THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025 – 189683
In the matter between:
PUSO FISHER Applicant
and
AKONA NOBULALI NGCUKA (MATSAU) N.O. First Respondent
BIDVEST SERVICES (PTY) LTD Second Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 21 October 2025
Delivered: 28 October 2025
This judgment was handed down electronically by circulation to the parties
and legal representatives by email. The time for hand-down is deemed to be 28
October 2025
Summary: Jurisdiction – Labour Court does have jurisdiction to consider an
urgent application to inter dict disciplinary hearing – applicant must however
assert Labour Relations Act (LRA) right – exceptional and compelling reasons
2
must also be shown – applicant asserting right under LRA and exceptional
circumstances shown – Labour Court entitled to intervene
Section 188A(11) of LRA – provisions of section considered – applicant
alleging protected disclosure and invoking section – purpose of section is for
CCMA to conduct independent disciplinary enquiry which mitigates discipline
based on protected disclosure – independent arbitrator determines if
misconduct is proven and not whether discipline is for protected disclosure –
misconduct is issue best dealt with in evidence – not appropriate for Labour
Court to determine issue of protected disclosure at this point
Section 188A(11) of LRA – applicant only required to make out a case that
disclosure was made and such disclosure would qualify as protected
disclosure under Protected Disclosures Act (PDA) – not required for Court to
decide whether applicant would be entitled to protection or whether disclosure
bona fide or justified – purpose of s 188A(11) is not that decision be made on a
protected disclosure – arbitrator decides whether to accept pre- dismissal
arbitration in terms of s 188A(11) – not appropriate for Labour Court to decide
such issue
Section 188A(11) – purpose of section to move disciplinary proceedings to
CCMA by way of pre -dismissal arbitration under s 188A – impartial arbitration
on misconduct charges removes risk of influence in decision of misconduct as
a result of protected disclosure – misconduct will thus finally be impartially
decided based only on what employer can prove in respect of misconduct –
statutory prescribed alternative to internal disciplinary hearing in cases of
alleged protected disclosure
Clear right – evidence establishing applicant made protected disclosure –
applicant specifically invoking s 188A(11) – internal disciplinary hearing no
longer competent / appropriate – misconduct hearing moved to CCMA – clear
right shown by applicant – interdicting of internal disciplinary hearing justified.
right shown by applicant – interdicting of internal disciplinary hearing justified.
Prejudice – undue prejudice to applicant to participate in internal disciplinary
hearing where ri sk of protected disclosure may impact decision – in
proceedings at CCMA under s 188A(11) commissioner independently
3
determining allegations of misconduct against applicant – proceeding with
internal hearing unduly depriving employee of such protection – little
prejudice to employer in such process
Interdict – requirements for interdict satisfied – internal disciplinary hearing
interdicted.
JUDGMENT
SNYMAN, AJ
Introduction
[1] The applicant has brought an urgent application to interdict the second
respondent (Bidvest Services) from continuing with an internal disciplinary
hearing against her, brought on two charges of alleged misconduct. The
applicant has alleged that these disciplinary proceedings constitute an
occupational detriment against her, based on a protected disclosure she had
made. In this context, the applicant has invoked section 188A(11) of the
Labour Relations Act (LRA)
1 which reads:
‘Despite subsection (1), if an employee alleges in good faith that the holding
of an inquiry contravenes the Protected Disclosures Act, 2000 ( Act 26 of
2000), that employee or the employer may require that an inquiry be
conducted in terms of this section into allegations by the employer into the
conduct or capacity of the employee.’
[2] According to the applicant, the fact that she has referred a dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of
section 188A(11), means that the internal disciplinary hearing against her in
Bidvest Services, which is set to proceed, should be interdicted. Contrary to
the situation often found where employees seek to interdict internal
disciplinary proceedings just as some unfounded delaying tactic or undue
method to obstruct being disciplined, this is actually a case where the
1 Act 66 of 1995 (as amended).
4
applicant has given effect to the general principle that the proper dispute
resolution processes as prescribed by the LRA must be followed. 2 What she
is saying is that continuing with the internal disciplinary hearing in
circumstances where she invoked such a procedure would be inappropriate,
and certainly not competent.
[3] This application first came before Daniels J on 16 October 2025. On that date,
the learned Judge granted an order disposing of the issue of urgency, finding
that the matter be decided as one of urgency. An interim interdict was also
granted in terms of which Bidvest Services was interdicted from continuing
with the internal disciplinary enquiry against the applicant, until this application
had been finally decided. And lastly, the learned Judge implemented timelines
within which Bidvest Services had to file an answering affidavit and the
applicant a replying affidavit, being 17 and 20 October 2025 respectively. The
application was postponed by the learned Judge to 21 October 2025 for
hearing, which is how it came before me.
[4] When this matter was argued on 21 October 2025, the applicant complained
about not having enough time to say what she wanted in her replying affidavit.
I pointed out to her that the deadline was imposed by way of the order of
Daniels J, and that I will decide this case only on the basis of what was before
me pursuant to that order and the applicant’s founding and replying affidavits,
and nothing more. Despite the applicant being so informed, she sought to
upload a comprehensive further affidavit which she labelled an ‘ explanatory
affidavit’ onto CaseLines on 22 October 2025, the day following conclusion of
the hearing. There is simply no legal basis for her to submit such an affidavit,
and I shall have no consideration or regard to the contents thereof.
[5] As the applicant is seeking final relief, the applicant must satisfy three
essential requirements which must all be shown to exist, being: (a) a clear
essential requirements which must all be shown to exist, being: (a) a clear
2 See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at paras 59 – 60;
ADT Security (Pty) Ltd v National Security and Unqualified Workers Union and Others (2015) 36 ILJ
152 (LAC) at paras 30 and 32; Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163
(LAC) at para 27.
5
right; (b) an injury actually committed or reasonably apprehended; and (c) the
absence of any other satisfactory remedy.3
[6] In deciding a matter such as this, t wo questions must be answered at the
outset. First, does this Court have the jurisdiction to intervene at this point and
grant the applicant the relief she seeks. And second, has the applicant has
made out a proper case of compellingly extraordinary circumstances to justify
intervention at this stage. Fortunately, Daniels J has already disposed of the
issue of urgency by way of the order of 16 October 2025, so I need not decide
this. I will therefore only deal with the issue of jurisdiction , before turning to
deciding the merits of the applicant’s application.
Jurisdiction
[7] The Court in Gcaba v Minister for Safety and Security and Others 4 said that
jurisdiction means: ‘… the power or competence of a court to hear and
determine an issue between parties … ’. In the case of applications such as
the current application, in which urgent intervention in internal disciplinary
proceedings against an employee is sought, the Labour Court must have the
jurisdiction in terms of section 157 5, and the competence and power in terms
of Section 158,6 in order to do this, as will be elaborated on below.
