Letsholonyane v Department of Human Settlements and Another (J2338/13) [2013] ZALCJHB 312 (1 November 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO J2338/13

In the matter between:

NELLY LETSHOLONYANE..................................................................APPLICANT

and

DEPARTMENT: HUMAN SETTLEMENTS...........................FIRST RESPONDENT

DEBORAH HARTUNG....................................................SECOND RESPONDENT

Heard: 16 October 2013

Judgment delivered: 17 October 2013

Judgment edited: 1 November 2013

EX-TEMPORE JUDGMENT

VAN NIEKERK J

[1] This is matter number J338/2013, an urgent application brought last night in terms of which the applicant seeks interim relief in respect of a disciplinary inquiry which is scheduled to recommence later this morning.

[2] The material facts are not in dispute. The applicant is employed by the first respondent in the capacity of a deputy director general. During the course of June 2013 she was advised of the first respondent's intention to suspend her. A dispute in regard to the suspension was referred to the Bargaining Council on 01 July 2013.

[3] On 15 July 2013 the applicant's attorney wrote to the first respondent requesting a copy of the charge sheet, a list of witnesses, written statements and the like in respect of a pending disciplinary hearing.

[4] On 08 August the applicant was furnished with a notice to attend a disciplinary hearing, which at that stage was scheduled for 21 and 22 August.

[5] The hearing did not proceed, it would appear on account of the applicant's study commitments. A representative of the PSA appeared on behalf of the applicant on 21 August, and the matter was then postponed to 03 October 2013.

[6] On that date the applicant was unable to attend the hearing on account of illness and the matter was again postponed. The Chairperson of the inquiry, the second respondent in these proceedings, issued certain directives in order to expedite the hearing.

[7] The second respondent, after having invited, amongst other things, an application for legal representation, considered the application and on 14 October 2013 made a ruling in terms of which the application for legal representation during the disciplinary hearing was denied.

[8] The applicant further brought an application for the recusal of the second respondent on the basis that she had been appointed to Chair disciplinary hearings in respect of certain other employees of the first respondent in circumstances where it was claimed that the matters giving rise to the disciplinary charges were the same or similar to those applicable in the applicant's case. That application too was refused by the second respondent.

[9] The applicant seeks, in effect what is an interim order, as I have indicated, interdicting the commencement of the inquiry pending the outcome of certain proceedings that she intends to institute. These include applications to review and set aside the rulings made by the second respondent in relation to legal representation and recusal, and thirdly a referral of a dispute in terms of Section 16 of the Labour Relations Act, to the Bargaining Council. The basis of that dispute is what is contended to be a refusal or failure by the first respondent to make available to the applicant certain information and/or further particulars that have been requested.

[10] The three issues pertinently raised on the papers in this matter, to summarise, are then the refusal by the second respondent to grant the applicant the right to legal representation at the hearing; secondly, the refusal by the first respondent to respond fully to the applicant's request for further particulars, and in this regard especially to furnish what is referred to as an investigation report; thirdly, there is the refusal by the second respondent to recuse herself on the grounds that I have outlined.

[11] The relevant legal principles were restated recently in Trustees National Bio Formatics Network Trust v Jacobson, in that matter an employee sought to interdict the continuation of arbitration proceedings pending the outcome of an application for review. While that case dealt specifically with intervention by this court in uncompleted arbitration proceedings, the principles outlined apply with equal force to uncompleted domestic disciplinary hearings.

[12] In that case the court affirmed that in general it would hesitate to intervene, having regard to the effect on the continuity of

proceedings and the fact that redress in one or other form would ordinarily be available in due course.

[13] The court there expressed the view that it would intervene only in exceptional cases where a grave injustice might otherwise result, or where justice might not by other means

[14] Similarly in that regard again in relation to arbitration proceedings, but with application to the present circumstances the court recorded that the limitation on the right to legal representation is an integral element of the system of expeditious and informal dispute resolution established by the Act.

[15] It seems to me that if those are the principles that apply to uncompleted arbitration proceedings, as I have indicated they apply with equal force to uncompleted disciplinary hearings.The purpose underlying the statute is that disciplinary hearings be held expeditiously and informally.The opportunity to raise challenges such as those which are raised on these papers are properly, in later arbitration proceedings where the outcome of the disciplinary hearing, be it in the form of a dismissal or some lesser disciplinary penalty, may be challenged.

[16] This Court has observed before that the criminal justice model is not applicable to domestic disciplinary proceedings, and that the opportunity to challenge the employer and to put the employer to the proof of substantive and procedural fairness is a matter for an arbitrator to determine.

