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IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN BRAAMFONTEIN

CASE NR: J2368/07

In the matter between:

BARGARETTE, NATHAN First Applicant

MURISON, STEVE GARTH Second Applicant

JANSEN, JOHN STANLEY Third Applicant

And

PERFORMING ARTS CENTRE OF

THE FREE STATE (“PACOFS”) First Respondent

MARK ANTROBUS SC Second Respondent

EX TEMPORE JUDGEMENT

BASSON, J

NATURE OF THESE PROCEEDINGS

1. This was an urgent application in terms of which the Applicants (I will refer to the three Applicants jointly as the Applicants) sought an order interdicting the First Respondent (the employer of the Applicants) from proceeding with the disciplinary enquiry of the Applicants which is scheduled from the 1^st to the 9^th of November 2007. The Applicants further sought an order directing the Second Respondent (who is the chairperson of the disciplinary hearing) to postpone the matter pending the conclusion of an application lodged by the Applicants with this Court which is scheduled to be heard on the opposed motion roll on 29 November 2007. No relief is sought against the Second Respondent (the chairperson of the disciplinary hearing) and he is cited solely for his interest in these proceedings.

2. This application was heard yesterday on the 30^th of October 2007. I have indicated that I will give my judgement today. Due to the urgency of the matter, I will, however, only give very brief reasons for my order and will, if necessary supplement my reasons at a later stage.

BRIEF BACKGROUND

3. The First Applicant is the deputy CEO of the First Respondent. The Second Applicant is the Acting CFO and Manager Finance of the First Respondent and the Third Applicant is the Human Resources Manager of the First Respondent. All three Applicants were suspended on 10 April 2007. The First Respondent had conducted internal investigations into alleged acts of misconduct and on 22 August 2007 charge sheets setting out the disciplinary charges were served on the offices of the Applicants’ attorneys. The First Applicant’s charge sheet shows that he is charged with conflict of interest, misconduct relating to procurement and lack of financial controls. It is common cause that the investigation into the alleged acts of misconduct has been conducted over a long period of time.

4. At the outset I should point out that, from a reading of the papers -- and here I refer more specifically to the Applicants’ founding affidavit-- it appears that the Applicants are founding their application on two grounds, although I must point out that Mr Cassim had argued that this application is based squarely on the fact that there is a pending application before this Court. Be it as it may, I have understood the papers differently to encompass two distinct grounds:

1. Firstly, the disciplinary hearings should be postponed pending the outcome of an application before this court under caseno J 1312/07 which has been set down by the Registrar on 29 November 2007. In terms of that application relief is sought—

“to the effect that the taking of disciplinary action against them [the Applicants] and indeed the very scheduling of the enquiry is unlawful under the Employment Equity Act, the Labour Relations Act, the Constitution of the Republic of South Africa Act and the Protected Disclosures Act”

2. Secondly, it was submitted that the refusal by the Second Respondent to postpone the disciplinary enquiry pending the outcome of the said application in this Court on 29 November 2007 will severely prejudice the Applicants. More specifically it was submitted that the Applicants will be severely prejudiced if they have to proceed on the 1^st of November 2007 due to the fact that their counsel of choice is not available for this period. In this regard it was argued that is impossible for new legal representatives “to get on top of this matter given the volume involved.”

5. I will now briefly consider whether the Applicants have made out a case for the relief sought in the Notice of Motion.

APPLICATION FOR POSTPONEMENT

6. The consolidated disciplinary hearing of the Applicants have initially been set down for 24 to 30 October 2007 and for 1 to 9 November 2007. As already stated, the Applicants have served an application for the postponement of the disciplinary enquiry to dates to be mutually agreed upon between the parties but not earlier than 11 – 20 December 2007. It is common cause that the Second Respondent granted the application for postponement in respect of the dates in October but that he refused the application for a postponement in respect of the dates in November 2007.

