By Thapelo Kharametsane

Our law seems to be silent on whether or not an employer can lawfully and/or fairly institute two or more disciplinary inquiries against an employee that run parallel to each other. The disciplinary codes and policies of most employers in the private and public sector are also silent on this issue. This article will focus on whether or not it is lawful (and not whether it is fair) for the employer to institute parallel disciplinary inquiries against an employee.

This issue was recently addressed in the case of Rabie v Department of Trade and Industry and Another (LC) (unreported case no J515/18, 5-3-2018) (Nkutha-Nkontwana J), where Nkutha-Nkontwana J held that pending the finalisation of the ongoing pre-dismissal arbitration proceedings between the parties, the Department of Trade and Industry (the DTI) is divested of its power and prerogative to institute any inhouse disciplinary inquiry against Virgil Rabie (Mr Rabie), including dismissing him consequent to such proceedings.

The facts in the aforementioned matter are briefly as follows: During December 2016, the DTI instituted four charges of misconduct against Mr Rabie. The parties agreed to refer the matter for pre-dismissal arbitration to the General Public Service Sector Bargaining Council (GPSSBC) in terms of s 188A of the Labour Relations Act 66 of 1995 (the LRA). Subsequent to a number of postponements, the matter proceeded on 11 December 2017 with the DTI leading its first witness, Mr Abrahams of Ubuntu Business Advisory and Consulting (Pty) Ltd. During the cross-examination of Mr Abrahams, a version of Mr Rabie’s defence was presented to the effect that he had untruthfully informed his subordinate, Ms Kornizer that the DTI’s service provider had instituted civil action against the DTI as a ploy to put pressure on her to perform as she appeared to be indifferent about her responsibilities in as far as the contract between the DTI and the service provider in question were concerned. Emanating from the abovementioned version put to Mr Abrahams, on or about 30 January 2018, Mr Rabie was served with another notice of disciplinary inquiry to be held in-house, where he was charged with dishonesty and misrepresentation. Mr Rabie attended this disciplinary inquiry on 13 February 2018 and raised a preliminary point to the effect that there was a pending pre-
dismissal arbitration, which pertains to the same subject matter, which ought to run its course, as he could not be subjected to two parallel processes. The Chairperson dismissed Mr Rabie’s preliminary point and ruled that the inquiry should proceed. Consequently on the Chairperson’s ruling, Mr Rabie lodged an urgent application in the Labour Court seeking an order staying the disciplinary inquiry against him, pending the finalisation and outcome of the pre-dismissal arbitration proceedings, as agreed to by the parties and interdicting the DTI from instituting any further disciplinary proceedings against him pending the finalisation and outcome of the predismissal arbitration proceedings held at the GPSSBC.

In granting the relief sought by Mr Rabie, the court held as follows:

‘Pending the finalisation of the pre-dismissal arbitration, the DTI is divested of its power and prerogative to institute any in-house disciplinary inquiry against Mr Rabie, including dismissing him consequent to those proceedings, in terms of section 188A agreement; alternatively, in terms of the doctrine of election. Likewise, in the absence of any right by the DTI to unilaterally institute the in-house disciplinary inquiry, Mr Rabie is entitled to the relief he seeks.’

In reaching the above decision, the court relied on SA Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (2013) 34 ILJ 706 (LC). The court as per Van Niekerk J, held at para 11 as follows:

‘Section 188A (despite its unfortunate title which on the face of it, assumes the outcome of the arbitration hearing) has as its purpose a means of expediting dispute resolution by avoiding duplication between internal and external hearings. In effect, in terms of a tripartite agreement between the employee, the employer and the CCMA [Commission for Conciliation, Mediation and Arbitration], an arbitrator steps into the shoes of the employer and assumes the right normally considered a sacrosanct element of the managerial prerogative – the right to exercise discipline, including the right to dismiss. The benefit for all is the elimination of the duplication that inevitably occurs when court-like in-house hearings are inevitably followed by an arbitration hearing conducted on a de novo basis.’