[8] The Labour Court will only entertain any application brought directly to the
Court to interdict incomplete disciplinary proceedings in truly exceptional
circumstances, where material irremediable prejudice or injustice is shown to
exist. In Booysen v Minister of Safety and Security and Others
7, it was held as
follows:
3 Setlogelo v Setlogelo 1914 AD 221 at 227; Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd
2017 (1) SA 613 (CC) at para 8; V & A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20; Mere v Tswaing Local
Municipality and Another (2015) 36 ILJ 3094 (LC) at para 4.
4 (2010) 31 ILJ 296 (CC) at para 74.
4 (2010) 31 ILJ 296 (CC) at para 74.
5 Section 157(1) reads: ‘ Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere
in terms of this Act or in terms of any other law are to be determined by the Labour Court’.
6 Section 158(1) reads: ‘ (1) The Labour Court may (a) make any appropriate order, including (i) the
grant of urgent interim relief (ii) an interdict; (iii) an order directing the performance of any particular
act which order, when implemented, will remedy a wrong and give effect to the primary objects of this
Act; (iv) a declaratory order ….’
7 (2011) 32 ILJ 112 (LAC) at para 54.
6
‘… 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. The list is not exhaustive.’
[9] Similarly in Member of the Executive Council for Education, Northwest
Provincial Government v Gradwell 8 the Court confirmed that these kinds of
applications should only be entertained ‘ … in extraordinary or compellingly
urgent circumstances …’. And in Jiba v Minister: Department of Justice and
Constitutional Development and Others9 the Court held:
'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 b e
discouraged. These are matters best dealt with in arbitration proceedings
consequent on any allegation of unfair dismissal, and if necessary, by this
court in review proceedings …
’
[10] The requirements, for the want of a better description, for urgent intervention
in incomplete disciplinary proceedings in an employer has in my view been
further tightened by the recent judgment of the Labour Appeal Court (LAC) in
Cibane and Another v Premier of Province of Kwazulu- Natal
10. Relying on
how the Constitutional Court dealt with the notion of the Labour Court ’s
jurisdiction to adjudicate and decide unlawful dismissals in Steenkamp and
Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 11,
Others v Edcon Ltd (National Union of Metalworkers of SA intervening) 11,
8 (2012) 33 ILJ 2033 (LAC) at para 46. See also Uthukela District Municipality (supra) at para 38;
Ngobeni v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ
1704 (LC) at para 12; Food and Allied Workers Union and Others v Premier Foods Ltd t/a Blue
Ribbon Salt River (2013) 34 ILJ 1171 (LC) at para 15.
9 (2010) 31 ILJ 112 (LC) at para 17
10 [2025] 10 BLLR 1004 (LAC).
11 (2016) 37 ILJ 564 (CC) at para 106.
7
being a finding that the Labour Court in fact had no jurisdiction to determine
the lawfulness of a dismissal, the Court in Cibane decided:12
‘It is clear from this passage that outside of the scope of any statutory
provision that specifically confers jurisdiction on the Court, the Labour Court
has no jurisdiction, in any general sense, to make any determination of the
unlawfulness of employer conduct.’
The Court in Cibane then specifically came to the following two important
conclusions:13
‘In the absence of any statutory provision conferring jurisdiction on the Labour
Court both in respect of employer conduct alleged to be unlawful and in
employment-related matters generally, there can thus be no general rule, as
the judgment in Booysen might be construed, to the effect that the Labour
Court has jurisdiction to intervene in medias res to restrain any alleged
illegalities, irregularities or unfairness in incomplete disciplinary proceedings.’
And:14
‘In summary: to the extent that Booysen has been interpreted to establish a
general rule, qualified only by exceptionality, that the Labour Court has
jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an
interpretation that can be sustained by section 157(1) of the LRA.’
[11] What the above means, in my view, is that an applicant cannot simply rely on
a general jurisdiction of this Court to intervene, qualified only by
exceptionality. The applicant must show that the right to intervene arises from
a right bestowed on the applicant by the LRA, which is enforceable under the
LRA. If that is so, then the Court would have jurisdiction in intervene, on for
example an interim basis, pending the enforcement of such right in the normal
course. In casu, the applicant has a right, under section 188A(11) of the LRA,
to refer a dispute to the CCMA for determination because she has alleged her
being disciplined constitutes an occupational detriment as a result of a
being disciplined constitutes an occupational detriment as a result of a
protected disclosure she has made. But does this mean that this process
12 Id at para 24.
13 Id at para 27.
14 Id at para 32.
8
should stand in the way of Bidvest Services nonetheless being entitled to
continue with the internal disciplinary proceedings, whilst the process invoked
by the applicant runs its ordinary course to fruition in the CCMA. This is where
the requirement of exceptionality comes into its own. Therefore, I am satisfied
that in this case, the applicant seeks to assert a right under the LRA, and this
Court therefore has jurisdiction to afford the applicant interdictory relief she
seeks, provided she satisfies the essential requirement of truly exceptional
circumstances.
[12] In my view, not to consider the application could cause a grave injustice. I
believe it would be patently unfair to expect the applicant to participate in what
would clearly be a comprehensive disciplinary hearing, in circumstances
where the applicant has alleged an occupational detriment as a result of
having made a protected disclosure, which according to her strikes at the very
heart of the disciplinary proceedings against her. The issue of the possible
occupational detriment following a protected disclosur e is in itself an issue
that carries with it an inherent quality of urgent intervention, especially where
an alternative process to deal with it is available and has been invoked, but
despite this, Bidvest Services is pressing on with internal discipline.
15 As held
in Matlala v Foskor Proprietary Limited and Others16:
‘Further, there is no equivalent ‘alternative’ to invoking s 188A(11), which
Matlala has a right to exercise. While there is a possibility of the provision
being abused to delay or avoid an internal hearing, it must be remembered
that procedure initiated by the employer does not disappear if an employee
successfully invokes the provision. It simply relocates the subject matter of
the internal enquiry to arbitral proceedings …
’
[13] I am therefore convinced that the necessary exceptional circumstances exist
to justify the intervention of this Court at this juncture. I am therefore willing to
to justify the intervention of this Court at this juncture. I am therefore willing to
entertain the merits of the applicant’s application, starting with an exposition of
the relevant background facts.
15 See Gallocher v Social Housing Regulatory Authority and Another (2019) 40 ILJ 2732 (LC) at para
17.
16 (2025/169524) [2025] ZALCJHB 478 (22 October 2025) at para 31.