[17] This Court should be reluctant, since it exercises a supervisory role over arbitration proceedings, to become involved in the first instance by granting interlocutory orders such as those sought.

[18] Turning to the three issues that are raised on the papers before the Court, in regard to legal representation the parties do not dispute that there is no right to legal representation in terms of the applicable disciplinary code and procedure the applicant is entitled to be represented by a union representative or a fellow employee.

[19] The ruling made by the second respondent is one that was made after an invitation for submissions by the parties, both parties made

submissions. The ruling, in my view, is one that is reasoned and the outcome of which cannot be said, on the face of it, to fall outside of the band of decisions to which reasonable people could come in the circumstances.

[20] While one might appreciate the applicant's unhappiness with the outcome of that application, this Court, even at the review stage, has no right to interfere or the decision on the basis of its correctness or otherwise. The test for review is limited.

[21] In regard to the issue of the disclosure of information, it appears to me from the papers that a request for information was made, again in the form that one would expect in a criminal or civil court. Some of that information, it would appear, has been disclosed during the course of what was termed a pre-hearing but there remains information which the applicant seeks in order to, as she contends, properly prepare for the disciplinary hearing.

[22] What concerns me in this regard is that there is on record, it would appear, only a refusal by the first respondent to provide the

information sought. As I have indicated too, that matter has been referred to the Bargaining Council and a dispute in that regard

remains pending.

[23] Because the disciplinary hearing has not yet commenced, indeed the applicant herself has never yet appeared before a convened hearing, The second respondent has not been given the opportunity to make any ruling or to consider any application brought after the commencement of the proceedings in respect of any further information sought. To my mind the referral of a dispute to the Bargaining Council, in these circumstances, is premature and there is accordingly no substantive basis for interference by this Court at such an early stage in the process.

[24] In regard to the application for recusal, again there does not appear to be any reasoned ruling on record in that regard but the Court must bear in mind necessarily, the nature of a disciplinary hearing. It is not a criminal trial.This Court has said many times that the criminal justice model which appears to be the basis on which the applicant contends the disciplinary hearing should be held is simply not applicable.The hearing is intended to be an informal process during which an employee who is alleged to have committed an act of misconduct must be given the opportunity to state his or her case, it is as simple as that.

[25] The issue of bias in this regard is not to be determined in the same way that one would interrogate the question of bias in a criminal or civil trial. The concern raised by the applicant is that the Chairperson, the second respondent, having chaired other hearings and having heard other witnesses in regard to charges emanating from the same set of facts, would not be in a position independently to exercise her judgment in respect of the charges brought against the applicant.

[26] Again it does not appear to me, and having regard to the applicable test, that this is a concern that would justify intervention by this Court at this stage.

[27] This is not one of those matters where it is clear that disciplinary action is brought for example to victimise an employee or in circumstances where an employee may have made a protected disclosure. The scope of intervention by this court is limited to only those egregious cases where on the face of it a manifest injustice would be done should a disciplinary hearing be permitted to continue.

[28] In respect of each of the three complaints raised by the applicant in these proceedings, in my view, these are largely technical in nature and do not form a legitimate basis for intervention by this Court at this point.

[29] The impression one gets, reading the papers, is that these disciplinary proceedings have been unnecessarily delayed. As I have indicated in the brief chronology, these proceedings were to commenced in the first week of August 2013. It is now the

middle of October and but for the preliminary matters and rulings to which I have referred, this inquiry has yet to get off the ground.

[30] Little purpose would be served, in my view, by further delaying the disciplinary process by permitting interlocutory applicants for review and the resolution of disputes by the Bargaining Council. In my view it is in the interests of both parties to continue the disciplinary proceedings and to bring them to the point of determination.

[31] As I have indicated if the applicant is unhappy with the process or the outcome of those proceedings she has her rights in terms of the Labour Relations Act, and those can be exercised in due course.

[32] In regard to costs, I had thought that this is a matter which borders on an abuse of the process of this Court. This Court's attitude in regard to intervention and interlocutory matters is well known. In my view the applicant was misguided in bringing this application. One must bear in mind too that this is taxpayers' money that is being used to oppose these proceedings, and ordinarily that would justify an order for costs.

[33] However, I bear in mind that Section 162 of the Act confers a broad discretion on this Court in relation to costs and that the attitude adopted in this Court, unlike the civil courts, is that individuals should not feel that the door of the Court are closed to them on account of the potential for an order for costs should they be unsuccessful.

[34] As I have said that is a dispensation more ordinarily extended to litigants who bring matters before this Court in good faith. This is a borderline case but I am prepared to give the applicant the benefit of the doubt in that regard. So for that reason, I intend to make no order for costs.

I make the following order:

1. The application is dismissed.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT