IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
Reportable
CASE NO: D242/03
Date heard:
2003/04/15
Date delivered: 2003/04/16
In the matter between:
PRAKASH BISSOON Applicant
and
LEVER PONDS (PTY) LIMITED First Respondent
GAVIN WARD N.O. Second Respondent
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY
ON 16 APRIL 2003
ON BEHALF OF APPLICANT: ADVOCATE
TOBIAS
INSTRUCTED BY : JOHAN OBERHOLZER AND
COMPANY
ON BEHALF OF RESPONDENTS: ADVOCATE VAN
NIEKERK
INSTRUCTED BY : DENEYS REITZ INC.
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT
PILLAY J
[1] This is an urgent application in which an order is sought,
inter alia , interdicting the respondent from holding a
disciplinary enquiry against the applicant unless the
applicant is allowed legal representation and provided with
further particulars; and further directing the second
respondent to recuse himself. Other relief sought are either
ancillary or were not pursued in argument.
[2] An interdict is an extraordinary remedy which is allowed in
exceptional circumstances. The Labour Court has been slow
to grant applications interdicting employers from holding
disciplinary enquiries primarily because employees who are
aggrieved by the outcome of disciplinary action have
recourse to other remedies via mediation and arbitration. To
interdict an enquiry before the employer has determined the
guilt or innocence of the employee is premature. ( South
African Commercial Catering and Allied Workers Union &
Others v Truworths & Others (1999) 20 ILJ 639 (LC) at 641 H -
J per SEADY AJ. Also Police and Prison Civil Rights Union v
Minister of Correctional Services & Others (1999) 20 ILJ 2416
(LC) per JALI J, at paragraph 53 and the cases cited therein;
Ndlovu v Transnet Limited trading as Portnet (1997) 18
ILJ 1031 (LC) per LANDMAN J.)
[3] Whether an employer gives an employee a hearing that is
substantively and procedurally fair is best determined after
an enquiry is held and a decision is made about the guilt or
innocence of the employee and the penalty, if any, to be
imposed. To determine the fairness of an inquiry in a
piecemeal fashion by means of urgent application must be
discouraged for, amongst other things, it thwarts the
objective of the Labour Relations Act No 66 of 1995 (the
"LRA"), to resolve disputes expeditiously. Furthermore, it is
an interference in the execution by the employer of its
statutory and contractual duty to conduct a fair enquiry.
[4] The Court will intervene in a disciplinary enquiry if a grave
injustice might otherwise result. ( Police and Prison Civil
Rights Union case, at paragraph 55. Moropane v Gilbeys
Distillers and Vintners (Pty) Limited & Another (1997) 10
BLLR 1320 (LC); SACCAWU v Truworths (supra) and
Mantzaris v University of Durban-Westville & Others (2000)
21 ILJ 1818 (LC).)
[5] The first ground on which this application is launched is that
the applicant, it is submitted, does not have "the fullest and
fairest" information about the case he has to meet. For what
constitutes full and fair information, reliance was placed on
Van Wyk v Director of Education & Another 1974 (1) SA 396
(N) at 400 H - 401 A per Milne J; Van Rooyen v Dutch
Reformed Church, Utrecht, 1915 NPD 323 at 331; and
Kimmelman v Amalgamated Society of Woodworkers of
South Africa 1941 WLD 212 at 219.
[6] The charges against the applicant are:
"Gross misconduct, in that over the period May 2000 to
February 2001:
(1) You individually or in collusion with
Mr Vanker of Packaging and Recycling City
CC misappropriated monies due to the
company in respect of the sale of scrap
metals, causing the company to suffer a loss
of approximately R400, 000. 00 (Four
hundred thousand Rand).
(2) You wrongfully and unlawfully, alternatively
negligently, and in dereliction of your duties,
concluded an agreement with Packaging and
Recycling City CC for the removal and sale of
waste material without ensuring that proper
financial controls and procedures were in
place and being followed."
[7] It must be noted that all three cases relied upon by the
applicant in support of his request for further particulars
predate the LRA, its Code of Good Practice: Dismissal in
schedule 8 and the Constitution of the Republic of South
Africa Act No 108 of 1996 by at least 19 years.
[8] The degree of particularity that is required for a disciplinary
inquiry is suggested in section 4(1) of the Code which
provides:
“The employer should notify the employee
of the allegations using a form and
language that the employee can reasonably
understand.”
[9] In the Police and Prison Civil Rights case (supra) at paragraph
33, JALI J also considered the judgment of MILNE J in Van Wyk
(supra), and agreed that the charges should be sufficient to
inform the employee of the case it is expected to meet. (See
also Ndlovu (supra) and Zeelie v Price Forbes (Northern
Province) (1) (2001) 22 ILJ 2053 (LC) per JALI J.)
[10] The charges in this case are in a form and language that the
applicant ought reasonably to understand. It provides
sufficient particularity about the offences. It informs the
applicant what he is alleged to have done and the period
over which he is alleged to have committed the offences.
Such particularity is sufficient to put the applicant to his
defence. (Zeelie (supra).)
[11] Even if the charges were not sufficiently detailed, the
applicant was sent a copy of a letter dated 12 June 2001
from the respondent to the attorneys for Packaging and
Recylcling City CC in which the basis and computation of the
alleged loss of R400 000.00 was given. His evidence that he
did not receive the letter is irrelevant to the question as to
whether he now has sufficient particulars to present his
defence. He would certainly have become aware of its
contents on receiving the respondents’ answering affidavits
to which the letter is attached.
[12] Furthermore, many of the questions asked go to the
procedure that the respondents might follow during the
enquiry. If the procedure adopted does not meet the
required standard of fairness, the applicant has a remedy
through mediation and arbitration.
