The Labour Court seldom intervenes in disciplinary hearings

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The Labour Appeal Court made it quite clear in the matter of Booysen v Minister of Safety and Security and Others (2011) that it would only intervene in disciplinary hearings where exceptional circumstances exist which may result in a grave injustice.

Despite such clarity, applicants frequently turn to the Labour Court seeking an urgent interdict to stop the hearing from proceeding.

The Labour Court expressed its displeasure in this regard in the matter of Margaret Mimi Minya and The SAPO (Case no P 99/20 handed down on 22 September 2020) per Tlhotlhalemaje, J. when the applicant sought to prevent the start of a disciplinary hearing against her. She turned to the court, but had failed to inform her employer that she had obtained a second medical certificate in support of further sick leave, but had not submitted it.

The court held that its powers in terms of the LRA “do not include the micromanagement of workplace discipline or any dispute arising out of the workplace”, and confirmed that it was the employer’s “prerogative to maintain discipline”.

It restated what Van Niekerk J said in Lieutenant-General Adeline Lungiswa Shezi v South African Police Service & others (2020):

“There is a misconception that the court has jurisdiction over all disputes that arise in the context of an employment relationship. It does not.”

The court held that:

  • “The issuing of a notice to attend a disciplinary hearing cannot by any stretch of the imagination trigger urgency, particularly in circumstances where a similar notice had been issued in the past”;
  • Complaints relating to alleged procedural unfairness did not constitute “exceptional circumstances for the purposes of jurisdiction” as the applicant could have raised these issues before the chairperson by attending the hearing;
  • “It is not for this Court to intervene in disciplinary proceedings that have not even started in earnest, and dictate to employers and/or chairpersons of disciplinary enquiries”;
  • A medical certificate does not constitute proof that someone is indisposed. The court held that the “mere production of a copy of a medical certificate as the applicant had done in support of the relief she seeks, cannot serve as proof of an individual being indisposed. That copy still has to be verified, authenticated and attested to by the person whose evidence it purports to be”;
  • The application stood to be dismissed because the applicant had failed to provide a legal basis for it to assume jurisdiction in her founding affidavit.

The LC not only dismissed the application, but also imposed a punitive costs order on the applicant.