1 SASLAW SEMINAR 26 October 2016 Advocate Robert Stelzner SCInterdicting disciplinary hearings - Solidarity vs. SABC
2 Section 158 of the LRA is in these terms:“158 Powers of Labour Court (1) The Labour Court may - (a) make any appropriate order, including - (i) the granting of urgent interim relief; (ii) the 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. … (b) order compliance with any provision of this Act; … (j) deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.”
3 (2011) 32 ILJ 112 (LAC); [2011] 1 BLLR 83 (LAC) at 99 para 5The LAC pronounced in Booysen v Minister of Safety & Security & others : '[T]he 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.' (2011) 32 ILJ 112 (LAC); [2011] 1 BLLR 83 (LAC) at 99 para 5
4 The circumstances in which the Labour Court will intervene,by way of interdict or declaratory order, in the unterminated proceedings of another body, such as a disciplinary inquiry, in res media, and urgently are therefore generally only where there are exceptional circumstances which indicate that a grave injustice would otherwise be perpetrated. By definition these cases should be few and far between.
5 One of those in which the Labour Court has come to the applicants’ assistance by way of declaratory order and interdict, in a terminated disciplinary inquiry, without expecting the employees to avail themselves of their unfair dismissal remedies under the LRA, and reinstated the employees in their employment as a matter of urgency was the case of Solidarity v SABC Case No: J1343 / 16 Solidarity, Foeta Krige, Suna Venter, Krivani Pillay and Jacques Steenkamp and South African Broadcasting Corporation, heard on 22 July 2016 by Lagrange J
6 The Court’s order in Solidarity v SABC was in part as follows:The respondent‘s dismissals of the second to fifth applicants are declared to have been unlawful and void ab initio. The second to fifth applicants are entitled to return to work at the SABC and to continue with their respective duties and responsibilities in accordance with their job descriptions. The respondent is interdicted from proceeding with the disciplinary proceedings initiated against the second to fifth applicants prior to their dismissal.
7 This was a case in which the Labour Court intervened and not only decided the unlawfulness of the dismissal but interdicted the employer from continuing with / recommencing a disciplinary inquiry which had not even been held or seen through to completion.
8 How did this occur? When the usual approach of the Labour Courts is; not to intervene in disciplinary hearings or interfere with disciplinary hearing outcomes when according to them adequate alternative remedies are readily available in the CCMA for unfair suspensions, unfair dismissals etc and in the Labour Court for automatically unfair dismissals and when the Labour Courts have often criticised the well heeled for utilising the Labour Court to their own perceived more expeditious ends in circumstances where others who cannot afford this are required to utilise the CCMA and Bargaining Council facilities / remedies
9 The dictum of Van Niekerk J in Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & others , dealing with intervention in uncompleted CCMA proceedings by way of interdict is sometimes quoted in this regard. That was a case in which the commissioner refused an application for legal representation and also refused a further application brought for his recusal. The following day the applicant's attorneys applied for the arbitration proceedings to stand down to enable the applicant to bring an urgent application to review the commissioner's rulings. The commissioner refused this application as well, and the applicant launched an urgent application in the Labour Court for an order restraining the commissioner from continuing with the arbitration pending the outcome of a review application to be filed by the applicant. (2009) 30 ILJ 2513 (LC)
10 The court noted that it has jurisdiction in terms of s 158(1)(g) of the LRA to review interlocutory rulings made by commissioners and was empowered generally by s 158(1)(a) (i) to grant urgent interim relief. It pointed out in criminal and civil proceedings intervention by way of interdict in uncompleted proceedings was exceptional In the court's view, there were at least two reasons why the limited basis for intervention in criminal and civil proceedings ought to extend to uncompleted arbitration proceedings conducted under the auspices of the CCMA.
11 The first was a policy related reason - for the court routinely to intervene in uncompleted arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the LRA. The second reason was that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, generally justice will be advanced rather than frustrated by permitting CCMA arbitration proceedings to run their course without intervention by the court.
12 On the merits of the application, the Court noted that the commissioner's primary obligation was to conduct the proceedings with the minimum of legal formality, providing guidance on the conduct of the proceedings to the parties and their representatives where appropriate. There was nothing in the papers before the court to sustain the argument that the matter was so complex that a failure to intervene at this stage by interdicting the proceedings would result in a grave injustice. Moreover, if the arbitration proceedings raised intricate legal questions these were all issues that the applicant would be entitled in due course to address if it later sought to review the commissioner's award and to subject his decisions and the reasons underlying them to scrutiny by the court. The court was accordingly satisfied that the applicant had failed to establish a prima facie right to the relief sought and dismissed the application with costs.
