NEHAWU obo Titus v Department of Agriculture, Land Reform and Rural Development(Western Cape) (C228/2022) [2022] ZALCCT 27 (13 June 2022)

NEHAWU obo Titus v Department of Agriculture, Land Reform and Rural Development(Western Cape) (C228/2022) [2022] ZALCCT 27 (13 June 2022)

The court found that the applicant had a clear right to have the dispute over the employer's appointment of legal practitioners determined by arbitration, as provided for in section 24 of the LRA and the relevant collective agreement. The harm alleged by the applicant—being prejudiced by facing legal practitioners without equivalent representation—could not be adequately remedied after the inquiry, except through a procedurally unfair dismissal claim. The court held that the arbitration process was a suitable and expeditious remedy, and that the balance of convenience favoured granting interim relief to stay the disciplinary inquiry pending the outcome of the bargaining council referral....

Citation
[2022] ZALCCT 27
Parties
Applicant: NEHAWU obo Mitcheling Titus; Respondent: Department of Agriculture, Land Reform and Rural Development (Western Cape); Respondent: Gideon Mogaba Mamabolo (N.O.); Respondent: Public Service Coordinating Bargaining Council (PSCBC)
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
13 June 2022
Case Number
C228/2022
Procedural Posture
Urgent Application / Interim Interdict Pending Outcome of Bargaining Council Referral and Review Application
Outcome
Interim interdict granted in part; disciplinary inquiry stayed pending outcome of bargaining council arbitration; no relief granted in respect of the review application; no order as to costs.
Judges
Lagrange
Legal Topics
Collective Agreement Interpretation, Disciplinary Proceedings, Legal Representation in Inquiries, Urgent Interdict, Section 158 1 H Review
Labour Law Civil Procedure Collective Agreement Interpretation Disciplinary Proceedings Legal Representation in Inquiries Urgent Interdict Section 158 1 H Review

Case Brief

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Parties

NEHAWU obo Mitcheling Titus

Applicant

Department of Agriculture, Land Reform and Rural Development (Western Cape)

Respondent

Gideon Mogaba Mamabolo (N.O.)

Respondent

Public Service Coordinating Bargaining Council (PSCBC)

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Outcome of Bargaining Council Referral and Review Application

Legal Issues

  1. 1 Whether the employer's appointment of legal practitioners as chairperson and representatives in a disciplinary inquiry breaches PSCBC Resolution 1/2003.
  2. 2 Whether the disciplinary inquiry should be stayed pending the outcome of the bargaining council referral and review application under section 158(1)(h) of the LRA.
  3. 3 Whether the applicant has a clear or prima facie right to the relief sought and whether alternative remedies exist.

Ratio Decidendi

The court found that the applicant had a clear right to have the dispute over the employer's appointment of legal practitioners determined by arbitration, as provided for in section 24 of the LRA and the relevant collective agreement. The harm alleged by the applicant—being prejudiced by facing legal practitioners without equivalent representation—could not be adequately remedied after the inquiry, except through a procedurally unfair dismissal claim. The court held that the arbitration process was a suitable and expeditious remedy, and that the balance of convenience favoured granting interim relief to stay the disciplinary inquiry pending the outcome of the bargaining council referral....

Court Disposition

Interim interdict granted in part; disciplinary inquiry stayed pending outcome of bargaining council arbitration; no relief granted in respect of the review application; no order as to costs.

Orders

  • The application is heard on an urgent basis under Rule 8 of the Labour Court Rules and noncompliance with forms, service and time periods is condoned.
  • The First Respondent is interdicted and restrained from proceeding with the disciplinary inquiry against Ms M Titus pending the settlement or, alternatively, the issuing of an arbitration award in respect of the dispute referred to the Third Respondent by the Applicant on 17 May 2022.