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[2018] ZALCJHB 365
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Wechoemang v Road Traffic Management Corporation and Others (J3742/18) [2018] ZALCJHB 365 (9 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case number: J3742/18
In
the matter between:
DIPSY
DIPHIMOTSWE
WECHOEMANG
Applicant
and
ROAD
TRAFFIC MANGEMENT CORPORATION
First
Respondent
ADV
MAKHOSI MSIBI
(CHIEF
EXECUTIVE
OFFICER)
Second
Respondent
NISHLAN
MOODLEY
N.O.
Third
Respondent
Heard:
08 November 2018
Delivered:
09 November 2018
JUDGMENT
BALOYI
AJ
INTRODUCTION
1.
This
application concerns relief sought by the applicant on urgent basis
to interdict the respondents from continuing with the disciplinary
hearing against herself. There were no issues regarding urgency, as
such I proceeded to hear the matter on urgent basis.
2.
The
applicant’s reason that the proceedings should be put on ice is
primarily rested on the unfair labour practice dispute
she referred
to the CCMA based on a claim of having made a protected disclosure to
be dealt with first. In other words, pending
the finalization of the
CCMA dispute, the first respondent should dare not exercise any
disciplinary powers over her. In the alternative,
the applicant is
seeking an order interdicting the third respondent from presiding
over the disciplinary proceedings. Further alternatively
that, the
respondents be interdicted from proceeding with the disciplinary
hearing pending finalization of the review application
still to be
filed in challenge of the third respondent’s recusal ruling.
The further alternative relief was not pursued during
arguments. The
first and second respondents opposed the application
BACKGROUND
3.
The
Applicant is the first Respondent’s Group Executive: Human
Capital reporting to the second Respondent who is the CEO.
The
circumstances leading to the institution of disciplinary proceedings
arose out of the letter generated by the Applicant on
18 March 2018
addressed to the CEO titled “Personal letter to the CEO”.
The letter which by Applicant’s admission
was written out of
high emotions ended up being leaked and fell into the hands of three
employees of the first respondent who subsequently
lodged grievances
against the applicant. The gist of the grievances was that the
applicant ridiculed and defamed them in the said
letter. The
grievance hearing was convened, the result thereof was a
recommendation that disciplinary steps be taken against the
applicant
hence the formulation of charges.
4.
The first
respondent relied on the contents of the personal letter which
consists of 18 pages when crafting the charges against
the applicant.
In this instant case the applicant also relies on the very personal
letter in support of her protected disclosure.
The applicant
subsequently addressed a letter to the CEO dated 04 June 2018
apologizing over what she said in the personal letter.
That the
language used in the personal letter might have been overstretched,
strong and inedible is her own description of its
contents.
5.
The charges
preferred against her were crafted as follows:
‘
Charge
1
“
Gross
Misconduct”
You
grossly misconducted yourself in that on or about 18 March 2018, in a
letter addressed to the CEO you challenged the authority
of the CEO,
Adv. MS Msibi, and further demonstrated therein an insolent,
provocative, racially provocative, aggressive, and intimidating
manner towards the CEO and his management team. Your conduct
disrupted a harmonious working relationship which directly impacts
on
the service delivery of the organization.
Charge
2
“
Bringing
the name of RTMC into serious disrepute”
Your
gross misconduct as stated above has resulted in bringing the
employer’s name into disrepute’
.
6.
The hearing
was scheduled to commence on 18 October 2018 and was rolled over to
19 October 2018. That was after the applicant’s
attorney had
addressed the third respondent specifically, requesting postponement
pending finalization of the unfair labour practice
dispute that she
referred on 17 October 2018 as well as the grievance she had lodged
under her attorneys letterhead on the same
date. The third respondent
was also confronted with an application for his recusal over his
business relationship with the first
respondent for having previously
acted on behalf of the first respondent as attorney of record in
other matters. When the proceedings
reconvened on 19 October 2018,
the third respondent handed down a ruling dismissing the application
for his recusal. The third
respondent’s relationship with the
initiator was just after the handing down of the recusal ruling
brought to spotlight by
the applicant through another recusal
application. The second recusal application was accompanied by
further submissions that the
applicant had also reported the third
respondent to the Law Society. The hearing did not proceed because
the third respondent postponed
the matter to 05 November 2018 to
enable the applicant to file this application as her intention were
declared to the effect.
7.
Now before
this court, it was argued for the applicant that though the letter
was not drafted with precision, it was ascertainable
that its
contents constituted a protected disclosure. The dispute before the
CCMA deserves to be ventilated first as its resolution
would
eradicate all prejudice the applicant is faced with. Furthermore, the
resources in terms of time and money would be saved.
The relationship
which the third respondent has with the first respondent is more than
sufficient to establish that the applicant
will not receive a fair
hearing. The court is thus in a position to intervene as the grave
injustice is set to prevail.
8.
As argued
on behalf of the first and second respondents, the court can only
intervene under exceptional circumstances. Challenging
the decision
of the disciplinary chairperson on piece meal basis has never secured
approval from the courts. Exceptional circumstances
can only be
established if the manner in which the employer conducts itself brews
grave injustice which does not avail any recourse
for the employee to
deal with such conduct. In this matter the applicant has recourse,
that is, to refer any unfavourable outcome
of the hearing to the
CCMA. The first and second respondents sought the order dismissing
the application with costs.
EVALUATION
9.
The
position adopted by the courts in dealing with applications to which
the cause of action arose out of incomplete disciplinary
hearings in
the form of interdicts, declarators and review of chairpersons’
rulings is now settled. The courts’ cautious
approach is
inescapably permeated by application of discretion on whether based
on presented set of facts, do the exceptional circumstances
exist. In
Jiba v
Minister of Constitutional Affairs and Development and Others
[1]
the court held as follows at paragraph 17:
“
In
summary: although the court has jurisdiction to entertain an
application to intervene in uncompleted disciplinary proceedings,
it
ought not to do so unless the circumstances are truly exceptional.
Urgent applications to review and set aside preliminary rulings
made
during the course of a disciplinary enquiry or to challenge the
validity of the institution of the proceedings ought to be
discouraged. These are matters generally best dealt with in
arbitration proceedings consequent on any allegation of unfair
dismissal,
and if necessary, by this court in review proceedings
under s 145”.
10.
The
Labour Appeal Court further restated the position in
Booysen
v
11.
Minister
of Safety and Security
[2]
and
held as follows at paragraph 54:
“
To
answer the question that was before the court
a
quo
, the Labour Court has
jurisdiction to interdict any unfair conduct including disciplinary
action. However such an intervention
should be exercised
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.
[25]
The list is not exhaustive
.”
12.
I omitted
to deal succinctly with the contents of the applicant’s
personal letter to the CEO. This is for a simple reason
that is,
avoiding to pass an opinion on whether there is merit in a case
against the applicant or otherwise. It is within the ambit
of the
disciplinary chairperson to determine the applicant’s guilt or
otherwise. Similarly, it is the commissioner’s
duty to rule on
whether there is a sustainable case for a protected disclosure
dispute or not. In determining this application,
it is highly
imperative to look at the conduct of the applicant, most particularly
her attitude towards the disciplinary proceedings.
Based on her
case alone, she seem to acknowledge that the first respondent
as her employer is entitled to discipline
her once there are
allegations of misconduct against her.
13.
Her apology
alone, that was made before the institution of grievance proceedings
establishes an acknowledgement of wrong doing.
As the disciplinary
proceedings were instituted, to be precise, a day before the sitting
of her hearing the very letter that ridiculed
her colleagues became a
protected disclosure worth referring to the CCMA thereby creating a
ground for a postponement application.
A grievance lodged on the same
day as the CCMA referral became part of the package. At the end of
the first day of the hearing
as it may be imagined, the applicant
through her attorney prepared a complaint to the Law Society against
the chairperson in anticipation
of the unfavourable ruling on recusal
application that was due to be handed down the next day. The reading
of the applicant’s
case conspicuously reveals that, this move
was intended to secure a second bite in attempting to postpone the
matter and to create
a ground to argue another recusal application.
In the mix of things, the filing of this application became a new
issue calling
for a postponement which the third respondent granted.
14.
Cumulatively,
the conduct of the applicant does not at all show any sign of
approach to the disciplinary hearing with clean hands.
Her grievance
against the CEO and the employees who previously lodged grievances
against her, grossly negates her letter of apology.
The only
objective conclusion to be reached under these circumstances is that,
she bears no willingness to appear in the hearing
in order to respond
to the charges against her. All these objections that were followed
by this application have no better description
than not so wisely
calculated moves to delay the disciplinary hearing indefinitely. This
is more visible from her other prayers
calling for the disciplinary
hearing to wait for finalization of the review application
still to be filed, her only intention
is clearly not to subject
herself to the first respondent’s disciplinary processes.
The court cannot under the
circumstances come to the assistance
of employees who conduct themselves in the same manner as the
applicant. Consequently, I do
not find anything exceptional calling
for the court to intervene in the incomplete disciplinary proceedings
between the first respondent
and the applicant. This applicant is
overwhelmingly destined to fail. This is one of those cases
warranting the awarding of costs
against the applicant. In
application of the broad discretion that the Court has in this
respect, I am however loathe to make cost
order in the light the
employment relationship between the parties that is still in
subsistence.
ORDER
15.
In the
premises, the following order is therefore made:
1.
The forms
and service provided for in the Rules for the conduct of proceedings
in this court are dispensed with.
2.
The
application is dismissed.
3.
There is no
order as to costs.
Baloyi
AJ
Acting
Judge of Labour Courts of South Africa
APPEARANCES
For
the Applicant:
Adv. Y. Saloojee instructed by Scholtz attorneys
For
the Respondent:
Adv. T. Bruinders SC. Instructed by Diale Mogashoa Inc
[1]
(2010) 31 ILJ 112 (LC)
[2]
(2011) 32 ILJ 112 (LAC)
[25]
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another 1959(3)
SA 133 (AD).