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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no:  J1063/2016

Not Reportable

THABANG PIUS LEBAKA...........................................................................................First Applicant

BATHABILE MATHIBA............................................................................................Second Applicant

And

ROAD TRAFFIC MANAGEMENT CORPORATION....................................................Respondent

Heard: 07 June 2016

Delivered: 10 June 2016

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The Applicants approached this court on an urgent basis to seek an order in the following terms;

“2. Pending the finalisation of a substantive application to be instituted by the above applicants within twenty (20 days) from the date of granting of this order, for a declaratory order:

2.1  The Respondent is interdicted from amending the charges against the Applicants in the disciplinary proceedings.

2.2  The Respondent is interdicted and restrained from proceeding with, conducting and/or finalising the said disciplinary hearing based on the amended charges against the Applicants; and

2.3  The suspension with pay of the Applicants is maintained”

Background material:

[2] The relevant background and common cause facts are as follows;

2.1       The First and Second Applicants (The Applicants) were employed at varying times in terms of fixed term contracts. On 17 November 2015, the Applicants were placed on precautionary suspension with full pay after they were afforded an opportunity to state they reasons they should not be suspended from work.

2.2       On 3 February 2016, the Applicants were issued with notices to attend a disciplinary enquiry scheduled for 23 February 2016 to answer to allegations of “Fraud”, alternatively “Gross negligence” and or “Bringing the name of the corporation into disrepute”. The Applicants’ contention is that they received these notices on 15 February 2016.

2.3       The enquiry scheduled for 23 February 2016 was postponed. Subsequent thereto, there was communication between the Respondent and the Applicants and/or their attorneys of record surrounding a settlement of the matter and in regards to further particulars in respect of the charges preferred against the Applicants. The negotiations yielded no results and on 12 May 2016, the Applicants were issued with fresh notices to attend a disciplinary enquiry scheduled for 24 – 27 May 2016. 

2.4       The allegations the Applicants were required to answer to in terms of the new notice included two counts of “Gross negligence”. According to the Applicants, these charges appeared to be based on an investigation that was conducted by the Directorate for Priority Crimes of the SAPS (The Hawks), and related to criminal allegations emanating from the theft by electronic funds transfer, of an amount of over R8 million from the Respondent’s bank accounts.

2.5       The Applicants’ contention is that the amended charges ‘smacks of convolution of unfounded and trumped-up charges against them and will, if not stopped by the Court, taint the planned disciplinary hearings’. They further contended that the result would more than likely be an unfair procedure and substantively unfair process, moreso since there was never a thorough investigation conducted by the Respondent.

2.6       The Respondent’s contention was that after the postponement of the disciplinary hearings and during communications with the Applicants, it discovered new information which had a direct influence on the proceedings. This had triggered the amendment of the allegations/charges against the Applicants. Accordingly, the Applicants were to avail themselves for the hearing since further documentation in respect of the new charges was made available to them. It is alleged that the Applicants failed to collect these documents.

Evaluation:

[3] This Court has discretionary powers in terms of section 158(1) (a) (v) of the LRA to make declaratory orders[1]. The discretionary power of the court in this regard may however not be exercised in favour of the applicants where there is no basis to do so. The Applicants in this case as shall be illustrated below face insurmountable hurdles. It needs be stated at the outset that this application was clearly ill-conceived, and should have never seen its day in court.

Urgency:

[4] The first hurdle for the Applicants was to demonstrate to the court that the application deserves its urgent attention. The basis for urgency as can be gleaned from the founding affidavit was that the amended charges were delivered to them on 18 May 2016. Since then, their attorney of record informed the Respondent of their objections thereto but were ignored. Secondly, it was contended that the urgency arose out of the fact that the disciplinary hearing based on the amended charges had been scheduled for 23 to 27 May 2016 and later changed to 30 May 2016 to 2 June 2016.

[5] Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court provide that;

(1) ………………

(2) The affidavit in support of the application must also contain-

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

[6] This Court in Jiba v Minister: Department of Justice and Constitutional Development and Others [2] held that;

“Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and the degree to which the ordinary applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking deviation from the rules”.

[7] It therefore follows that where the court is not satisfied from the founding affidavit that sufficient grounds exists for the application to be treated as urgent, it ought to be struck off from the roll on that ground alone[3]. The facts and circumstances of this case clearly indicate that the urgency alleged is self-created. On the Applicant’s own version[4], they were notified of the new charges on 12 May 2016 (and not 18^th). They had until 30 May 2016 to prepare for the hearing, even if they now had to answer to fresh allegations. The Respondent’s allegation that documentation in respect of the new charges was made available to them was not disputed, and the reasons that they had proffered for not wishing to attend the hearing are clearly lacking in substance as shall further be illustrated below.

