Labour Court Intervention in Disciplinary Enquiries
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Riaan Booysen (“Booysen”) launched an urgent application in the Labour court on 12 February 2008 to postpone the continuation of a disciplinary enquiry against him on 13 February 2008, pending a review of the chairperson’s ruling on 6 February 2008 that he was fit and capable to attend his disciplinary hearing. Cheadle AJ in the court a quo found that the Labour court did not have jurisdiction to intervene in incomplete disciplinary proceedings and dismissed Booysen’s application with costs. On appeal the LAC was tasked with considering whether the Labour Court has jurisdiction to intervene in matters which may be referred to Mediation, Conciliation and Arbitration, and whether the Labour Court did in fact have jurisdiction to intervene in disciplinary proceedings. The LAC found that the Labour court does in fact have jurisdiction to interdict any unfair conduct, including disciplinary action, in deserving situations. The question and issue to be determined is whether the LAC was correct in its findings.

 

ANALYSIS OF FINDINGS OF THE COURT A QUO AND THE LAC:                   

 

Cheadle AJ in the court a quo found that only the CCMA or a Bargaining Council has jurisdiction to determine the procedural fairness of a dismissal relating to conduct in terms of Section 157(1) of the LRA and the Labour Court therefore has no jurisdiction to review and interdict the conduct of disciplinary proceedings. The Learned Acting Judge found further that overseeing the conduct of disciplinary enquiries whilst they are still underway is costly, time consuming, and may not be necessary and further that the Labour court does in fact have the inherent powers of the High court, but only in matters which fall within its jurisdiction, and the Labour court’s jurisdiction does not include jurisdiction interfering with disciplinary hearings.

The LAC relied on the provisions of Section 157 and Section 158 of the LRA as well as Section 77(3) of the Basic Conditions of Employment Act 75 of 1997 in finding that the Labour court does have jurisdiction to intervene in matters not specifically assigned to it in terms of Section 157 of the LRA as well as those matters that would be referred to conciliation, mediation and arbitration. The LAC found further that there are many instances where the Labour court has deemed it necessary to intervene in deserving situations and that judicial intervention may well save time and prevent costly litigation if the process which is deemed to be unfair does not continue because of the Labour courts intervention. The LAC found however that such intervention should only be exercised in exceptional circumstances, is at the discretion of the Labour court, and is based on the facts of the each particular case.

 

Both the court a quo and the LAC considered the case of Maropane V Gilbeys Distillers and Vintners (Pty) Ltd & Another however the court a quo interpreted the case to mean that an employee does not have any rights to a fair ‘pre-dismissal’ hearing before the employee is actually dismissed. The LAC took a different view and found that the Labour court in Maropane did not find that it lacked jurisdiction to hear the matter but found that Maropane had not established a prima facie right to the relief sought and had alternative remedies to address his alleged unfair procedure other than through the Labour court.

 

Both the court a quo and the LAC also considered the case of Mantzaris v University of Durban-Westville & Others wherein the Labour court found that in terms of Section 158(1) (g) of the LRA the Labour court does not have jurisdiction to review internal disciplinary proceedings but does have jurisdiction to interdict incomplete disciplinary proceedings in the most exceptional circumstances – where a grave miscarriage of justice may occur. A further case considered by the LAC which confirmed that the Labour court does have jurisdiction to interdict any unfair conduct of an employer at any time was Nxele v Chief Commissioner, Corporate Services, Department of Correctional Services & others.

 

CONCLUSION:

 

Having considered the LAC’s decision as well as the findings of the court a quo, the LAC concluded that the Labour court has jurisdiction to intervene in any matter not specifically assigned to it in terms of the LRA, provided that such matter falls within the scope of an employment relationship and the merits of the matter warrant such intervention. The LAC was of the view that Cheadle AJ in the court a quo should not have dismissed Booysen’s application on the basis of no jurisdiction and should have determined the application on the merits. The matter was therefore remitted back to the Labour court for determination

Warren Sundstrom 

 

McLarens hosted on Cliff Central

160927-laws-of-life-2

Nuno Palmeira our family law practitioner was hosted by Cliff Central this afternoon.

The topic under discussion was “The Rights of Grandparents in respect of their Grandchildren” ie what rights do grandparents have to care and contact and what are their obligations to their grandchildren in respect of support.

Click here to listen to the podcast

McLarens Attorneys celebrates its 30th anniversary

This September McLarens Attorneys celebrates its 30th birthday.

From its humble beginnings in Delvers Square, Kerk Street Johannesburg McLarens has grown into a boutique Law firm with five Attorneys, one Candidate and four support staff.

McLarens offers expert services in Commercial Law, Company Law, Property Law, Employment Law, Wills Trusts deceased estates and Family Law.

Our clients range from Multinational Corporations, local Business to the man in the street.

We are extremely proud of our journey and mindful of the fact that successes would not be possible without the support of our loyal staff and clients.

We look forward to being of service for many years to come.

Ian McLaren
Senior Partner
1986-2016

MAINTENANCE: THE GRANDPARENTS DUTY OF SUPPORT

Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services.  In addition our common law provides that both parents have a legal duty to support their children according to their means.

A large majority of the public considers the legal obligation of maintenance to only be the responsibility of the parents of the child and that no one else can have the legal obligation placed upon them. This is incorrect.

While the legal obligation to maintain a child primarily rests on the parents of the child in question it is accepted that other relatives of the child have to support the child in circumstances where a parent is deceased or unable to support/maintain the child.

In circumstances where a parent is deceased or unable to support/maintain their children the general rule is that the support/maintenance must always be sought from the nearest relative to the child, and only if that support/maintenance is not forthcoming from that relative, then it can be sought from more remote relatives.

As a result of the accepted common law principles, our courts have held that there is a reciprocal duty of support between grandparents and their grandchildren (Barnard v Miller 1963 (4) SA 426 (C)), and that if parents are not able to support their children, the duty of support falls on paternal and maternal grandparents of the child (Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E)).

Accordingly in South Africa there can be no doubt that both maternal and paternal grandparents can be required to support/maintain their grandchildren, but it must always be remembered that this can only happen in circumstances where a parent is deceased or unable to maintain their child themselves. In this regard it has been held by some of our courts that grandparents can defend maintenance claims against them by insisting that the claims first be pursued against a parent.

NUNO PALMEIRA