9
The background facts
[14] When this matter was argued before me, I indicated to both parties, at the
outset, that I believed this matter could be disposed of and relief be afforded
to the applicant on the basis of the existence of the referral made to the
CCMA under section 188A(11) , considered with the common cause fact that
the applicant had indeed made a protected disclosure. However, Bidvest
Services was adamant that I needed to inquire into the applicant’s bona fides,
or differently put, whethe r there was any nexus between the applicant’s
protected disclosure and the disciplinary action taken against her. As a result,
this matter was extensively argued by both parties on the basis of this nexus
existing or not. However, and for the reasons dealt with later in this judgment,
I do not believe any of this is relevant. I say this at this point, because I simply
do not intend to set out all of the facts advanced by the parties relating to this
issue. I will only set out the facts that I believe is pertinent in deciding whether
the applicant is entitled to the relief she seeks.
[15] The applicant is employed by Bidvest Services as a business development
executive, commencing employment on 1 April 2024. The applicant reports
directly to the f irst respondent as the chief executive officer (CEO) of Bidvest
Services. Prior to first respondent’s appointment to her current role as CEO of
Bidvest Services, she was the Chief Operating Officer: Customised Solutions
at Bidvest Facilities Management (TFMC).
[16] On 10 June 2025, the applicant made a disclosure to the Bidvest Group
Executive Director regarding what she perceived to be a procurement
irregularity involving the f irst respondent. According to the applicant, the first
respondent was involved in securing an employment opportunity for the son of
the procurement manager at Famous Brands in exchange for Bidvest
becoming a preferred service provider of Famous Brands . The disclosure was
becoming a preferred service provider of Famous Brands . The disclosure was
received by the Group Executive Director , who on 26 June 2025 asked the
applicant to make a written statement that would be sent to the Group Head of
Internal Audit . On 30 June 2025, the applicant did submit the written
statement regarding the disclosure she had made and was invited to attend a
10
meeting with the Group Head of Internal Audit about this, which took place on
8 July 2025. After consideration of the disclosure, the applicant was ultimately
informed on 29 September 2025, that the disclosure had been found to lack
substance and had no merit, and thus the issue had been concluded.
[17] It may just be said at this point that the first respondent herself, as the
applicant’s superior, was not in any manner involved in the receipt, processing
of or dealing with this disclosure. According to the first respondent, she was
not aware of it at all. The applicant had a different view, indicating that i n a
conversation on 27 June 2025 with the first respondent, she was informed of
it. Bidvest Services has a different take on this conversation, indicating that in
it, nothing was said about the protected disclosure , and the conversation
solely dealt with the grievance and the relationship of trust between the
applicant and first respondent. I do not believe it is necessary, at this point, to
decide which version is true. This would be an issue to be decided on another
day in proceedings to come. The only important undeniable fact is that the
applicant did make a disclosure at Group level, which was received and dealt
with as such.
[18] According to the applicant, the occupational detriment towards her because of
the aforesaid disclosure she had made started around 28 July 2025, when
she had to attend a mediation session with the first respondent and an external
mediator, as a result of a grievance instituted by the applicant against the first
respondent in May 2025. In this mediation, and according to the applicant, the
first respondent told the applicant she could not be trusted because of the
grievance she had lodged, and the first respondent now accused the applicant
of being insubordinate. Up to this point, the applicant had a clean employment
record and had been awarded long- term share incentives in March 2025
record and had been awarded long- term share incentives in March 2025
because of her performance and positive contribution to Bidvest.
[19] According to Bidvest Services, this mediation came about because of a
strained relationship between the applicant and the first respondent as her
direct superior. As touched on above, t he applicant had in fact initiated a
grievance against the first respondent, which grievance had nothing to do with
11
any issue of having made a pro tected disclosure for which she was being
subjected to an occupational detriment. In the mediation, efforts were made to
properly engage with the applicant to resolve the issues, but to no avail.
Despite all attempts to resolve this grievance by independent mediation, the
applicant was not satisfied with proposed mediation outcome, rejected it, and
then simply withdrew from the entire grievance process, bringing it to an end.
[20] I must confess that a complete conspectus of the affidavits in this matter
make it apparent to me that the relationship between the applicant and the
first respondent as her superior was strained, to say the least. It is not
necessary, in these proceedings, to delve into why this was the case. On the
common cause facts, and towards the end of August 2025, Bidvest Services
sought to discuss the possibility of a mutual separation agreement with the
applicant. A meeting was convened for this purpose, but the applicant did not
attend the meeting. As a result, the applicant was placed on special leave on
10 September 2025 to enable her to obtain proper advice and then give
proper attention to the issue of the prosed mutual separation. This mutual
separation exploration would be attended to by someone else on behalf of
Bidvest Services, namely Ani nka Wessels (Wessels). The applicant however
refused to accept this special leave and failed to engage on the issue of
possible mutual separation.
[21] The first respondent then placed the applicant on suspension on 12
September 2025. The suspension notice reflects that this was being done in
anticipation of a disciplinary hearing to follow. It was broadly stated in the
suspension notice that the allegations against the applicant concerned her
allegedly having attempted to mislead Bidvest and displaying a general lack of
attention to her duties. It was also indicated that a notice to attend a
disciplinary hearing would follow shortly.
disciplinary hearing would follow shortly.
[22] On 19 September 2025, the applicant was given notice to attend a disciplinary
hearing scheduled for 1 October 2025. T wo charges were proffered against
her. The first was gross dishonesty in respect of inviting a person to the
Bidvest golf day in 2023, under false pretences. The second charge was
12
disregarding an instruction which related to her refusal to adhere to the
instruction placing her on special leave.
[23] In response to being charged, the applicant on 25 September 2025, raised a
written complaint to the Bidvest Group CEO, Mpumi Madisa (Madisa), that
she was being subjected to unfair labour practices as a result of the grievance
she lodged against the first respondent in May 2025 and the protected
disclosure she had made in June 2025. The complaint set out in some detail
all the events that transpired, according to the applicant, since initiating the
above processes and until she was suspended in September 2025. For the
purposes of deciding this matter, it is not necessary to delve into all these
events. Suffice it say, the applicant requested intervention from Madisa in
respect of what the applicant described as constructive dismissal and
victimization for whistle blowing and for lodging a grievance.
[24] In a response on 29 September 2025, the applicant was informed by Gillian
McMahon (McMahon) , the Group Executive Director, that, inter alia , the
Group does not get involved in these kind of issues at Group level, and these
issues must be dealt with at D ivisional level (thus in Bidvest Services itself) .
