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[2017] ZALCJHB 188
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Sekano v Tiger Brands Ltd (J467/17) [2017] ZALCJHB 188 (6 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case no J 467/17
In
the matter between:
MPHO
SEKANO
Applicant
And
TIGER BRANDS LTD
Respondent
Heard:
3 March 2017
Delivered:
6 March 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application, brought on an urgent basis, in which the
applicant initially sought a final order reviewing and setting
aside
a decision by the respondent to convene a disciplinary enquiry into
alleged misconduct by the applicant, and ordering the
respondent to
take all necessary steps in terms of its grievance procedure in terms
of the
Promotion of Administrative Justice Act, 3 of 2000
. The
relief sought is of course wholly misguided, since the respondent is
an organ of state nor does it exercise public power
when seeking to
discipline one of its employees. In any event, at least since
Gcaba
v Minister of Safety and Security and others
(2010) 31
ILJ
296
(CC), the law has been settled in favour of a single system of law,
i.e. that created by the LRA. Counsel for the applicant
ultimately sought an interim order interdicting the disciplinary
hearing pending the outcome of a grievance hearing initiated by
the
applicant.
[2]
The material facts are not in dispute. The applicant was employed by
the respondent in November 2016. There were concerns about
the
applicant’s performance. The applicant initiated a grievance in
terms of the respondent’s procedure. A meeting
was held on 2
February 2017and an outcome issued on 8 February 2017. The report
filed by the chair of the meeting could find no
evidence of
victimisation or unfair threatening behaviour or unfair treatment of
the applicant, but recommended the appointment
of an independent
party to ‘facilitate a better understanding and relationship
building’ between the applicant and
her line manager, the
subject of the grievance. The applicant sought to ‘appeal’
against the outcome.
[3]
On 27 February 2017, the applicant received a notice to attend a
disciplinary hearing into charges that she had during her interviews
in September 2016 represented that she had certain skills whereas she
did not possess those skills. The enquiry was scheduled for
2 March
2017.
[4]
The applicant contends that in terms of the grievance policy and
procedure, no employee may be prejudiced in any way consequent
on
raising or dealing with a grievance. In essence, the applicant
contends that the convening of the disciplinary hearing is a
breach
of grievance policy. She contends that the matter is urgent and that
if the disciplinary hearing were to proceed, she may
well be
dismissed.
[5]
The respondent admits that on 27 February 2017 it issued the notice
to attend the disciplinary hearing scheduled for 2 March
2017.
Without prior warning or notification, the present papers were served
on the respondent at 14h26, requiring the respondent
to file an
answering affidavit by 14h30 and to be in court by 15h00 to oppose
the application. It was largely for this reason that
the proceedings
were stood down to 3 March 2017, a matter to which I shall return in
due course.
[6]
The deponent to the answering affidavit avers that the grievance
filed by the applicant was fully dealt with over a period of
two
days. Detailed findings and recommendations were made, but the
applicant remains aggrieved since she claims that the process
did not
deliver positive results for her. AS far as the respondent is
concerned, the grievance process has run its course. The
disciplinary
hearing is an entirely separate matter and relates to what the
respondent alleges are misrepresentations made by the
applicant at
her pre-employment interviews. The respondent contends that it is
entitled to proceed with the hearing without interference.
[7]
The requirements for the granting of interim relief are
well-established. The applicant is obliged to establish a
prima
facie
right, a reasonable apprehension of irreparable harm if the
interdict is not granted, the absence of a satisfactory, alternative
remedy and that the balance of convenience is in favour of granting
the interim relief sought.
[8]
Where the nature of the interim relief sought requires the court to
intervene in internal disciplinary proceedings, a high bar
has been
set.
