Written by Danny Hodgson
Disciplinary hearings are a daunting prospect for employees and, in some instances, they look to the courts to intervene.
Employees often resort to urgent interdicts to prevent disciplinary hearings from commencing or continuing, or to interdict them from continuing pending a review application relating to a chairperson’s ruling. This is usually due to a perceived violation of a right but, in many cases, simply to frustrate the internal proceedings.
Courts are reluctant to interfere in internal disciplinary processes and in order for employees to obtain the relief that they are seeking, it is necessary to prove that exceptional circumstances exist. The reason behind the courts’ reluctance to interfere is to prevent employees from jumping the queue in terms of the statutory dispute resolution system. One of the primary functions of the CCMA and bargaining councils is to determine unfair dismissal disputes and should an employee therefore bring an urgent application relating to substantive or procedural fairness, the Labour Court is unlikely to entertain it as there are sufficient alternative remedies in the normal course.
The Labour Court is meant to provide a supervisory function over the CCMA and bargaining councils and should therefore not be approached in the first instance unless there are exceptional circumstances. In order to show that exceptional circumstances exist, the employee would have to prove that a grave injustice will occur if the court fails to intervene. For example, in Mkasi v Department of Health: KwaZulu-Natal and Another (D657/2019)  ZALCD 4 (31 May 2019) the employee had asked the chairperson of the disciplinary inquiry to dismiss the allegations against him, claiming that the employer had waived its right to launch the disciplinary proceedings due to its delay in doing so. The chairperson, however, failed to make a ruling on this question and ordered that the inquiry proceed. The Labour Court granted an interdict to stay the disciplinary proceedings pending the completion of an application to have the chairperson’s ruling reviewed.
Whilst employees are therefore sufficiently protected by statutory processes in the CCMA and bargaining councils, which means that they should not rush to the courts to intervene unnecessarily, employers should ensure that their disciplinary processes are handled in an efficient and fair manner to avoid a situation where exceptional circumstances exist for a court to intervene.