Employees who ‘blow the whistle’ on their employers are often suspended and summoned to attend disciplinary enquires. They may refer unfair labour practice disputes to the CCMA or a bargaining council. But does the Labour Court have the jurisdiction and power to grant interim relief and suspend the disciplinary proceedings until the alleged unlawful or unfair conduct of the employer has been finally determined in another forum?   Recently the Labour Court did precisely that relying mainly on the public interest and the fact that an occupational detriment was involved.

Labour Court asked to intervene

The Director and Head of Legal Services of the Northern Cape Department of Roads and Public Works (the Department) applied to the Labour Court to suspend disciplinary proceedings against him, scheduled for 20 and 24 January 2014, to be suspended pending the final determination of the unfair labour practice disputes that he had referred to the General Public Service Sectoral Bargaining Council and/or by the Labour Court.

Protected Disclosures Act

He alleged  that his suspension and the holding of a disciplinary hearing amounted to occupational detriments in terms of the Protected Disclosures Act, 2000 (PDA).   At the date of hearing of the application there had already been a consolidated conciliation process and the parties were awaiting the certificate of outcome of non-resolution of the disputes.

In Montingoe v Head of Dept of the Northern Cape Dept of Roads & Public Works [C18/14 2014/03/06] Justice Rabkin-Naicker dealt with the facts in some detail and stated that on 26 November 2013 he was served with a notice to appear before a disciplinary tribunal to respond to four ‘counts’ that were unrelated to confidential information.

Evaluation

In deciding whether to grant the interim relief the Labour Court considers whether the applicant has proved:

  • A prima facie right, even though open to some doubt.
  • A well- grounded apprehension of irreparable harm, if the interim relief is not granted.
  • Absence of an alternative remedy.
  • A balance of convenience in favor of granting the interim relief.

“Where the applicant cannot show a clear right, and more particularly where there are disputes of fact, the Court’s approach in determining whether the applicant’s right is prima facie established, though open to some doubt, is to take the facts as set out by the applicant, together with any facts set out by    the respondent which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial of the main action”.

Labour Appeal Court judgment applied

The Judge quoted the following passages with approval from  Palace Group Investments (Pty) Ltd v Mackie [28.05.2013 JA20/12] per Molemela AJA:

“…it is necessary to assess whether an applicant has, prima facie, established a right capable of protection.   In the context of this particular matter, this calls for a determination of whether the information disclosed by the respondent prima facie falls within the definition of a protected disclosure; put differently, whether such information prima facie qualifies as a protected disclosure.

The question is whether the respondent had put sufficient information at the disposal of the court a quo to enable it to determine where had had shown a prima facie right to entitlement to the protection afforded by the PDA.   This inevitably calls for an assessment and analysis of the information disclosed ….in the founding affidavit ….to determine whether it amounts to a disclosure.   If it constitutes a disclosure, the next question would be whether such disclosure is protected.   If the disclosure amounts to a protected disclosure, the next consideration would be whether the respondent was subjected to an occupational detriment.”

In para [27] the Labour Court dealt with the public interest considerations involved in exercising the discretion to suspend disciplinary proceedings where it has been shown that an applicant has established a prima facie right, although open to some doubt, that an occupational detriment has been committed.

No alternative remedy

In considering an alternative remedy the Judge referred to the Labour Appeal Court (LAC) judgment in Booysen v Minister of Safety and Security  [2011] 1 BLLR 83 (LAC) per Tlaletsi [LP] JA.   It will be remembered that Acting Justice Cheadle had refused to grant any interim relief – see Booysen v SAPS (South African Police Service) [2008] 10 BLLR 928 (LC).   The LAC held that the Labour Court has jurisdiction to interdict any unfair conduct, including disciplinary action but only in exceptional cases.

Interim relief granted

In granting interim relief Justice Rabkin-Naicker decided that the test for intervening in disciplinary proceedings cannot simply be equated to a cause of action that is not based on the PDA and that the “exceptional” principle should be applied where a PDA matter is concerned.   In other words on this  approach the Labour Court must consider:

  • both the ambit of the definition of occupational detriment in the PDA; and
  • the public interest considerations.