The applicant was encouraged to raise her concerns with the Divisional HR
Executive or with Wessels, who had been tasked by the Division to deal with
the matter.
[25] On 1 October 2025, the Disciplinary Enquiry first sat and was postponed to 16
October 2025, for reasons that need not concern this judgment. On 14
October 2025, the Applicant referred a request for the appointment of a
CCMA Commissioner in terms of Section 188A (11) to the CCMA . The
applicant then sent an e- mail to the initiator of the disciplinary hearing on 15
October 2025, requesting that the disciplinary hearing scheduled for 16
October 2025 be terminated as a result of the referral in terms of section
October 2025 be terminated as a result of the referral in terms of section
188A(11) she had made to the CCMA on 14 October 2025. The applicant was
informed that it was up to the disciplinary hearing chairper son to dec ide this
issue, and she needed to raise her request with the chairperson. That meant
the disciplinary hearing was proceeding, nonetheless.
13
[26] The current application then followed, leading to the order by Daniels J on 16
October 2025, and the proceedings now before me.
Analysis
[27] As touched on above, the applicant has said that she has been visited with an
occupational detriment, in that her being charged and disciplined was
motivated by her protected disclosure in June 2025 concerning the Famous
Brands incident. This is thus a case founded on the Protected Disclosures Act
(PDA)
17, which provides that ‘ No employee may be subjected to any
occupational detriment by his or her employer on account, or partly on
account, of having made a protected disclosure’ .
18 An occupational detriment
includes, by definition in the PDA, the taking of disciplinary action.
[28] As a point of departure, several incontrovertible pertinent facts must be set
out. The first such fact is that it was common cause that the applicant had
made a protected disclosure in June 2025 concerning an alleged procurement
irregularity involving the first respondent and relating to Famous Brands , to
the head office of Bidvest Group. This disclosure was accepted, processed,
and dealt with as a protected disclosure by Bidvest Group. Secondly, this
protected disclosure, and the receipt thereof by Bidvest Group, pre-dated the
institution of the disciplinary proceedings against the applicant. Third, and
upon the applicant being charged, and before the disciplinary hearing was
convened for the purpose of commencing with the actual hearing, the
applicant referred a dispute as contemplated by section 188A(11) to the
CCMA. So where does this leave the internal disciplinary hearing in Bidvest
Services? To answer this question, the purpose of section 188A(11), and how
it must be applied, falls to be decided.
[29] From the outset, it must always be remembered that Section 188A(11) is part
and parcel of Section 188A, which envisage s pre-dismissal arbitration by the
17 Act 26 of 2000.
18 See section 3 of the PDA.
14
CCMA in the stead of and in place of internal disciplinary hearings in the
employer itself. Or in other words, it is a complete substitute for an internal
disciplinary hearing. 19 In ordinary circumstances, this process can only be
followed by agreement between the employer and the employee. 20 However,
section 188A(11) specifically envisages that section 188A pre- dismissal
proceedings may be unliterally invoked by either employer or employee if that
section is found to apply. Or differently said, the employee may elect to invoke
it without needed the consent / agreement of the employer, by way of a mere
referral to the CCMA.21
[30] There is an important reason why this option of unilateral invoking of section
188A was afforded to the parties in the case of an alleged occupational
detriment as a result of a protected disclosure. This was succinctly described
in Nxele v National Commissioner: Department of Correctional Services and
Others22 as such:
‘Section 188A(11) was introduced into the LRA consequent to
the amendments to the LRA that came into effect in 2015. The object of this
provision is to avoid disputes where an employee claims that the holding of an
enquiry into allegations of misconduct, and suspension pending such an
enquiry, breach the provisions of the PDA. The section accordingly permits
either party to insist on an enquiry under s 188A with a view to reduce the risk
of collateral litigation, including High Court litigation, which had been common
in these circumstances.’
19 In SA Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (2013)
34 ILJ 706 (LC) at para 19, the Court said: ‘ … Section 188A holds the promise of the expeditious
resolution of disputes about employee conduct and the swift imposition of a fair sanction for any
proven misconduct …’.
20 Section 188A(1) refers to consent being given by the employee of such a process, or a collective
agreement providing for the same.
agreement providing for the same.
21 In Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ
1799 (LC) at para 30, the Court held: ‘ The use of the words ‘despite subsection (1)’ in s 188A(11)
clearly shows that the legislature deliberately stripped the employer of its discretion to unilaterally
trigger a s 188A hearing, subject to the employee’s consent. At the advent of s 188A(11), employees
may ‘require’ or ‘insist’ that the disciplinary enquiry be conducted in accordance with s 188A, termed
‘pre-dismissal arbitration’. The word ‘require’ in s 188A(11), given its ordinary meaning, means to
enjoin, oblige, constrain, command, decree, demand, dictate, direct, etc …’.
22 (2018) 39 ILJ 1799 (LC) at para 26. This judgment was upheld by the LAC in National
Commissioner: Department of Correctional Services v Nxele and Another [2025] 5 BLLR 472 (LAC).
See also Letsoalo and Others v Minister of Police and Others (2016) 37 ILJ 1916 (LC) at para 26.
15
And in Ntombela v Community Scheme Ombud Service (CSOS) and O thers23
the Court referred with approval to the following dictum from an unreported
judgment in Jacobs and Others v National Commissioner of South African
Police Service and Another:24
‘Obviously, section 188A(11) is not necessarily a scheme to challenge the
alleged occupational detriment in terms of the PDA, per se. However, it is a
mechanism aimed at avoiding collateral litigation where an employee claims
that, the holding of a disciplinary enquiry into allegations of misconduct or
suspension pending such an enquiry, offends the provisions of the PDA.
Whilst the PDA protects employees who make a protected disclosure,
“section 188A(11) aims to strike a balance between taking no action because
the person allegedly guilty of misconduct is a whistle-blower in terms of PDA
or allowing a disciplinary process, with the safeguard being that the
disciplinary process has to be done in a manner that is entirely independent of
the employer.
’
[31] In order for the CCMA to have jurisdiction to entertain a dispute under section
188A in the ordinary course under section 188A(1) , it needs to be proven that
the parties agreed (consented) to it. But as discussed earlier, this is not the
case where section 188A(11) applies. In the case of section 188A(11), what
must be established by the applicant for pre -dismissal arbitration to be
accepted is the following, as appositely set out in Mamodupi v Property
Practitioners Regulatory Authority and Another:25
‘… The occupational detriment must be retaliatory in form and be connected
to the making of the protected disclosure. Accordingly, in my view the
provisions of the subsection are evocable if the following jurisdictional facts
are present in the order set out below:
45.1 The employee must make a protected disclosure;
45.2 Thereafter, the employer must subject the employee who already made
a protected disclosure to an occupational detriment;
a protected disclosure to an occupational detriment;
23 [2024] JOL 63608 (LC) at para 13.
