Phaahla v Minister of Justice and Correctional Services and Others (J 1476/2021) [2022] ZALCJHB 9 (7 February 2022)

Not Reportable

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J 1476/2021

In the matter between:

PHAAHLA ANDISWA

Applicant

and

MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES

First Respondent

NATIONAL COMMISSIONER OF CORRECTIONAL SERVICES Second Respondent

REGIONAL COMMISSIONER OF CORRECTIONAL SERVICES:

MS MOLATEDI GRACE

Third Respondent

AREA COMMISSIONER OF KGOSI MAMPURU:

MR KHOZA EMMANUEL Fourth Respondent

Heard: 30 November 2021

Delivered: 07 February 2022 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 07 February 2022)

JUDGMENT

TULK AJ

Introduction

[1] This is an urgent application for an interim order. The applicant, Ms Andiswa Phaahla, is employed by the Department of Correctional

Services (the Department) as a Correctional Officer. She is stationed at Kgosi Mampuru Correctional Services.

[2] She seeks an urgent order that this Court intervene in her part heard internal disciplinary hearing by first, interdicting and restraining

its continuation until such time as she has recuperated and second, that any disciplinary action taken after the enrolment of this urgent application is unlawful. She seeks a further order directing the respondents to enroll her disciplinary hearing as an Inquiry by an Arbitrator in terms of section 188A of the Labour Relations Act[1] (the LRA), and that the respondent issue her with the necessary documents to receive medical treatment for the injury she suffered on duty, which culminated in her being diagnosed with Post Traumatic Stress Disorder (PTSD). Finally, she asks that this Court declare unlawful any unilateral decision by the respondents to continue with her hearing.

[3] The applicant contends that she suffered an injury on duty that triggered PTSD. She was charged with misconduct on 12 August 2021, and asks that this Court interdict her hearing until she has recuperated and recovered from her PTSD. On 9 November 2021 she brought a formal application at the internal hearing requesting that the matter be postponed due to her medical condition. The application recorded that she was diagnosed with PTSD on 20 April 2020 and that she was still ill and incapacitated and could not attend the hearing.

[4] It is not apparent whether a ruling was issued in respect of the postponement application, but there is no dispute that the hearing

reconvened on 16 November 2021, and after the first witness gave evidence the applicant stated that she was not well and the Chair

adjourned the hearing to the following day, 17 November 2021.

[5] The applicant did not attend the hearing and instead submitted a sick note and the hearing was again adjourned to 24 November 2021, where the applicant appeared but her representative did not and a sick note was submitted by her on behalf of her representative. The matter was postponed again to 2 December 2021 prior to which this application was brought seeking to interdict the hearing.

[6] The applicant sought the recusal of the Chairperson to the hearing and that application was dismissed at the internal disciplinary hearing. She contends further that the hearing constitutes an occupational detriment because she made a protected disclosure.

[7] The applicant contends that there are exceptional circumstances for this Court to intervene in her incomplete disciplinary hearing. Those exceptional circumstances are that:

7.1 She is being subjected to a hearing before a partial and biased chair.

7.2 The hearing is an occupational detriment because she lodged a grievance against Area Commissioner Khoza, where she complained that he sexually harassed her and instead of timeously investigating the complaint or offering her counselling or advice, the Department is instead victimising her by subjecting her to a disciplinary hearing.

7.3 She has been diagnosed with PTSD that arose from a workplace injury.

7.4 She has been sexually harassed by means of body shaming;

7.5 She is being subjected to a disciplinary hearing that is conducted in haste where the managers, witnesses and investigators are the same as in her husband’s case

[8] It is her case further that she applied for legal representation at her internal hearing, given her medical condition and the complexity of her matter. This application was refused and this, contends the applicant, is a further reason warranting this Court’s

intervention in her hearing.

[9] Finally, she also sought the recusal of the Chairperson since he presided over her husband’s hearing and this application was also refused.

[10] The applicant seeks to interdict her hearing also on the basis that she is unable to heal from her injury as a result of being subjected to the hearing because the hearing is being conducted in haste with disregard to her medical condition.

[11] The Chair’s affidavit sets out the respondents’ opposition. The Chair contends that the disciplinary hearing was initially set down for 6 April 2021. The applicant then sent a sick note and did not attend. Thereafter, the hearing was postponed approximately

twelve times.

[12] During this time the applicant sought legal representation. The Chair, in his answering affidavit, submits that he refused legal representation because the Disciplinary Code does not permit legal representation. He contended further that he refused the recusal application since there was no valid reason to support the application.