Initially this court took the view that it
had no jurisdiction to intervene in domestic disciplinary
proceedings. The Labour
Appeal Court set aside that decision in
Booysen v Minister of Safety, Security
and Other
, 2011 (32) ILJ 112 (LAC)
where the court held that this court had jurisdiction to intervene,
but that it should only do so in exceptional
circumstances, where a
grave injustice may result and where the employee has no other
adequate remedies. The Labour Appeal Court
purposely refused to be
more prescriptive than that and clearly left matters such as the
present to be dealt with by the exercise
of a discretion, based on
all of the relevant facts and circumstances presented in each case.
This court has on more than one occasion
warned would-be applicants
in matters such as the present against the abuse of this court’s
processes to delay or obstruct
uncompleted internal disciplinary
hearings. The threshold for intervention is set high – an
applicant must show that truly
exceptional circumstances warranting
intervention exist, that a grave injustice might otherwise result and
that there are no other
adequate remedies available.
[9]
In my view, the applicant has failed to meet the threshold for
intervention. The applicant has been called to an enquiry to
account
for alleged misconduct. She has the right to defend herself against
the allegations that she misrepresented her skills
and experience and
to state her case. There is no basis on which she might reasonably at
this point anticipate that she will be
dismissed unless, of course,
she is found guilty of the offence and dismissal is considered an
appropriate penalty. Her concern
that she will be prejudiced by a
disciplinary hearing is purely speculative. In so far as the
grievance procedure is concerned,
I am satisfied that the
respondent’s decision to convene a disciplinary hearing is a
discrete process. The applicant has
not established any nexus between
the pending hearing and her lodging a grievance. She has not made out
a case of victimisation,
which in essence is the nature of the
protection afforded by paragraph of the policy, on which she relies.
If the applicant is
dismissed or some lesser penalty is imposed,
should the applicant regard the respondent’s conduct as unfair,
she has the
right to refer the matter to the CCMA, and enjoys all of
the rights under the LRA to protect her right to security of
employment.
[10]
In the absence of a
prima facie
right, the reasonable
apprehension of irreparable harm and the balance of convenience in
favour of the applicant, the application
stands to be dismissed.
[11]
The respondent sought costs on a punitive scale. I do not think that
costs on that scale are warranted, but neither parties’
representative disputed that costs on the ordinary scale should
follow the result. The filing of the present application by the
applicant’s attorney on 30 minutes notice to the respondent is
nothing less than a manifest abuse of the process of this
court. At
15h00 on 1 March 2017, I stood the matter down to 16h00 to enable the
applicant’s attorney to make enquiries from
the person on whom
service was effected as to whether the respondent intended to oppose
the application. The applicant’s
attorney filed an affidavit
recording her conversation with a Mr Mzothando Mtsikitsiki, a legal
adviser employed by the respondent.
His attitude was that it was
’practically impossible’ for the respondent to come to
court at 16h00 (he did not seek
any extension of the period afforded
to the respondent to indicate its attitude), and that the respondent
did not know whether
it intended to oppose the application since he
had not yet read the papers. This is an astonishing attitude for a
legal adviser
to adopt – to indicate that the respondent
intended to litigate at its leisure in the face of a directive by a
court that
an urgent application stand down precisely to allow the
respondent an opportunity to read the papers (the founding affidavit
is
some 6 pages) and indicate whether it intended to oppose the
proceedings. The respondent’s failure to respond to the
invitation
extended to it and its attitude toward the application
smacks of disrespect for this court and its proceedings. But for Mr
Mtsikitsiki’s
conduct, I would have had no hesitation awarding
the respondent its costs. In the circumstances, the interest of the
law and fairness
are best served by limiting the respondent’s
costs to the costs of appearance on 3 March 2017, excluding the costs
of preparation.
For
the above reasons, I make the following order:
1.
The
application is dismissed.
2.
The
applicant is to pay the respondent’s costs of appearance on 3
March 2017.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. RA Arcangeli instructed by Ranthako Attorneys
For
the Respondent: Mr. Chavoos, Norton Rose Fulbright