[8] The Applicants nevertheless approached this court with this application on 30 May 2016, on the date that the disciplinary hearing was scheduled to commence. There is no explanation as to the reason they had waited for a period of at least 18 days, and in particular, a just prior to the commencement of the hearing before they approached the court. Not only did the Applicants approach the Court on 30 May 2016, they also chose the date of the hearing of this application, which is some seven days later after the hearing was scheduled to commence. The Applicants’ contention that they had through their attorneys of record objected to the new charges in writing and were ignored is a mere red herring. No such correspondence was attached to the founding affidavit, and it is thus not known when it was sent to the Respondent. Even if there was any merit in this contention, there is no indication as to exactly what the Applicants did for a period of 18 days prior to approaching the court, to show that they acted with the necessary haste and urgency that they contend their matter deserves.

[9] The latitude extended to parties to dispense with the rules of the court in circumstances of urgency is not available to parties, who are dilatory to the point where their very inactivity is the cause of the harm on which they rely on to seek relief[5]. As correctly pointed out on behalf of the Respondent, the facts and circumstances of this case are not dissimilar to those dealt with by this court in Golding v HCI Managerial Services (Pty) Ltd & others[6]. The Applicants have not adequately and in detail, set out in the founding affidavit, the reasons the matter before the court should be treated as urgent. The fact that they waited until 30 May 2016 when the disciplinary hearing was to commence, and even placed the matter on the roll some further seven days later clearly demonstrates that the urgency alleged is self-created.

[10] In the light of the above, the application ought to be struck off the roll. Striking the matter off the roll however entitles the Applicants to approach the court in the normal course, and it is my view that this court should not be burdened with this matter any further. For these reasons, I shall deal with the merits of the application and other considerations as raised by the Respondent.

Jurisdiction:

[11] This Court will decline to give a declaratory order where the determination of the underlying dispute is one that falls outside its jurisdiction[7]. Jurisdiction is to be determined on the pleadings and not the substantive merits of the case[8]. The Applicants relied on section 23 (1) (incorrectly referred to as section 27) of the Constitution of the Republic of South Africa, and the LRA in contending that they have entrenched rights to fair labour practices.

[12] The Applicants wish to assert their right to fair labour practices, which they had submitted was associated to their ancillary right to have a disciplinary hearing that is procedurally and substantively fair. However, even if it were possible for the applicants to bring the Respondent's conduct in instituting the disciplinary enquiry with the amended charges within the ambit of Sections 185,186 (2) and/or 188 of the LRA, this Court would have no jurisdiction to entertain any dispute arising out of those provisions. This is so in that the legislator has provided exclusive jurisdiction to deal with such disputes to the CCMA or any relevant bargaining council. Furthermore, the Applicants are not entitled to bypass the provisions of the LRA and rely directly on the provisions of the Constitution without first challenging the legislation in question[9].

Interference with uncompleted disciplinary processes:

[13] It is accepted that this Court may in certain instances, interdict or intervene in uncompleted disciplinary hearings[10]. The Labour Appeal Court in this regard held that;  

“To answer the question that is before the court, 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.”[11]

[14] An example of where this court had intervened, and which might be remotely apposite in these proceedings is where an employer abuses its powers, and institutes disciplinary proceedings against an employee in bad faith or for ulterior motives[12]. It was not the case of the Applicants that the Respondent wished to pursue the new charges based on some ulterior motive or bad faith. Their contention that the charges are trumped up or that no proper investigations were conducted prior to the charges being preferred can never be a sustainable argument that there is some ulterior motive or bad faith. It is trite that the onus of proving misconduct is on the employer. Even if the charges are trumped up, it is still for the employer to prove the misconduct in question. If the employer in this case had not properly investigated the matter prior to proceedings with the charges as alleged, that in itself cannot be a basis for an allegation of unfairness, in that ultimately the charges have to be proven. Thus as correctly pointed out on behalf of the Respondent, the Applicants have not set out any exceptional circumstances to justify the court’s intervention in the disciplinary enquiry.

[15] It was further common cause that the enquiry as scheduled for 30 May 2016 was postponed in the light of this application before the court. A further issue raised in seeking the court’s intervention was that the entire disciplinary process was unlawful as it was held in breach of the Respondent’s Disciplinary Code and Procedure. In this regard, the argument was that the Applicants were placed on precautionary suspension on 17 November 2015. In terms of the Respondent’s Disciplinary Code and Procedure, and in particular its clause 9.2 (c), the Respondent was required to hold a disciplinary enquiry within a month or 60 days depending on the complexity of the matter and length of investigations. Thus to the extent that the enquiries were first scheduled for 23 February 2016, it was argued that the period to hold such enquiries had prescribed and in effect, the Respondent could not lawfully proceed with them in the absence of further postponements by the chairperson (within the one month or 60 days period).