24 At para 21 of such judgment.
25 (J68/23) [2023] ZALCJHB 19 (13 February 2023) at para 45.
16
45.3 Once so subjected, an employee must allege honestly and sincerely so
that a causal connection does exist between his or her protected disclosure
and the occupational detriment. Differently put, it is because of having made a
protected disclosure that an employer chose to respond by an occupational
detriment.’
The Court in Mamodupi supra concluded:26
‘In my view if any of the above stated jurisdictional facts is absent, subsection
188A (11) cannot be invoked. Therefore, to my mind, the council; accredited
agency and the commission must refuse to entertain the request that an
inquiry be conducted in terms of this subsection if any of the jurisdictional
facts are absent….’
[32] In Foskor supra, even though the Court agreed in general with the
jurisdictional requirements as set out in Mamodupi, the Court warned that one
should be careful not to set the bar too high where it comes to the
requirement of establishing a nexus between the protected disclosure and the
conducting of the discipline, where it comes to deciding whether to accept
pre-dismissal arbitration under section 188A(11) . In other words, The Court in
Foskor believed these requirements cannot be said to mean that the applicant
party must actually prove that an occupational detriment based on a protected
disclosure at least prima facie exists. The Court in Foskor appositely held in
this respect:27
‘In Mamodupi the court articulated the test for proceeding with the enquiry as
being whether the employee has established the prima facie factual existence
of a contravention. I agree in general with this formulation, but not if it is
interpreted to mean that every element required to establish an unfair labour
practice relating to an occupational detriment must be established on a prima
facie basis to pass the threshold of s 188A(11). That dispute falls outside the
remit of an arbitrator deciding whether to hear the disciplinary or incapacity
remit of an arbitrator deciding whether to hear the disciplinary or incapacity
case. The assessment of the employee’s bona fide belief as a precursor to
the statutory enquiry also does not require that level of scrutiny, because the
26 Id at para 47.
27 Id at para 49.
17
issue the arbitrator will decide is not the merits of their occupational detriment
claim, but the merits of the employer’s case of misconduct or incapacity …’
[33] Therefore, it is not necessary for the employee, in this context, to also
establish that the disciplinary proceedings against him or her constitutes a
contravention of the PDA and that the employee therefore qualifies for
protection as a result. 28 As held in National Commissioner: Department of
Correctional Services v Nxele and Another29:
‘There is no dispute that Mr Nxele made a protected disclosure in 2018. The
issue on appeal is whether the Labour Court was correct in finding that he had
alleged in good faith that the holding of a disciplinary enquiry on the 2022
charges amounted to a contravention of the PDA and whether he was
therefore entitled to have the disciplinary proceedings converted into an
inquiry by arbitrator under section 188A(11) of the LRA.
There is no obligation on an employee who seeks to rely on section 188A(11)
to prove that the holding of the disciplinary hearing constitutes a contravention
of the PDA. Rather, what is required is that the employee alleges in good faith
that the holding of an inquiry does so.’
[34] The aforesaid means , in my view, that it all practicably unfolds as follows , in
the case of this avenue being pursued by the employee. The employee refers
a dispute to the CCMA under section 188A(11), alleging that the current
disciplinary proceedings, which have not yet commenced but is immanent,
constitutes an occupational detriment as a result of a protected disclosure. 30
In making this referral, the employee must at the very least seek to establish
that the disclosure that has been made to his or her employer, and would
28 This would entail, as set out in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey (2019) 40
ILJ 1224 (LAC) at para 56: ‘ … first to determine whether the various disclosures of information
constitute disclosures as defined in s 1 of the PDA; secondly, to decide if the disclosures are
protected disclosures, as contemplated in s 1, read with s 6 of the PDA; and thirdly, whether Dorey
was subjected to an occupational detriment (discipline and dismissal) by RCL on account, or partly on
account, of having made a protected disclosure …’.
29 [2025] 5 BLLR 472 (LAC) at paras 13 – 14.
30 In Mamodupi (supra) at para 51, the Court said: ‘ In practical terms, any request in terms of
subsection 188A (11) must be accompanied by the proof of the protected disclosure made, which
must predate the charge sheet – commencement of a disciplinary action …’.
18
qualify as a protected disclosure under section 1 of the PDA31. The employee
must also establish that the employer received such disclosure or was aware
of it. And finally, the employee must establish that he or she has a genuine
(bona fide), honest and sincere belief that a causal connection (nexus) exists
between his or her protected disclosure and the occupational detriment . The
Court in Independent Municipal and Allied Trade Union and Another v City of
Matlosana Local Municipality and Another 32 had the following to say where it
comes to establishing such a nexus:
‘… Thus, what I am required to establish is the 'proximate cause' of the
disciplinary enquiry. It is clear that a disciplinary enquiry against an employee
need not necessarily be the direct result of a disclosure. I propose that a
useful and practical approach is to consider factors such as (i) the timing of
the disciplinary enquiry; (ii) the reasons given by the employer for taking the
disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons
responsible within the employer for taking the decisions to institute charges.
…’
[35] But importantly, it is up to the appointed arbitrator at the CCMA to first decide
whether or not the employee has established these jurisdictional pre-
requisites, to engage the jurisdiction of the CCMA under section 188A(11) ,
after considering evidence in this regard presented by the parties . In other
words, the mere referral of the section 188A(11) dispute to the CCMA does
not mean that it automatically substitutes the internal disciplinary proceedings
with pre-dismissal arbitration proceedings at the CCMA . It must be up to the
arbitrator to decide whether to permit that the proceedings under section 188A
be conducted. The important point is that this decision is left up to the
arbitrator. It should not be required of the Labour Court to decide this
31 Section 1(1)(i) of the PDA defines the term 'disclosure ' as being any disclosure of information
regarding any conduct of an employer, or an employee of that employer, made by any employee who
has reason to believe that the information concerned shows or tends to show one or more of the
following: (1) That a criminal offence has been committed, is being committed or is likely to be
committed; (2) that a person has failed, is failing or is likely to fail to comply with any legal obligation
to which that person is subject; (3) that a miscarriage of justice has occurred, is occurring or is likely to
occur; (4) that the health or safety of an individual has been, is being or is likely to be endangered; (5)
that the environment has been, is being or is likely to be damaged; and (6) unfair discrimination as
contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 ( Act 4 of
2000).
32 (2014) 35 ILJ 2459 (LC) at para 77.