[13] The Chair’s affidavit goes on to record that the applicant attended the hearing on 16 November 2021, and after the testimony of the first witness reported that she was not well. He adjourned the proceedings to 17 November 2021, on which day the applicant submitted a sick note and did not attend the hearing. He then adjourned the hearing to 24 November 2021. On 24 November 2021 attended the hearing. However, the hearing did not proceed because the applicant submitted a sick note on behalf of her representative. The Chair then postponed the hearing to 2 December 2021.

[14] The respondent contends further that the applicant changed her representative six times in an effort to delay the hearing.

Finally, to the extent that she alleges having raised a protected disclosure the Chair contends that he is not aware of such allegation

and moreover, it is not a foregone conclusion that the applicant will be dismissed. His decision will be based on the evidence.

[15] The respondents contend also that the applicant has not made a protected disclosure as contemplated in section 3 of the Protected Disclosures Act[2], (the PDA).

The Law

Intervention in ongoing disciplinary processes

[16] It is trite that this Court has jurisdiction to intervene in incomplete disciplinary proceedings, but only in exceptional circumstances.

Thus, this Court does not lightly intervene in an internal disciplinary process.[3] The principle was enunciated as set out below in Jiba v Minister: Department of Justice and Constitutional Development[4]:

“Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”

[17] There is a policy rational to this approach and in Trustees, National Bioinformatics Network Trust v Jacobson and Others[5], this Court noted that there were at least two reasons why it ought not routinely to intervene in incomplete arbitration proceedings. It observed that the same considerations applied to incomplete disciplinary hearings and held:

“The first is a policy -related reason – for this court to routinely intervene in incomplete arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court”.

[18] Much later in in Ngobeni v Prasa Cres and Others[6] the Court said the following in the reasons for judgment:

“The urgent roll in this court has become increasingly and regrettably populated by applications in which intervention is sought, in one way or another, in workplace disciplinary hearings. The present application is a prime example and is exacerbated by the preceding application to review and set aside Advocate Cassim’s ruling on recusal.... The abuse goes further – what the applicant effectively seeks to do is to bypass the statutory dispute resolution structures in the form of the CCMA and bargaining councils. One of the primary functions of the structures is to determine the substantive and procedural fairness of unfair dismissal disputes. Applicants who move applications on an urgent basis in this court for orders that effectively constitute findings of procedural unfairness, bypass and undermine the statutory dispute resolution system. The court’s proper role as one of supervision over the statutory dispute resolution body; it is not a court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micromanage discipline in workplaces”.

[19] In the light of the above framework, I turn now to establish whether the applicant has established exceptional circumstances for this Court’s intervention.

[20] Turning first to the question of urgency, there is no dispute as to urgency. The pleadings have closed and the issues fully ventilated. Given the ongoing disciplinary process, the matter should in the interests of justice be urgently determined.

[21] In my view, the applicant has failed to establish that there are any exceptional circumstances that warrant intervention by this Court in her pending disciplinary enquiry. The complaints that she is too ill to attend the hearing, was denied a right to legal representation and sought the chair’s recusal do not meet the threshold for intervention.

[22] These concerns implicate the procedural fairness of her hearing and it is well established that the benchmark in matters where some form of procedural unfairness is alleged remains Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration[7], where the court stated that it will ordinarily hold an employer to no more than the statutory code of good practice or, if they are more favourable, the terms of the employer’s disciplinary code and procedure. The test to be applied is not that which applies in a criminal trial.

[23] In the present instance, there is no credible evidence before this Court that in terms of the respondent’s disciplinary code the applicant has a right to legal representation. At best for her, the first respondent has a discretion to allow legal representation in exceptional cases. An application for legal representation was submitted on the applicant’s behalf and considered by the

Chairperson. He dismissed the application and there is nothing to suggest that his decision was improper or resulted in a grave

injustice to the applicant. In fact the hearing has sat on at least 12 occasions with the applicant being represented in the manner as contemplated by the disciplinary code.

[24] Insofar as the recusal and her alleged ongoing incapacity to attend the hearing is concerned, these are procedural issues that must be addressed in the CCMA or relevant Bargaining Council before this Court can properly be seized with the matter. The applicant

cannot bypass these mandatory dispute resolution structures as she seeks to do in this application. Her conduct on this score, as held in Ngobeni v Prasa Cres constitutes an abuse of process.

[25] Moreover, the correctness or fairness of the Chair’s decisions dismissing the application for legal representation and recusal are not for this Court to determine without the matter first going to arbitration in terms of mandatory dispute resolution processes. Clearly these rulings were made soon after the hearing was convened and the hearing continued thereafter. On the face of it, the applicant acquiesced in these rulings.

