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An employer has the prerogative to institute disciplinary action against an employee who has committed misconduct. This article is based on the backdrop wherein the parties enter into a tripartite agreement in terms of which the employer, the employee and the Bargaining Council/Commission for Conciliation, Mediation and Arbitration (CCMA) undertakes that an arbitrator will be appointed for the process of disciplinary hearing against the employee. In principle, through this process, the employer agrees to by-pass the internal disciplinary process and accelerate the disciplinary process to the stage of the arbitration hearing ordinarily applicable in the post-dismissal stage. This process is legislated under s 188A of the Labour Relations Act 66 of 1995 (LRA). In practice, there are many cases wherein the parties agree to conduct the disciplinary proceedings under s 188A (the tripartite agreement) and the employer subsequently institutes internal disciplinary proceedings unilaterally. In most cases, the employee tends to seek an urgent interdict to halt the parallel disciplinary proceedings imposed on them.
In the tripartite agreement process between the employee, the employer and the Bargaining Council/CCMA, the arbitrator steps into the shoes of the employer and assumes the right – which is normally considered to be an element of the managerial prerogative – to exercise discipline, including the right to dismiss an employee.
The benefit for all the parties involved is the elimination of the duplication that occurs when court-like in-house hearings are inevitably followed by an arbitration hearing conducted on a de novo basis.
An arbitration award made in terms of s 188A is reviewable in terms of s 145 of the LRA. This means that an arbitration award under that section may be reviewed for either –
The defect in the proceedings may, as provided for in s 145 of the LRA, relate to misconduct, gross irregularity or exceeding their powers by the arbitrator (see Mudau v Metal and Engineering Industries Bargaining Council and Others (2013) 34 ILJ 663 (LC)).
In essence, the parties involved enter into a tripartite undertaking to expedite the dispute resolution by by-passing the application of the internal disciplinary process and accelerate the disciplinary process to a platform of an arbitration hearing. This process is advantageous to the employee in the sense that the employer may not impugn the chairperson’s decision in favour of the employee. Instead, the employer may impugn the decision of the arbitrator who conducts the pre-dismissal hearing.
Section 188A provides that:
‘(1) An employer may, with the consent of the employee … request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee.
(2) The request must be in the prescribed form.
(3) The council, accredited agency or the Commission must appoint an arbitrator on receipt of –
(a) payment by the employer of the prescribed fee; and
(b) the employee’s written consent to the inquiry’.
In essence, this is a combination of disciplinary hearings. Furthermore, the employee is not compelled to attend to pre-dismissal arbitration and must consent to partake in such a process.
The matter of Rabie v Department of Trade and Industry and Another (LC) (unreported case no J515/18, 5-3-2018) (Nkutha-Nkontwana J) pertained to an opposed urgent application for an order, firstly, staying the internal disciplinary inquiry instituted by the first respondent, the Department of Trade and Industry (the DTI), against the applicant, Mr Rabie, pending the finalisation and outcome of the pre-dismissal arbitration proceedings instituted by agreement between the parties and held at the General Public Service Sectoral Bargaining Council (the GPSSBC) under case number GPBC615/2017. Secondly, for an order interdicting the DTI from instituting any further disciplinary inquiries against Mr Rabie pending the finalisation and outcome of the pre-dismissal arbitration proceedings instituted by agreement between the parties and held at the GPSSBC under case number GPBC615/2017.
The parties agreed to a pre-dismissal arbitration in terms of s 188A of the LRA under the auspices of the GPSSBC. Consequently, on 30 January 2018, Mr Rabie was served with another notice to attend an in-house disciplinary inquiry on charges of dishonesty and misrepresentation. Nkutha-Nkontwana J held at para 24 that the respondents’ intention was ‘clearly to use the in-house disciplinary [inquiry] to parachute from the pre-dismissal arbitration aircraft, so to speak. It stands to reason that, once parachuted, it would be impossible to go back to the pre-dismissal arbitration. In essence, the dismissal of Mr Rabie consequent the in-house disciplinary hearing would render the pre-dismissal arbitration moot’. Furthermore, the court concluded that ‘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 the 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 [was] entitled to the relief he [sought]’ (see also Kubheka v Member of the Executive Council: Human Settlements (Gauteng Provincial Government) and Another (LC) (unreported case no J280/20, 5-5-2020) (Nkutha-Nkontwana J) wherein the applicant sought an urgent declaration that the second and parallel in-house disciplinary hearing instituted against him, while there was a pending pre-dismissal arbitration in terms of s 188A of LRA, was unlawful. The court held that the Department (respondent) exercised its election to consent to the pre-dismissal arbitration in terms of s 188A of the LRA and consequently waived its prerogative to institute the parallel in-house disciplinary hearing pending the determination of the averments before the pre-dismissal arbitration. Accordingly, the court granted the declaratory order.