19
question. That is why, in my view, i t is not appropriate for Bidvest Services to
say that the Labour Court should enquire into the nexus between the
protected disclosure and the disciplinary proceedings against the applicant .
This Court cannot b e the gatekeeper for access to the CCMA under section
188A(11) and effectively decide this issue for it. The Court in Mamodupi supra
held as follows:33
‘I agree that the effect of requiring that an inquiry be conducted in terms of the
subsection is that the commenced internal disciplinary hearing terminates. But
the termination does not happen automatically after the request. It happens
once the administrative bodies has acceded to the request. Such that if the
jurisdictional requirements are not met, the commenced internal disciplinary
hearing does not lawfully terminate.
’
[36] If the arbitrator , once he or she has considered whet her the above
jurisdictional requirements have been met, decides that there does not exist a
qualifying protected disclosure linked to an occupational detriment , then the
arbitrator will decline to convene pre- dismissal arbitration proceedings under
section 188A , and the matter will simply revert back to the employer for a
continuation of the internal disciplinary hearing.34 However, and if the referral
is accepted by the arbitrator, it means that section 188A pre- dismissal
arbitration proceedings at the CCMA under section 188A(11) must happen,
and this would be conducted under the normal procedure applicable to all
disputes dealt with by the CCMA under section 188A. Therefore, in the case
of an alleged misconduct dispute, the appointed arbitrator must decide, on a
balance of probabilities, whether the employee committed the misconduct with
which or she has been charged. 35 The employer would obviously have to
prove its case in this regard, and present proper evidence to substantiate
33 Id at para 48.
33 Id at para 48.
34 See Mudau v Metal and Engineering Industries Bargaining Council and Others (2013) 34 ILJ 663
(LC) at paras 16 – 17.
35 In Mudau (supra) at para 19, the Court held: ‘… The task of arbitrators in terms of s 188A is slightly
different in that in that regard the task is to determine on a balance of probabilities whether an
employee has committed an offence for which he or she has been charged and, if so, whether there is
a basis in fairness to terminate the employment relationship between the parties. In other words, the
terms of reference for the arbitrator in terms of s 188A are, unless indicated otherwise, limited to
determining whether an employee has committed an offence and, if so, whether there exists a basis
in fairness to terminate the employment relationship …’.
20
such a conclusion by the arbitrator. If the arbitrator decides the misconduct i s
not proven, then that is the end of the matter , the employee is effectively
finally acquitted, and no further proceedings follow relating to these
misconduct allegations , subject of course to the employer’s right of review
under section 145(1) of the LRA, as a determination by an arbitrat or under
section 188A is dealt with in the same manner as an arbitration award by a
CCMA arbitrator in any dispute under the LRA .36 If the arbitrator accepts
misconduct has been committed, then the arbitrator must decide on an
appropriate penalty (sanction) based on the particular facts and
considerations of fairness. The arbitrator may impose the sanction of
dismissal. Where the arbitrator finds that the employee be dismissed, that is
equally the end of the matter and the employee’s employment is terminated,
with no further challenges being permissible, subject also only to the right of
the employee to review the determination by way of application to the Labour
Court. In Kubheka v Member of the Executive Council: Human Settlements
(Gauteng Provincial Government) and Another,37 the Court held as follows:
‘The s 188A of the LRA scheme catapults the disciplinary process to statutory
arbitration at the instance of the employee’s consent to forgo the right to the
security and comfort of both processes. Equally, the employer relinquishes its
prerogative to enforce the disciplinary measures to the arbitrator. The yield to
both parties is the impartial adjudicator, costs saving and expeditious
outcome.’38
[37] What is important to bear in mind is that the arbitrator, when conducting the
proceedings under section 188A(11), does not decide whether the disciplinary
proceedings against the employee is irregular or unlawful or somehow
compromised because of the protected disclose , or whet her the employees
36 In Solidarity on Behalf of Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and
Others (2021) 42 ILJ 852 (LAC) at para 18, it was held: ‘ Arbitration awards issued by an arbitrator in
terms of s 188A are final and binding. Such awards may be reviewed by the Labour Court in terms of
s 145(1) when issued by an arbitrator acting under the auspices of the CCMA or a bargaining council
…’. Similarly, in Mudau (supra) at para 20, it was said: ‘ An arbitration award made in terms of s 188A
is reviewable in terms of s 145 of the LRA …’. See also Maeta v Bidvest Services (Pty) Ltd and
Others (2024) 45 ILJ 2587 (LC) at para 35.
37 (2021) 42 ILJ 1497 (LC) at para 26.
38 Of course, and in the case of section 188A(11), no consent is required.
21
qualifies for protection under the PDA. 39 Simply put, the arbitrator does not
decide a protected disclos ure case. The arbitrator cannot, for example, issue
a ruling or determination that any discipline against the employee be
terminated because of the protected disclosure, as the arbitrator has no
jurisdiction to do so.40 All the arbitrator can do is to conduct what is in essence
an independent disciplinary hearing in respect of the misconduct charges
against the employee, and decide whether these charges have substance and
what penalty should be imposed on the employee if the misconduct was found
to have been committed. This was made clear in Foskor supra as follows:41
‘… the enquiry conducted by the arbitrator will be concerned only with
whether the employer proves the allegations of incapacity or misconduct and
any consequences which might flow from that. In the absence of such an
arrangement, the arbitrator conducting the misconduct or incapacity inquiry
has no authority to determine if the employee has suffered an occupational
detriment because they made a protected disclosure. Therefore, the
employee cannot use the procedure to vindicate their claim that the
disciplinary action of the employer amounts to an occupational detriment
under the PDA.
’
[38] An employee believing that he or she is being subjected to an occupational
detriment as a result of making a protected disclosure, in the form of being
disciplined, should very carefully consider whether they wish to invoke section
188A(11). This is because of section 188A) (12), which reads: ‘ The holding of
an inquiry by a arbitrator in terms of this section and the suspension of
an employee on full pay pending the outcome of such an inquiry do not
39 An employee would so qualify on the basis as described in Palace Group Investments (Pty) Ltd and
Another v Mackie (2014) 35 ILJ 973 (LAC) at para 15 , as follows: ‘… not all disclosures are protected
in the sense of protecting the employee making the disclosure from being subjected to an
occupational detriment by the employer implicated in the disclosure. A protected disclosure is defined
as a disclosure made to the persons/bodies mentioned in ss 5, 6, 7, 8 and 9 and made in accordance
with the provisions of each of such sections. In terms of s 6, for a disclosure to fall within the ambit of
a protected disclosure it must have been made in good faith. It is clear that before other provisions of
the PDA can come into play, the disclosure allegedly made must answer to the definition of that term
as set out in the definitions section …’.