[26] In closing, the applicant has failed to establish either a right to legal representation at her disciplinary hearing, or that her case is so exceptional that this Court should intervene in the conduct of the hearing insofar as it relates to her illness and the recusal application. In any event, the applicant has an adequate alternative remedy at her disposal. Should she pursue her claim of procedural unfairness on any of the grounds set out in her founding affidavit, these claims will be considered in due course in an arbitration hearing, if it even transpires that she is dismissed. As the Court pointed out in Avril Elizabeth Homes, true justice for employees resides in an independent arbitration hearing where the onus is on the employer to justify the substantive

and procedural fairness of any disciplinary action that it takes.

[27] The application therefore stands to be dismissed and the outcome on this judgment is of course not relevant to any future determination of the procedural fairness or otherwise of the current internal disciplinary hearing. The applicant remains at liberty to raise all or any of the submissions made in these proceedings during the course of any subsequent arbitration hearing, including whether her hearing ought to have been heard as a pre-dismissal arbitration in terms of section 188A of the Labour Relations Act.

[28] On this basis the applicant has shown no exceptional circumstances for this Court to intervene in her internal disciplinary hearing and the application is dismissed for lack of jurisdiction.

Protected disclosure

[29] The next issue concerns the alleged protected disclosure made by the applicant. Section 3 of the PDA provides:

“No employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.”

[30] An occupational detriment is defined among others as being subjected to a disciplinary hearing as a consequence of having made a protected disclosure. To qualify for protection in the PDA, the employee must demonstrate on the facts that a disclosure as contemplated in the PDA was made. Once this is done, section 4(2)(b) provides the applicable remedy. It states that:

“Any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice as contemplated in Part B of Schedule 7 to that Act, and the dispute about such an unfair labour practice must follow the procedure set out in that Part: Provided that if the matter fails to be resolved through conciliation, it may be referred to the Labour Court for adjudication.”

[31] In Feni v Pan SA Language Board and Another[8] this Court found that it did not have the necessary jurisdiction to entertain an automatically unfair dismissal dispute that arose as a result of an alleged protected disclosure. The Court, per Basson J held that section 4(2)(a) of the PDA expressly states that a dismissal in breach of section 3 of the PDA is deemed to be an automatically unfair dismissal as contemplated in s 187 of the LRA 1995. The court went on that section 4(2)(a) further expressly states that a dispute about such a dismissal must follow the procedure set out in chapter VIII of the LRA. The court concluded that the PDA is therefore clear:- if an employee has been dismissed and the dismissal is alleged to have amounted to an occupational detriment in terms of section 3 of the PDA, the employee must, in terms of s 191(1) of the LRA, first refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation, and only once a certificate of non-resolution has been issued can the employee refer the dispute about his or her automatically unfair dismissal to the Labour Court for adjudication in terms of s 191(5)(b)(i) of the LRA.

[32] The same reasoning extends to a dispute about an internal disciplinary hearing alleged to be an occupational detriment. Such conduct is deemed in terms of section 4(2)(b) to constitute an unfair labour practice, and in the absence of such matter being referred to the CCMA or relevant Bargaining Council for conciliation and where no certificate of non-resolution has been issued, this Court has no jurisdiction to determine the alleged protected disclosure. For that reason, this Court is not properly seized with the protected disclosure.

Costs

[33] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. Although this Court is conventionally reluctant to make orders for costs against genuinely

aggrieved employees who seek recourse against their employers, the present case constitutes an exception.

[34] This Court has made clear in a number of recent cases that generally speaking, it is not open to employees to seek intervention in incomplete disciplinary hearings, and that to do so save in the most exceptional cases constitutes an abuse of the process of this Court. That notwithstanding, the applicant has approached this Court, seeking intervention on broad grounds, which in the main constitute procedural complaints.

[35] For this reason, combined with the fact that this Court has no jurisdiction in my view, the interests of the law and fairness require that costs follow the cause.

[36] In the circumstances the following order is made:

Order

1. The application is deemed urgent.

2. The application is dismissed with costs for lack of jurisdiction.

_________________________

R. Tulk

Acting Judge of Labour Court of South Africa

Appearances:

For the applicant: Chabalala (DN) Attorneys

For the respondent: Office of the State Attorney

[1] No 66 of 1995, as amended.

[2] No. 26 of 2000.

[3] Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC) at para 17.

[4] (2010) 31 ILJ 112 (LC) at para 17.

[5] (2009) 30 ILJ 2513 (LC) at para 4.

[6] [2016] 8 BLLR 799 (LC) at para 14.

[7] (2006) 27 ILJ 1644 (LC) 1651C-1652A

[8] (2011) 32 ILJ 2136 (LC) at para 13