7. I do not propose to give a detailed exposition of the ruling made by the Second Respondent. Suffice to point out that the Second Respondent partially refused the application for a postponement and in doing so gave a detailed and well reasoned ruling in which he weighed up the merits of the said application. At this juncture I must point out that I do not, by referring to this ruling, assume or accept that this is one of those cases where this Court should intervene in the pending disciplinary hearing nor am I of the view that this Court should in this instance review the said ruling. This Court and the High Court have held that, although the Court can and will intervene in a pending disciplinary inquiry, it will only do so in the most exceptional circumstances, and will do so where, for example, the constitutional rights of an employee are being “trampled”. (See in this regard Police & Prisons Civil Rights Union v Minister of Correctional Services and Others (1999) 20 ILJ 2416 (LC) at p 2432 – 2433 ad paragraph 53 – 56.) Furthermore, where the Court is of the view that the facts are not exceptional and that the employee, if ultimately dismissed, have other remedies at his or her disposal, the Court will also not intervene: See in this regard Mantzaris v University of Durban-Westville & Others (2000) 21 ILJ 1818 (LC) at p 1828 paragraph 5.8 where the Court held as follows:

“Applicant did not bring interdict proceedings in the main action, and in any event even had he done so, he has not shown exceptional circumstances, He has merely stated that he believes he will be fired. This has never been a good reason for interfering with a disciplinary tribunal, and needless to say, applicant has access to ample other remedies in terms of the LRA.”

8. In arriving at the decision not to postpone the hearing, the Second Respondent, inter alia, took into account the fact that the First Respondent will suffer substantial prejudice of continued payment of the salaries of the Applicants who are on suspension with pay for a long period. The Second Respondent further took into account that there is extensive documentation upon which the employer proposes to rely in the inquiry and that there will no doubt be “some awkwardness and prejudice in the employees changing counsel”. The Second Respondent, however, concluded after having performed a balancing act between the competing interests of the First Respondent and the Applicants that he is not satisfied with the explanation as set out by the Applicants for the postponement and ruled that the hearings will commence on 1 November 2007.

9. It is the primary prerogative of the employer to determine the disciplinary process, provided, of course, that the procedure is fair. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC) the Court pointed out that what is required is that the right to a fair hearing requires only dialogue and the opportunity for reflection before any decision is taken to dismiss. Where an employee applies for a postponement the chairperson of the disciplinary hearing is equally required to allow the applicant who applies for a postponement to bring such an application and to argue the reasons for such an application. In exercising the discretion whether or not to grant the postponement, the chairperson must take into account all relevant factors including but not limited to the explanation for the postponement and whether there is prejudice to any of the parties.

10. In the present case the sole reason advanced for the postponement was the unavailability of counsel of the Applicants’ choice. In this regard it should be pointed out that the Applicants do not have an absolute right to be represented by counsel and I agree with the submission advanced on behalf of counsel for the First Respondent that at best, the First and Second Respondent are obliged to accommodate the availability of chosen counsel within reason.

11. Nothing has been placed before this Court to persuade me that the Second Respondent has trampled the applicants’ fundamental rights by refusing the application for a postponement on the basis of the unavailability of counsel or at best, that the Second Respondent did not properly consider the arguments submitted on behalf of the Applicants for a postponement. I have also taken note of the fact that this Court has held that an employee facing possible dismissal does not have an independent cause of action based on an allegedly unfair procedure which may lead to dismissal. See in this regard: Moropane v Gilbeys Distillers & Vintners (Pty) Ltd & Another (1998) 19 ILJ 635 (LC) at page 641 where Landman J held as follows:

“To sum up I am of the view that: (a) an employee facing dismissal for misconduct or incapacity does not enjoy an independent right to procedural fairness which can be enforced by the Labour Court prior to its resulting in an unfair dismissal; (b) as the applicant enjoys no such right the Labour Court has no jurisdiction to come to his aid.”

12. I am therefore, in light of the aforegoing not persuaded that the Applicants have established the primary requirement for the granting of interim relief namely that of a “prima facie right albeit open to some doubt”. At this juncture I must point out that counsel on behalf of the Respondent had argued the matter on the basis that the Applicants are seeking an order for final relief and had therefore argued that it was incumbent on the Applicants to establish the existence of a “clear right”. I am not persuaded that what the Applicants are seeking is final relief. I have perused the Notice of Motion and I am of the view that they are seeking an order for interim relief pending the application before the Labour Court. Consequently, in order to succeed with an application for temporary relief (or interim interdict),¹ an applicant accordingly has to persuade the court that --

(a) it has a prima facie right which deserves protection;

(b) it has a well-grounded apprehension of harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) the balance of convenience favours the granting of the interim relief; and

(d) that the applicant has no reasonable alternative remedy.