40 See Feni v Pan SA Language Board (2011) 32 ILJ 2136 (LC) at paras 19 – 20; NEHAWU v Office
of the Premier: Limpopo Provincial Government 2022 JDR 1969 (LC) at paras 9 – 10.
41 Id at para 45. See also Tsibani v Estate Agency Affairs Board and Others [2021] JOL 51625 (LC) at
para 72.
22
constitute an occupational detriment as contemplated in the Protected
Disclosures Act …’. What this means is that an employee, who may be found
by an arbitrator to have committed the misconduct with which he or she has
been charged, and then dismissed as a result, cannot pursue the
occupational detriment issue any further, as for example an automatic unfair
dismissal under section 187(1)(h) of the LRA. Where completely independent
and impartial arbitration, conducted by a body specifically designated for such
pursue by way of the LRA, determines that an employee be dismissed for
proven misconduct, that must finally dispose of any notion that the dismissal
is motivated by the employee making a protected disclosure. 42 Colloquially
speaking, an independent CCMA arbitrator would have no skin in that game.
[39] Therefore, pre-dismissal arbitration under section 188A(11) is a process that
completely substitutes the internal disciplinary hearing in all respects. The two
processes cannot exist side by side. Once the pre- dismissal arbitration
proceedings are convened, then internal disciplinary proceedings must
terminate. This was made pertinently clear in a number of judgments. First, in
Foskor supra it was held :43 ‘… If the request for a statutory hearing is
successful, it merely means that the internal incapacity or misconduct inquiry
is substituted with an arbitration presided over by a completely independent
chairperson …’. Next, and in the Labour Court judgment in Nxele supra, it was
stated:
44 ‘… The internal disciplinary enquiry that would have commenced and
is pending must terminate …’. The same sentiment was in expressed in SA
Broadcasting Corporation SOC Ltd v Phasha 45 as follows: ‘… The essence of
s 188A is to provide for a pre-dismissal arbitration which substitutes arbitration
before an independent arbitrator for a disciplinary enquiry …’. As lastly, as
succinctly said in Tsibani v Estate Agency Affairs Board and Others:46
succinctly said in Tsibani v Estate Agency Affairs Board and Others:46
‘Section 188A(11) does not envisage the holding of two parallel hearings.
Section 188A provides for an inquiry into allegations relating to an employee's
42 Tsibani (supra) at para 63.
43 Id at para 44.
44 Id at para 32. In Mudau (supra) at para 16, the exact same thing was said.
45 (2021) 42 ILJ 816 (LC) at para 24.
46 [2021] JOL 51625 (LC) at para 67.
23
conduct or capacity and for such an inquiry to be conducted by an arbitrator,
in accordance with the provisions of the said section. If the inquiry relates to
allegations relating to an employee's conduct, the section 188A inquiry will
happen instead of an internal disciplinary hearing.’
[40] This brings me neatly back to the case in casu. All that this Court is now
required to decide is firstly whether there is a protected dis closure made by
the applicant which Bidvest Services is aware of. The answer is yes.
Secondly, this Court must decide if this protected disclosure pre-dated the
institution of the disciplinary proceedings, and once again, the answer is in the
affirmative. And lastly, is there a referral by the applicant of a dispute as
contemplated by section 188A(11) to the CCMA, which is obviously the case,
because this is why we are here.
[41] Once the aforesaid i s true, the CCMA arbitrator must now be given the
opportunity to do his or her job to decide if the referral qualifies for acceptance
as being a bona fide allegation of a protected disclosure as contemplated by
section 188A(11), for the purposes of deciding whether or not to convene pre-
dismissal arbitration proceeding sunder section 188A. It is in this context that
the CCMA arbitrator is the one that must decide if the nexus between the
disciplinary proceedings and the protected disclosure, which was the subject
matter of so much debate between the parties before me, exists. This Court
should decline to usurp these functions specifically bestowed on the arbitrator,
by becoming involved in this determination. As decided in Foskor supra:47
‘The next issue is whether it is appropriate for the Labour Court to determine
whether or not the statutory enquiry can proceed? The request is made to the
CCMA or relevant bargaining council. It is the commissioner or panellist who
is called upon to preside in the enquiry and therefore is first seized with the
is called upon to preside in the enquiry and therefore is first seized with the
question whether the request has been properly made. As far as possible, this
court should not be usurping that primary role by determining the jurisdictional
question in the form of issuing a declarator before the request has even been
considered by the arbitral forum. This is exactly what this court would be
47 Id at para 50.
24
doing if it considered whether Matlala is entitled to the primary relief he seeks
…’
[42] Therefore, and as matters stand, the applicant has properly initiated a process
under the LRA which, if accepted by the CCMA, would serve to supplant the
internal disciplinary hearing conducted by Bidvest Services with pre-dismissal
arbitration under the auspices of the CCMA, and thus terminate any
disciplinary proceedings against the applicant in Bidvest Services itself. But it
is also true that the decision in this regard has not yet been made by an
allocated CCMA arbitrator. That being the case, it would be entirely
inappropriate and in my view in fact irregular to allow Bidvest Services to
proceed with the internal disciplinary hearing, and as such, it must be
interdicted. The applicant has thus shown a clear right in this respect. As
succinctly stated in Tsibani supra:48
‘Section 188A(11) entitles an employee, who is about to be subjected to an
internal disciplinary process and who alleges in good faith that the intended
disciplinary hearing contravenes the PDA, to instead request an inquiry be
conducted in terms of section 188A. I see no reason why, if an employer,
under circumstances where the employee complies with the requirements of
section 188A(11), refuses to have the inquiry into the conduct or capacity of
the employee conducted in terms of section 188A, the employee would not be
entitled to approach this Court for an order interdicting the impending internal
disciplinary hearing and an order directing that the inquiry pertaining to the
employee’s conduct or capacity be conducted in terms of section 188A of the
LRA.
’
[43] If the internal disciplinary proceedings against the applicant in Bidvest
Services are not interdicted, and allowed to continue, the applicant would face
the dubious prospect of having to participate in an internal disciplinary hearing
which could have no lawful consequence and could rightly be considered to
which could have no lawful consequence and could rightly be considered to
be terminated. Secondly, this situation may then require and / or lead to all
kinds of collateral challenges and litigation to address the issue going forward,
which is the very thing that section 188A(11) seeks to avoid. And finally, it
48 Id at para 64.
25
would also deprive the applicant of the opportunity to avail herself of the
protection of an independent determination of the misconduct charges against
her, where internal disciplinary proceedings may be compromised as a result
of the protected disclosure she has made.49.
