________________
Visagie,.AJ
Acting Judge of the Labour Court
Appearances
For the Applicant: Van Jaarsveldt Attorneys
For the Respondent:
1
2013
1 SA 37
(WCC) at para 37.
2
2011
(1) BLLR 83
(LAC), at para 54.
3
GW
Hermanus vs Overberg District Municipality
,
Case no: 144/12, dated 1 March 2012 at paras 28-29