13 Relying on Wahlhaus & others v Additional Magistrate, Wynberg & another 1959 (3) SA 113 (A), and Ismail & others v Additional Magistrate Johannesburg & another 1963 (1) SA 1 (A) the court held that: In criminal and civil proceedings, intervention by way of interdict in uncompleted proceedings is exceptional - the exercise of this power has been held to be confined to those rare cases where a grave injustice might otherwise result or where justice might not by other means be attained. In general the court will hesitate to intervene, having regard to the effect on the continuity of the proceedings in the court below and to the fact that redress on review or appeal will ordinarily be available.
14 Similar considerations are applied to intervention in disciplinary proceedings, both in res media and prior to an employee having exhausted his or her other remedies
15 When are circumstances exceptional and what constitutes a grave injustice, noting that there is no closed list and courts are required to consider a variety of factors? In Olivier v Universiteit van Stellenbosch, the High Court intervened in the conduct of a disciplinary hearing, setting aside a decision not to postpone the hearing pending the provision of further particulars to the disciplinary charges. In Carolissen v City of Cape Town & others the Labour Court declined to do so, although the production of a forensic report on which the employer had relied for the charges was ordered. [2006] JOL (C) (2014) 35 ILJ 677 (LC)
16 The following can be ventured, one would wish to suggest even safely so :Where a person in truly extraordinary circumstances approaches the Labour Court on the basis that a disciplinary inquiry was, for instance, about to commence in clear breach of agreed disciplinary rules and processes or was being conducted in the hands of a biased or unqualified presiding officer, or was about to start in circumstances where the employee was clearly incapable of participating therein or on another factual basis so serious as to vitiate in law the inquiry, the Labour Court must in law exercise its powers to stop it.
17 In cases such as Mantzaris v University of Durban Westville [2000] 10 BLLR 1203 (LC) and Ndlovu v Transnet Limited [1997] 7 BLLR 887 (LC), the Labour Court indeed considered interdicting proceedings. It did not adopt the stance that it lacked the power to do so and exercised its power. Iin SAMWU v City of Cape Town [2008] 29 ILJ 1978 (LC), the Labour Court interdicted, on the particular facts of that matter, even an unterminated proceeding.
18 A suggestion that the Labour Court is not as generally amenable to, or as available for, urgent proceedings as the High Court is no answer to the question whether in law it has the requisite power. It clearly does and in more recent years has been prepared to exercise these in deserving cases.
19 In other cases it has not done so:The Labour Court therefore clearly has the requisite jurisdiction, and the requisite power to grant interdicts and declaratory orders relating to disciplinary inquiries. When it is prepared to exercise these powers is what needs to be distilled. It is generally accepted that the applicable test to apply in relation to an application for declaratory and interdictory relief pertaining to incomplete proceedings remains that laid down in Wahlhaus v Additional Magistrate, Johannesburg. 1959(3) SA 113 (A) at
20 Thirdly, there is the concern for the administration of justice itself, a strained system, seeking to serve a large population, cannot afford multiple interlocutory challenges of an inappropriate kind. But as against these, there is also the concern expressed in Wahlhaus at 120B that a court may, notwithstanding the considerations just enumerated, yet consider itself obliged to intervene “in rare cases where injustice might otherwise result or where justice might not by other means be attained.” After accepting Wahlhaus as laying down the binding test for intervention (in the terms just quoted), the learned acting judge in Olivier v Universiteit van Stellenbosch saw fit to paraphrase it thus:“….die vraag wat beantwoord moet word, is: is daar in al die omstandighede billik teenoor die applikant opgetree?” (p 16, para [21]). As that judgment suggests, several important postulates of legal policy compete. First there is the principle that matters should not be determined by higher courts on a piecemeal basis. Then there is the principle that courts do not deal with matters that may be academic, or become academic. A litigant arguably treated unfairly in a particular respect may yet ultimately succeed, or the point of unfairness which seems to loom so large at the time may ultimately have no bearing at all on the outcome of the case.
21 That is not the threshold set by Wahlhaus for intervention in an incomplete proceeding of another body. That unfairness has occurred is not the issue. The issue is that an irregularity has occurred (unfairness is just one manifestation) which, it is already apparent, is of a kind and a degree calculated to give rise to injustice. And in that regard, the court must consider whether the injustice is such that the affected party might not otherwise by other means attain justice.
