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[2018] ZALCD 8
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Moodley v Minister of Safety and Security and Another (D1455/18) [2018] ZALCD 8 (18 July 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Not
Reportable
Case no: D 1455-18
In
the matter between:
DEVARAJH
MOODLEY
(ID
number
[….])
Applicant
and
MINISTER
OF SAFETY AND SECURITY
First Respondent
OFFICE
OF THE CLUSTER COMMANDER
SOUTH
AFRICAN POLICE SERVICES
ETHEKWINI
INNER SOUTH
Second Respondent
Heard:
18 July 2018
Delivered:
18 July 2018
EX TEMPORE
JUDGMENT
WHITCHER
J
[1]
The applicant’s history from 2007 to date has been
characterized by extraordinary long absences from work and
applications
for workmen’s compensation, sick leave and
temporary incapacity leave, which on his version was caused by an
injury on duty
in 2007. During this period he has lodged claims to
re-open workmen compensation claims, lodged disputes with the
bargaining council
and internal grievances regarding the non-payment
of remuneration during these very long periods of absence.
[2]
On 18 May 2018 he received a letter wherein the respondent noted that
the applicant has been off sick for a long period of time
and
instructed the applicant to submit outstanding medical certificates
within a set time frame.
[3]
On 6 July 2018 the respondent instructed the applicant, in writing,
to attend a career session in terms of the respondent’s
Work-Integration Strategy and National Instruction 5/2015 on 18 July
2018.
[4]
In response, the applicant’s attorney sent a letter submitting
that the applicant “believes that the meeting is
a ploy to
extract information to [his] prejudice’ and that the meeting be
rescheduled until the applicant’s formal
grievance was
finalized.
[5]
The respondent replied on 13 July 2018 that the applicant’s
grievance regarding unpaid leave and the delay in re-opening
his old
injury – I presume they mean to say his old workmen’s
compensation claim] does not relate to the meeting scheduled
for 18
July 2018, as the sole purpose of that meeting is in line with
National Instructions and is an attempt to re-integrate the
member
into the workplace and possible alternative placement since he has
been off sick from September 2016.
[6]
In response the applicant launched this application on 17 July 2018,
served it on the respondent via the state attorney at 14h11
and
requesting the registrar to enroll the matter to be heard on 17 July
2018. The registrar enrolled the matter on 18 July 2018
to be heard
at 9am.
[7]
In the application the applicant seeks to interdict the respondent
from proceedings with the meeting scheduled for 18 July 2018,
pending
the finalization of his grievance hearing.
[8]
I dismissed the application for the reasons that follow.
[9]
The application fails to set out what right of his will be infringed
by the hearing on 18 July 2018 or that he will suffer irreparable
harm if he attends the meeting and that he has no alternative other
than to approach this court.
[10]
Other than the vague and unsubstantiated claim that the meeting is a
ploy to extract information to [his] prejudice’
and that he has
a grievance hearing, pending the applicant has failed to demonstrate
that the respondent is not entitled in law
to hold the meeting in
question.
[11]
To argue that the meeting should not be conducted while a grievance
hearing is pending has no merit. Each procedure serves
its separate
function and there is no reason why one function should be delayed
while the other is performed, albeit that they
might in some respects
cover the same ground.
[12]
Clearly, the purpose of the meeting is to address the applicant’s
alleged incapacity.
[13]
It is a trite principle of law that an employer is entitled to
enquire into the incapacity or otherwise of its employees and
in the
meeting both parties are entitled to extract information from the
other to assist in a proper determination of the matter.
Thus the
vague and unsubstantiated claim that the meeting is a ploy to extract
information to [his] prejudice’ does not assist
the applicant.
[14]
If an employee has concerns about the meeting, for example, that it
is premature because the findings of another hearing may
impact on
the finding of the incapacity hearing, or that he has not been given
proper notice of the meeting, or has not had sufficient
time to
prepare for the meeting and gather the document and information he
needs or that he first requires discovery of certain
information and
documents prior to the meeting further, all these concerns must be
addressed with the chairperson of the hearing
– not this court.
[15]
There is no evidence before me that the applicant will be denied a
fair hearing.
[16]
In the premises, the following order is made:
Order
1.
The
application is dismissed with no order as to costs.
________________________________
B Whitcher
Judge of the Labour Court
of South Africa
Appearances:
For
the Applicant:
Manoj Haripersad and
Associates
For
the Respondent:
State Attorney, KZN