When a party (the employee in particular) impugns the parallel disciplinary process, the Labour Court (LC) is brought in to intervene on the inchoate disciplinary process. This raises the vital issue as to whether such an intervention is countenanced. Section 157(5) of LRA provides that: ‘Except as provided for in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act or any employment law requires the dispute to be resolved through arbitration’. Furthermore, s 158(1) of LRA confers on the LC the power to grant urgent interim relief in respect of disputes that must be determined by arbitration. The LC is not vested with powers to intervene in an incomplete disciplinary hearing.
The LC will only intervene in uncompleted disciplinary proceedings if truly exceptional circumstances are shown to exist. Three reasons have been postulated for the LC’s disinclination to intervene in incomplete disciplinary inquiries:
Pertinently, the case of Jiba v Minister of Justice and Constitutional Development and Others [2009] 10 BLLR 989 (LC) para 17, the LC held that ‘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 [inquiry] or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters generally best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under section 145’. See also Booysen v The Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC) at para 44 where the Labour Appeal Court was categorical that the court may only interdict unfair conduct in the course of disciplinary proceedings in ‘the most exceptional of circumstances, where a grave injustice or a miscarriage of justice might otherwise occur’. The trampling on the applicant’s contractual rights arising from the volte-face contrived by the DTI in the Rabie case falls within the ambit of exceptional circumstances, warranting the granting of urgent interim relief staying the workplace disciplinary proceedings (see Rabie (op cit)).
The law of contract confers the right to the contracting party to repudiate by reasons of fraud or misrepresentation, the one having that right must elect whether to affirm the contract or to repudiate it and that once they have elected their option they are irrevocably bound by the election, except in a case of continuing or repeated breach. Relatively, if the parties enter into an s 188A of LRA agreement, one cannot blow hot and cold as each party is bound by the doctrine of election. The conduct of the employers of instituting an internal disciplinary process while the parties have entered into an agreement in terms of s 188A leaves much to be desired (see Hlatshwayo v Mare and Deas 1912 AD 242 at 259).
As a matter of principle, in the circumstance where the employer parachutes the disciplinary process from the pre-arbitration mode (in terms of the tripartite agreement) to the internal disciplinary process, such exercise is tantamount to a breach of contract (see Mchuba v Passenger Rail Agency of South Africa [2016] 6 BLLR 612 (LC)). Furthermore, once the parties consent to refer the matter for determination of misconduct or incapacity to the pre-arbitration hearing in terms of s 188A, and the accredited agency or CCMA accedes to the request, the employer undertakes to accelerate the disciplinary process to the stage of the arbitration hearing. Notably, despite the breach of contract, when the employer decides to resile from the contract in terms of s 188A by instituting an internal disciplinary hearing, the employee is substantially prejudiced in that they will suffer the double jeopardy of attending to parallel processes. Furthermore, such processes have negative financial implications to the employee as one will seek legal assistance on both processes.
This cannot be ameliorated by the fact that the employee is on precautionary suspension or still receives the emoluments. One needs to understand as to what generally triggers employers to institute internal disciplinary processes while there is a pending pre-dismissal arbitration. Firstly, most employers believe that they have an absolute prerogative to institute parallel internal disciplinary process.
Secondly, in some instances matters referred to pre-arbitration process tend to drag quite slowly. In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others [2019] 6 BLLR 524 (CC) the Constitutional Court held that any procedure to discipline the employee should be expedited. We have no doubt in our minds that this is the material purpose of an s 188A agreement, to wit, to accelerate the disciplinary process.
However, the use of the shield of delay as a pretext or unilaterally bailing out from the pre-dismissal agreement is unmeritorious and unjustifiable (see Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761). Furthermore, the interference by the LC to the incoherent disciplinary process (two parallel processes) is allowed as it is an exceptional circumstance. Moreover, by the doctrine of election, the employer is bound by the s 188A agreement and is not allowed to unilaterally withdraw from such a contract by instituting an internal disciplinary hearing.
The weight of authority buttresses the view that the process of a dual disciplinary process cannot be countenanced. The recourse is through urgent relief sought from the LC.
Nicholas Mgedeza BProc (Unisa) Mediation is a legal practitioner at the Office of the State Attorney in Johannesburg and Sipho Mahlangu BCompt LLB (Unisa) is an advocate at the Duma Nokwe Group of Advocates in Johannesburg. The authors wrote the article in their personal capacity
This article was first published in De Rebus in 2020 (Dec) DR 11.