[16] A further argument in regards to the issue of the lawfulness of the disciplinary proceedings was that at one of the enquiries, an objection was raised on behalf of the Applicants that the Respondent had acted in breach of its own disciplinary procedures, which objection was overruled by the chairperson. To this end, it was contended that the Applicants had no alternative remedy in that they would be subjected to an unlawful disciplinary process if the court does not intervene.

[17] The disciplinary code and procedure referred to in this case is not in the nature of a collective agreement. It is nevertheless accepted that it formed part of the Applicants’ contract of employment. There can be no doubt that clause 9 of the Respondent’s Disciplinary Code and procedure contains strict guidelines about time periods for holding disciplinary hearings, especially in respect of those employees on precautionary suspensions. Whilst employers are generally required to follow time periods stipulated, the consequences of a failure to do so was addressed by the Labour Appeal Court in Highveld District Council v CCMA & Others,[13] in the following terms;

“Where the parties to a collective agreement or an employment contract agree to a procedure to be followed in disciplinary proceedings, the fact of their agreement will go a long way towards proving that the procedure is fair as contemplated in Section 188 (1) (b) of the Act. The mere fact that a procedure is an agreed one does not however make it fair. By the same token, the fact that an agreed procedure is not followed does not in itself mean that the procedure actually followed was unfair…..When deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinize the procedure actually followed. It must decide whether in all the circumstances the procedure was fair.”

[18] The Applicants were placed on precautionary suspension on 17 November 2015. The one-month or alternatively, 60 days expired on or about 17 January 2016. The Applicants were content to remain on paid suspension and had not raised any issue in regards to breach of the disciplinary code until the disciplinary enquiry was due to commence. The fact that they further seek a declaratory order to have their suspension with pay maintained indefinitely speaks volumes of their bona fides in suddenly challenging the procedural fairness of their disciplinary enquiry. Inasmuch as they complained about being placed on prolonged suspension, they are nevertheless content to continue being on suspension.

[19] In my view, the Applicants cannot rely on a strict interpretation of the time periods contained in a disciplinary code to claim that the disciplinary hearing to be held thereafter would be procedurally unfair, moreso since they were content to remain on paid suspension for periods longer than those stipulated in the code. I am further of the view that to the extent that the Applicants maintain that the enquiries would be unfair, their remedy lies either with the CCMA or a Bargaining Council, but only after the conclusion of the hearings.

[20] A further complaint raised by the Applicants that the disciplinary hearings would be unlawful on the basis that the Respondent has since amended the charges against them is equally without merit. It was common cause that the hearings of 23 February 2016 were postponed without the Applicants having entered a plea on those charges. In essence, that hearing never commenced at all. The Respondent’s contention was that after 23 February 2016, new evidence came to light necessitating the amendment to the charges. The Respondent also relied on its reserved rights to amend the charge sheet should the need do so arise as stipulated in the initial notices.

[21] There is nothing in law or fairness that prevents an employer from amending or adding to the charges of misconduct prior to a disciplinary enquiry commencing or even before the enquiry is finalised[14]. The only proviso is that to the extent that the charges have been amended or an addition made, the employee is entitled to sufficient notice of these changes, sufficient time to prepare, and any further documentation to be relied upon by the employer in pursuing those charges. In this case, the Applicants were notified of the amended charges on 12 May 2016. The enquiry did not take place on 30 May 2016 despite sufficient time being afforded to them to prepare for the hearing. There can therefore no basis for them to argue that they were in any manner prejudiced by the amendment to the charges.

[22] To the extent that they are of the firm belief that the charges are trumped up, or that the allegations were not properly investigated, that cannot be a basis for unlawfulness, and they should thus face that enquiry. To the extent that these amended charges may be proven and are considered serious enough to call for a dismissal, the Applicants ultimately have an adequate alternative remedy. Like all other ordinary employees, most of whom have even lesser means, they should wait for their turn in the proverbial litigation queue in the event of their dismissal.

[23] To summarise then, the applicants have not persuaded the court that their application ought to be accorded urgency. There is no basis for any conclusion to be reached that there are exceptional circumstances necessitating the intervention of this court in the impending disciplinary enquiry against them. To the extent that the disciplinary enquiry might result in their dismissal, they have a suitable alternative remedy, and there is no basis to conclude that they would suffer irreparable harm if the application is not granted.

Costs:

[24] It has already been indicated elsewhere in this judgment that this application was ill conceived. Having had regard to the provisions of section 162 of the LRA, it is my view that considerations of law and fairness dictate that the application should be dismissed with costs.

Order:

i. The Applicants’ application is dismissed with costs, including costs of one counsel.

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicants: Adv. ME Mathaphuna

Instructed by: Ndobela and Lamola

On behalf of the Respondent: Adv. RG Beaton SC, assisted by Adv. P Verveen.

Instructed by: Selepe Attorneys

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