22 It can be noted that this is not the only area of law which seeks to differentiate between the potentially fatal or irremediable and that which is irregular, but is not to be treated as vitiating. This is evident in criminal law, as regards irregularities in proceedings of lower courts (S v Moodie 1962 (4) SA 587 (A) at 597, and S v Naidoo 1962 (4) SA 348 (A) at 354), And in administrative law, as regards the willingness of courts to permit collateral challenge only where the irregularity clearly vitiates the decision itself (Coalcor (Cape) (Pty) Ltd v Boiler Efficiency Services CC 1990 (4) SA 349 (C) at 355E-356B).
23 Should the applicants’ argument in Solidarity not have failed in this respect,their complaints did not establish that injustice stood to result, in the sense contemplated, nor that justice might not by other means have been attained, also in the sense contemplated by Wahlhaus?. Was a case was made out relating to a fatal defect in the conduct of the proceedings which might have nullified further / resumed disciplinary proceedings ex tunc?
24 The applicants in Solidarity alleged that they were treated “unfairly” in a number of respects.But was this unfairness of a Wahlhaus kind? And even if there was cumulative unfairness does that mean that the Wahlhaus test was met? Could the applicants not as readily have been reinstated by the CCMA with retrospective effect as by the Court. And if the charges had no merit then it was for the employer to decide not to pursue them or for the disciplinary enquiry to come to that conclusion. If a disciplinary inquiry were to have continued / been reconvened (before an unbiased chairperson), the employer could have made out its case,
25 the applicants would have been permitted to cross-examine those witnesses who testified,they would have been able to testify and to present evidence at that enquiry. Was it guaranteed that the process was destined to be fatally unfair in the future, simply because no hearing had been held prior to their dismissal? And if the employees were to have been dismissed after a further hearing in circumstances which were unfair, did the employees not have their further remedies?
26 It would not have been apparent to the Labour Court, it is submitted, at the stage of hearing the matter that a renewed disciplinary hearing was guaranteed to be unfair Simply because the SABC had conducted themselves in the past in a manner prejudicial to the applicants did that mean the same would happen once they were reinstated?
27 Simply because the SABC :dismissed them without a hearing in the face of a pending court application in respect of the unlawful suspension of the Applicants? was effectively guilty of constructive / pre-emptive contempt of the pending application? had conceded in High Court and pending constitutional court applications that its policy was unlawful (as had also been determined by ICASA) yet still wished to pursue disciplinary action against the applicants and sought to dismiss the employees for criticising its admittedly unlawful circumstances?
28 In appears these circumstances led the Court to conclude the employer was acting in bad faith and the public and constitutional issues made the circumstances indeed exceptional warranting intervention.
29 What made the circumstances in Solidarity v SABC therefore exceptionalWhat made the circumstances in Solidarity v SABC therefore exceptional? The following did not. The employer had a disciplinary code and procedure ; The employer dismissed the employees in breach of its own code (by not giving them any hearing) ; The employer dismissed the employees for what was an unlawful reason (the employees had criticized a policy of the employer which ICASA had determined (and the employer had conceded in other court proceedings) to be invalid) ; This resulted in the dismissal having been invalid / null and void at common law ; The applicants‘ constitutional right to freedom of expression was infringed ;
30 What made the circumstances in Solidarity v SABC therefore exceptional What made the circumstances in Solidarity v SABC therefore exceptional? The following probably did. Important public interest issues were at stake The employees worked as journalists with the public broadcaster in the public interest Local government elections were imminent There were grave issues of public importance: The SABC is a public institution Bound by certain constitutional values. The public has an interest in how it is run The public had a right to know if the SABC was implementing important constitutional principles which apply to it. Unfettered free and fair broadcasting at the time of local elections was required The employees were an integral part thereof
31 What was the grave injustice which would otherwise be perpetrated?Damages for wrongful dismissal was not an appropriate alternative remedy ? Given that the claim was one of unlawful dismissal (as opposed to unfair dismissal) there was no alternative remedy to be obtained before the CCMA by way of arbitration nor in the Labour Court for some automatic unfair dismissal ? These issues it is submitted one their own may not have carried the day for the applicants. The exceptional circumstances referred to above probably did.
32 Thank you
33 SAVE THE DATE SASLAW YEAR END & PRO BONO AWARDSDate: 23 November 2016 Time: 17: :00 Venue: The Labour Court – Loop Street, Cape Town