Sneller Verbatim/MC
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J230/01
Date of judgment: 2001-01-30
In the matter between
NYOKA SINDISIWE PATRICIA VENON Applicant
and
NATIONAL RESEARCH FOUNDATION Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is an urgent application in which the applicant, the former employee
of the respondent, seeks relief to the effect that the respondent be
interdicted from:
1. participating in any conduct in contemplation or in furtherance of any
disciplinary action against the applicant.
2. carrying to completion it's disciplinary action against the applicant.
3. participating in any conduct in contemplation or in furtherance of it's
disciplinary action against the applicant.
4. making any disciplinary decision, verdicts, findings and or
sanction/sentence against the applicant in this matter.
2.The applicant also seeks costs against the respondent.
On the papers before me, the applicant had resigned and
subsequent to her resignation was informed that she had been suspended
and she was notified to attend a disciplinary inquiry. She was
suspended pending this inquiry.
3.Further notification received by the applicant from the respondent was a
notice to attend a formal inquiry on 31 January 2001, which is tomorrow.
It is this event, which the applicant by way of interdict seeks to
prevent from taking place.
4.Although the applicant has in her notice of motion set out the relief
sought in the form of an interim rule, the nature of the relief she
seeks is final.
5.Whereas it is so that a disciplinary inquiry should normally not be held
when an employee has resigned, this principle is only applicable in law
in certain circumstances which in my view do not apply for purposes of
the present matter.
6.In the present case the applicant has alleged that she left the employ of
the respondent because of the manner in which she was treated and could
no longer in circumstances, tolerate working for the respondent.
7.Firstly I have to examine whether the applicant has established a clear
right to entitle her to the relief she seeks.
8.In the circumstances of this case she does not have a clear right. Whereas
it would be perhaps undesirable in certain circumstances to have a
disciplinary inquiry or an inquiry in respect of someone who has
resigned previously from an employer's employ, the former employee does
not have a right to insist that the inquiry does not proceed in their
absence, simply because they are no longer employed.
9.This is so because, there are many other reasons why an employer would
choose to proceed with such an inquiry.
10.The purpose of the inquiry might have changed because the respondent
considered the fact that the applicant has resigned. Reference was made
to the notice to the applicant to attend “a formal inquiry” not a
disciplinary enquiry, as it was termed before. Be that as it may there
disciplinary enquiry, as it was termed before. Be that as it may there
is no guarantee that the applicant would be found guilty of fraud or any
of the other charges levelled against her.
11.I also considered whether the applicant had established that she has no
alternative remedy but to approach this court on an urgent basis to
interdict the inquiry from taking place.
12.By it's nature, an inquiry into fraud falls within the ambit of the
managerial prerogative. The fact that the employee had resigned does
not diminish that prerogative. Furthermore, if the applicant should be
found guilty and a dismissal is imposed, she may later attack the
dismissal, on the basis that she had resigned and that the dismissal was
of no effect, or she could attack any of the findings of the
disciplinary inquiry. Her remedy is not to prevent it from taking
place. The applicant has await the outcome of that inquiry, and should
need be, refer it to the appropriate forum which would the Commission
for Conciliation, Mediation and Arbitration.
13.It was also argued that the applicant made out a case that there was an
injury actually committed or reasonably apprehended on the part of the
applicant.
14.The inquiry has not yet taken place.
15.There is no indication of what the outcome would be and there is also no
indication that the respondent may or may not inform prospective
employers of the applicant's alleged conduct or of the disciplinary
inquiry or the outcome thereof as suggested.
16.It also appears that this application was designed rather to escape the
consequences of an inquiry than to prevent it from happening as would
appear form the reasons set out by the applicant.
17.In the circumstances the application must fail. Costs should follow the
result.
18.The application is dismissed with costs.
_________________
Revelas J
On behalf of Applicant: Adv. J Maphahlane instructed by
M M Baloyi Att.
On behalf of Respondent: Adv. Boda instructed by
Perrott, Van Niekerk & Woodhouse Inc.