Van Niekerk J, further held at para 15 as follows:

‘It seems to me from the wording of s 188A that once an employer and an employee consent to refer the determination of allegations of misconduct or incapacity to an arbitration hearing in terms of s 188A, and once the CCMA accedes to the request, the employer effectively agrees to bypass the application of its internal disciplinary procedures and to accelerate the disciplinary process to the stage of the arbitration hearing ordinarily applicable in a post-dismissal phase. That being so, and since the consent of the affected employee and the CCMA is necessary to achieve that result, it is not open to the employer to abandon the process on a unilateral basis.’

The court also relied on Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 2507 (CC) at para 54, where the Constitutional Court referred with approval to Chamber of Mines of South Africa v National Union of Mineworkers and Another 1987 (1) SA 668 (A) where it was stated that:

‘One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternative and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application. A useful illustration of the principle is offered in the relationship between master and servant when there comes to the knowledge of the former some conduct on the part of the latter justifying the servant’s dismissal. The position in which the master then finds himself is thus described by Bristowe J in Angehrn and Piel v Federal Cold Storage Co 1908 TS 761 at 786:

“It seems to me that as soon as an act or group of acts clearly justifying dismissal comes to the knowledge of the employer it is for him to elect whether he will determine the contract or retain the servant. … He must be allowed a reasonable time within which to make his election. Still, make it he must, and having once made it he must abide by it. In this, as in all cases of election, he cannot first take one road and then turn back and take another. Quod semel placuit in electionibus amplius displicere non potest (see Coke Litt 146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an unequivocal act has been performed, that is, an act which necessarily supposes an election in a particular direction, that is conclusive proof of the election having taken place.”

The above statement of the principle may require amplication in the following respect indicated by Spencer Bower Estoppel by Representation (1923) para 244 at 224 – 5:

“It is not … quite correct to say nakedly that a right of election, when once exercised, is exhausted and irrevocable, or in Coke’s phraseology: Quod semel placuit in electionibus amplius displicere non potest, as if mere mutability were for its own sake alone banned and penalised by the law as public offence, irrespective of the question whether any individual has been injured by the volte-face. It is not so. A man may change his mind as often as he pleases, so long as no injustice is thereby done to another. If there is no person who raises any objection, having the right to do so, the law raises none”.’

From the above, it is clear that once an employer has agreed and/or elected to follow the pre-dismissal arbitration route, it may not subsequently institute a parallel disciplinary inquiry against the same employee, pending the finalisation of the said pre-dismissal arbitration. Albeit not declared unlawful by the court, it however, can be accepted that the DTI’s conduct in Rabie’s matter was unlawful (and Rabie satisfied the requirements for an urgent relief), hence the court interfered. As stated above, the facts in this matter concern a situation where the employer and the employee have agreed to a pre-dismissal arbitration process. Thus, it is still not clear whether the same principles will apply in a situation where no pre-dismissal arbitration was agreed on. For instance, what would the position be if during an ongoing in-house disciplinary inquiry, the employer becomes aware of further charges that they could institute against the employee, and instead of adding same to an existing inquiry, decides to institute a second in-house disciplinary inquiry that would run parallel to the ongoing process.

From the face of it, the employer’s aforementioned conduct may appear unlawful. However, on which basis would it be unlawful if the employee’s contract of employment and all the relevant prescripts incorporated in same are silent on the issue? From the looks of things, the employee who finds themselves in this kind of situation may not be assisted by the court in the same manner as Mr Rabie, as the court will most likely be of the view that such an employee’s case is one of procedural unfairness and should be challenged in the relevant bargaining council.

Thapelo Kharametsane LLB (UP) is an attorney at Thapelo Kharametsane Attorneys in Pretoria.

Thapelo Kharametsane Attorneys were the instructing attorneys for the applicant.

This article was first published in De Rebus in 2018 (May) DR 17.