13. In light of what I have already stated hereinabove, I am not persuaded that the Applicants have succeeded in establishing a prima facie right although open to some doubt. Although not strictly necessary to evaluate, I am also not persuaded that the Applicants will suffer harm in light of the fact that the proceedings have yet to run their course. The Applicants may or may not be dismissed or disciplined. However, if the Applicants are ultimately dismissed, the Applicants will have an alternative remedy available and they will have recourse to the remedies provided for by the Labour Relations Act 66 of 1995. I am also on the papers not persuaded that the balance of convenience favours the Applicants. In light of the aforegoing, the application falls to be dismissed on the basis that the Applicants have not made out a case for the relief sought in the Notice of Motion.

PENDING APPLIATION BEFORE THIS COURT

14. Despite the aforegoing, there is, one further important aspect that needs to be considered and that is whether the disciplinary proceedings should be interdicted pending the application before this Court and which has been set down on 29 November 2007.

15. Very briefly. It was submitted on behalf of the Applicants that if the Second Respondent is allowed to continue with the disciplinary enquiry, the application pending before the Labour Court on 29 November will be of academic interest. It was further submitted that the Applicants are entitled to the protection afforded under the Protected Disclosures Act 26 of 2000 which Act provides protection to whistleblowers against an occupational detriment which includes disciplinary action against such a whistleblower and that this Court should, in terms of section 191(13) of the Labour Relations Act, grant an interim interdict pending the resolution of the underlying dispute.

16. It is trite that the Protected Disclosures Act is designed to protect whistleblowers against any reprisals as a result of a disclosure as defined in that Act. It is also clear that this Court has the power to grant appropriate relief on an urgent basis and may order that the status quo be preserved pending determination of the main dispute.

17. Has the Applicant established a prima facie right though open to some doubt that it is entitled to the relief provided for in terms of the Protected Disclosure Act and the Labour Relations Act? In this regard it must be pointed out that, apart from a mere allegation that there is an application pending in terms of which the lawfulness of the disciplinary hearing will be disputed, inter alia under the Protected Disclosures Act, the founding affidavit is completely silent on the nature of that application. More in particular, there is no allegation made in the papers that the Applicants have made certain protected disclosures and that thát had resulted in the institution of disciplinary action against them. In coming to a decision I have also taken note of the decision by this court in Grieve v Denel (Pty) Ltd (2003) 24 ILJ 551 (LC) where Pillemer AJ has dealt extensively with the protection afforded to whistleblowers. At the outset I must state that I am in full agreement with the exposition of the law as set out in this judgement. The facts in that case, however, differ fundamentally from this case. In that case the learned Judge found on the papers that the applicant had disclosed certain information about alleged wrongdoings to certain individuals. The Applicant in that case was subsequently suspended and charged with misconduct The charge of misconduct arose from the manner in which the applicant in that case had obtained the information which led to the disclosures or the purpose to which the disclosures were to be put (at paragraph 15 of the judgement). The learned Judge concluded as follows:

“[17] At a prima facie level I am satisfied that the applicant has established a link between the charges which have been brought against him and the fact that he made disclosures. The timing supports his complaint on the probabilities as does the introduction of the charge relating to his internet usage and, it is clear from the letter itself that the charge-sheet is based largely on information which the applicant himself provided at the time when he was asked by Bedford to disclose what it is that he intended reporting to the board. The applicant has in my opinion established a prima facie case. The respondent’s reply does not caste sufficient doubt upon the case established by the applicant to justify the refusal of relief on that ground. I am therefore satisfied that the applicant has established a prima facie case open to some doubt.”

18. On the papers in the present application no facts have been placed before this Court which establish a link between an occupational detriment and the subsequent institution of disciplinary charges against the Applicants. It is not, in my view, sufficient to merely refer to the fact that there is a pending application before this Court. The Applicants in these proceedings must make out a proper case on the papers before this Court for the relief sought. In the absence of any allegation whatsoever that the Applicants are suffering an occupational detriment as a result of a protected disclosure as envisaged by the Protected Disclosures Act, there is no basis upon which it may be concluded that that the Applicants have established the existence of a prima facie right to the relief envisaged not only by the Protective Disclosures Act but also as provided for in section 191(13) of the Labour Relations Act.

19. In the event, the application is dismissed. I can see no reason why costs should not follow the result.

…………………………….

BASSON, J

31 October 2007

DATE OF APPLIATION: 30 OCTOBER 2007

DATE OF JUDGEMENT: 31 OCTOBER 2007

FOR THE APPLICANTS: CASSIM, SC

FOR THE RESPONDENTS: WATT-PRINGLE SC\

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