[44] As opposed to the aforesaid prejudice faced by the applicant, Bidvest
Services will suffer little harm. If the CCMA arbitrator ultimately decides the
referral does not qualify, the status quo is automatically restored, and the
internal disciplinary proceedings are then simply reinstated / reinstituted. And
if the CCMA accepts the referral, Bidvest Services still has the opportunity to
prove the misconduct charges against the applicant, and if successful , secure
her dismissal. It will also have the added benefit of the nature of the pre-
dismissal arbitration proceedings under section 188A, which would finally
dispose of the protected disclosure issue as a basis to challenge any
dismissal following on such process.
[45] In presenting argument, counsel for Bidvest Services stated that to allow this
matter to proceed under section 188A(11) would cause undue delay and
additional expense for Bidvest Services. Although this may have a ring of
truth, the situation is in my view exaggerated. Yes, pre- dismissal arbitration
proceedings would take longer than internal disciplinary hearings, but
nonetheless, the CCMA is known for expeditiously dealing with disputes , so
the further delay is not excessive. And as far as expense is concerned, this
cannot be considered material, and in any event , it fails to account for the
upside that there will not be a later unfair dismissal challenge to the CCMA ,
should the applicant be dismissed, which would have cost Bidvest in any
event. Overall, it is my view that these considerations are not material.
[46] I am therefore satisfied that the applicant has made out a proper case of
undue prejudice should Bidvest Services proceed with the internal disciplinary
undue prejudice should Bidvest Services proceed with the internal disciplinary
49 As said in Foskor (supra) at para 51: ‘Should the court then grant interim relief by suspending the
internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s
188A(11) enquiry? If the court does not stay the internal enquiry, Matlala could be denied the
opportunity of exercising his right to request the statutory enquiry because, unless the request for the
statutory enquiry is accepted, the employer can proceed with the internal one in the meantime …’.
26
hearing, despite her invoking section 188A(11) of the L RA. Overall,
considerations of prejudice favour the applicant.
[47] Lastly, and on the issue of the availability of a suitable alternative remedy,
this has to a large extent already been dealt with, above. I am satisfied that no
suitable alternative remedy exists, as the process under section 188A(11) can
in itself be described as he appropriate alternative remedy available for issues
relating to occupational detriments based on protected disclosures.50 There is
really nothing else the applicant can do to assert her rights in this regard. The
only other option would be, should she be dismissed, to pursue an automatic
unfair dismissal claim , but this is reactive, and cannot serve to achieve the
objectives envisaged by section 188A(11). I again refer to Foskor supra,
where the following sentiments were expressed:51
‘… Matlala has acted with speed in bringing this application, the prejudice to
the employer of the delay must be balanced against Matlala’s lost opportunity
of an inquiry before an arbitrator. Matlala has no other suitable way of
effectively preserving his right to have his request considered. Whatever the
merits of his request are, that should be determined by the forum considering
it and granting interim relief would facilitate that …’
And in Gallocher v Social Housing Regulatory Authority and Another 52 it was
held:
‘Also, the nature of the effect of occupational detriments on employees is an
issue that cries out for urgent intervention by this court, especially where an
employee has not been dismissed. There is provision in the LRA for an
automatic unfair dismissal claim where an employee is dismissed due to an
occupational detriment, but this would not apply in this case. There is no other
remedy available to stop the detriment short of dismissal being visited upon
an employee, other than by way of immediate intervention by this court.
an employee, other than by way of immediate intervention by this court.
Insofar as it can be said that the applicant’s pending unfair labour practice
dispute referred to the CCMA is an alternative remedy, it can even be said
50 See Letsoalo (supra) at para 27.
51 Id at para 52.
52 (2019) 40 ILJ 2732 (LC) at para 82.
27
that approaching this court is not competent without such a referral, making
the prior referral necessary for this application.’
Conclusion
[48] In sum, I am satisfied that the applicant has met the requirements necessary
in order for her to obtain the relief she seeks. The applicant has a clear right
to the relief she seeks, has no alternative remedy available to her , and
considerations of prejudice favour her . The applicant’s application must thus
succeed.
[49] However, it must be reiterated that as yet, the CCMA had not decided
whether the applicant’s referral under section 188A(11) is to be entertained.
Any interdict granted must account for the fact that it must lapse if the CCMA
decides not to accept such referral, and this matter then reverts back to an
internal disciplinary hearing. The relief afforded must therefore reflect that the
internal disciplinary proceedings be interdict ed pending the decision of the
CCMA. The relief must also cater for the fact that the internal disciplinary
proceedings must terminate of the CCMA accepts the referral and convened
pre-dismissal arbitration proceedings. The order I grant will reflect this.
Costs
[50] The applicant represented herself. Even though she was successful, the issue
of costs thus does not arise. I would in any event not have been inclined to
make any costs award against either party, no matter who was successful,
considering that the parties have an ongoing relationship with one another . I
also consider that further proceedings between them are a certainty , and in
such context it would not be appropriate to mulch either one with a costs order
at this stage.
53 I am also mindful of the dictum of the Constitutional Court in
Zungu v Premier of the Province of Kwa- Zulu Natal and Others 54 where it
comes to costs awards in employment disputes before this Court, and I do not
53 See Gallocher (supra) at para 85.
54 (2018) 39 ILJ 523 (CC) at para 25.
28
consider there to be sufficient reason to depart from this. For all these
reasons, I exercise the wide discretion I have under section 162(1) by making
no order as to costs.
[51] For all the reasons as set out above, I make the following order:
Order
1. The internal disciplinary enquiry at the second r espondent into the
charges of misconduct against the a pplicant, is interdicted and
suspended pending a decision by the arbitrator appointed by the t hird
respondent whether the disciplinary enquiry should be conducted in
accordance with Section 188A(11) of the Labour Relations Act.
2. In the event that the arbitrator appointed by the third respondent
decides that the disciplinary enquiry shall be conducted in accordance
with Section 188A(11) of the Labour Relations Act under the auspices
of the third respondent, the internal disciplinary enquiry at the second
respondent shall be considered and regarded to be finally terminated.
3. In the event that the arbitrator appointed by the third respondent
decides that the disciplinary enquiry shall not be conducted in
accordance with Section 188A(11) of the Labour Relations Act under
the auspices of the third respondent, the internal disciplinary enquiry at
the second respondent may recommence forthwith, and the interdict
granted in terms of paragraph 1 of this order shall automatically lapse.
4. There is no order as to costs.
_________________
S Snyman
Acting Judge of the Labour Court of South Africa
29
APPEARANCES:
On behalf of the Applicant: In person
On behalf of the First Respondent: Mr C Beckenstrater of Moodie & Robertson
Inc Attorneys