[13] The applicant and his attorney obviously understand the
charges sufficiently if they conclude, as they do, that the
matter is complex.
[14] In the circumstances, I hold that there is no duty on the
employer to supply the further particulars before the
disciplinary enquiry.
[15] The second ground is that the applicant perceives the second
respondent to be biased. ( Moch v Nedtravel (Pty) Limited
trading as American Express Travel Service 1996 (3) SA 1
(AD) and BTR Industries South Africa (Pty) Limited & Others
v Metal and Allied Workers’ Union & Another 1992 (3) SA 673
(A) at 693 I - J).
[16] The basis for this perception is that the second respondent
allegedly informed the applicant and his representatives that
he intended to take instructions from management after
hearing legal argument about, inter alia , the further
particulars and legal representation. Although the second
respondent cannot recall using the word "instructions", and
considered it unlikely that he in fact did so, he nevertheless
concedes that he undertook to consult with senior
management. What he in fact did, he testified, was to
consult with an attorney and obtain advice on the right to
legal representation. He denies taking legal instruction from
anyone and discussing the matter with anyone from
management.
[17] The applicant has no knowledge of what the second
respondent actually did and therefore cannot dispute his
evidence. The advice the second respondent got was to the
effect that there is no absolute right to legal representation
at disciplinary enquiries. He then applied his discretion. His
legal adviser was not involved in the exercise of that
discretion.
[18] The submission that the second respondent was influenced
by management to refuse the request for legal
representation is speculative and not born out by the facts.
The second respondent’s view was that the enquiry would
not be required to consider any complex legal issues. This
reason for refusing the request for legal representation was
justiafiable, consistent with the limited information before
him (discussed further below) and with approach in the
recent decision of the Supreme Court of Appeal in Hamata &
Another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee & Others (2002) 23 ILJ 1531 (SCA)).
His approach therefore does not manifest bias.
[19] Given the second respondent’s evidence, his statement that
he would consult with management is therefore not on its own
sufficient to invoke a reasonable perception of bias.
[20] Furthermore, chairpersons of disciplinary enquiries who are
drawn from the management of the employer may not be
sufficiently knowledgeable about labour law and industrial relations
practice. Having heard submissions from the applicant’s lawyers
about legal representation, the second respondent quite properly
got advice about the law to enable him to making a ruling on a
matter about which he was not adequately qualified. A mistake
about the law or procedure to be applied at a disciplinary enquiry
can be inconvenient and costly for both parties, and should be
avoided, if necessary, by taking expert advice.
[21] Managers who chair enquiries are not neutral or oblivious to
the employer's interests. They are not judicial officers and they
cannot reasonably be expected to exercise the same degree of
judicial discipline and independence. Despite this, industrial
relations practice permits managers to chair enquiries. Hence the
law provides mediation and adjudication to correct any unfairness.
[22] The second respondent falls outside of line management and
is, to that extent, more independent than a line manager.
This suggests to me that the first respondent is attempting to
provide the applicant with an independent chairperson. It
would be premature at this stage to hold that the second
respondent will not be impartial.
[23] The order for the recusal of the second respondent is refused.
[24] The third ground on which the interdict is sought is the
refusal of legal representation for the applicant during the
enquiry.
[25] The parties are ad idem that there is no absolute bar to legal
representation at a disciplinary enquiry. Nor is there an
automatic right to such representation. ( Hamata, supra.) In
complex and serious cases it should be allowed. ( Police and
Prison Civil Rights Union (supra).)
[26] It is common cause that this case is serious. But, in my view,
it is no more so than any other potential dismissal case. The
applicant advanced no reasons to the second respondent
about the complexity of the matter. He ought to have placed
such information before the second respondent that would
have persuaded the latter that the matter was complex. He
cannot be heard to complain now that the second
respondent had no other information but the charge sheet on
which to decide the complexity of the matter.
[27] In reply, the applicant contends that the matter is complex
because his attorney, having consulted with him, is of that
opinion. The attorney refuses to disclose the information on
which he bases this opinion because it is confidential and
privileged. That is a prerogative of the applicant. But, that
stance does not enable the applicant to discharge the onus
of proving the complexity of the matter. Nor does it move
the Court to exercise its discretion in his favour.
[28] The applicant relies on an opinion of the attorney who has
not been qualified as an expert before this Court. Like the
second respondent, I am also left with not a shred of
evidence as to why the matter is complex. I have no reason
to prefer the opinion of the applicant's attorney to that of the
respondents. The charges on their own and as amplified by
the letter dated 12 June 2001, give no indication that the
matter is complex. The applicant has not taken the Court
into its confidence to present a version. If his defence is to
remain a bare denial of all the allegations then the matter
can hardly be complex for the applicant.
[29] Many breaches of workplace rules could result in criminal
and civil proceedings. That does not per se make the matter
more or less complicated.
[30] It was submitted that on the first respondent's version alone
the alternative charge was complex as it related to the
applicant's performance.
[31] When it compared the charges against the applicant with a
poor performance dispute, the first respondent was obviously
referring to the difficulties inherent in assessing the quality of
performance. The alternative charge, I agree with Mr van Niekerk
for the respondents, is not about the applicant's quality of
performance but misconduct arising from his failure to comply with
his job description. The latter is more easily established by
objective facts, whereas the former may involve a degree of
subjectivity.
[32] In my view therefore, the matter is not so complex as to
warrant legal representation at the disciplinary inquiry.
[33] The disciplinary enquiry has a specific, limited purpose. It is
the execution by an employer of its statutory and contractual
obligation of determining the guilt or innocence of an employee
through a fair procedure. The respondents should be given an
opportunity to carry out this obligation first before their actions are
adjudicated.
[34] In all the circumstances, the application is dismissed with
costs.
________________
PILLAY, J