Loading in 2 Seconds...
Loading in 2 Seconds...
INTERDICTING SUSPENSION AND THE DISCIPLINARY ENQUIRY: The Role of the Labour Court Shamima Gaibie Cheadle Thompson & Haysom Inc. Suspensions. DEFINITION OF UNFAIR LABOUR PRACTICE
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
INTERDICTING SUSPENSION AND THE DISCIPLINARY ENQUIRY: The Role of the Labour Court
Shamima GaibieCheadle Thompson & Haysom Inc.
DEFINITION OF UNFAIR LABOUR PRACTICE
THE DETRIMENTAL EFFECT OF SUSPENSIONS
“..... trend apparent in this court in which employers tend to regard suspension as a legitimate measure of first resort to the most groundless of misconduct, or worse still, to view suspension as a convenient mechanism to marginalise an employee who has fallen from favour.”
“The freedom to engage in productive work – even where that is not required in order to survive – is indeed an important component of human dignity ... for mankind is pre-eminently a social species with an instinct for meaningful association. Self esteem and the sense of self-worth – the fulfilment of what it is to be human – is most often bound up with being accepted as socially useful.”
SUBSTANTIVE AND PROCEDURAL FAIRNESS
JUSTIFIABLE REASON TO BELIEVE THAT EMPLOYEE HAS ENGAGED IN SERIOUS MISCONDUCT
JUSTIFIABLE REASON TO DENY EMPLOYEE ACCESS TO THE WORKPLACE
“The nature, likelihood and the seriousness of the alleged misconduct will always be relevant considerations in deciding whether the denial of access to the workplace was justifiable” : Gradwellat para .
“The justification put forward by the first respondent for suspending the applicants, namely, that their continued presence in the workplace could potentially jeopardise the investigation, is reasonable in light of the serious nature of the charges brought against them.”
“... Halton Cheadle has observed that suspension is the employment equivalent of arrest, with the consequence that an employee suffers palpable prejudice to reputation, advancement and fulfilment. On this basis he suggests that employees should be suspended pending a disciplinary enquiry only in exceptional circumstances. The only reasonable rationale for suspension in these circumstances, Cheadle suggests, is the reasonable apprehension that the employee will interfere with any investigation that has been initiated, or repeat the misconduct in question.”
“The purpose of removing an employee from the workplace, even temporarily and on full pay, must be rational and reasonable, and must be conveyed to the employee concerned in sufficient detail to enable the employee to compile the representations that he or she is invited to make in a meaningful way. Of course there are those instances where precautionary suspension is a necessary measure, and where the reasons to remove an employee from the workplace as a precautionary measure are compelling. But those cases will be the exception rather than the norm.”
OPPORTUNITY TO BE HEARD
The source of the right
The nature and the extent of the right
INFORMATION ABOUT ANCILLARY ASPECTS OF THE SUSPENSION
Period of suspension
Injury to reputation or stigma
Suspension without pay
Failure to be heard
Substantive basis for the suspension
When urgent proceedings are appropriate
SOURCE OF THE POWER TO INTERDICT DISCIPLINARY PROCEEDINGS
WHEN WILL THE LABOUR COURT INTERVENE IN SUCH PROCEEDINGS?
“it should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.” [para 54 Booysen]
EXAMPLES OF POSSIBLE INTERVENTION IN DISCIPLINARY PROCEEDINGS
Discrimination and Interference with trade union activities
Reason for the institution of disciplinary proceedings
Biased or unqualified presiding officer
“Where a person in truly extraordinary circumstances .... approaches the Labour Court on the basis that a disciplinary inquiry was for instance, about to commence or was conducted in the hands of a biased or unqualified presiding officer, or another factual basis so serious as to vitiate in law the enquiry, I have little doubt that the labour court would in law exercise these powers to stop it.” [quoted in Booysen para 53]
Applications to challenge preliminary rulings (eg: the authority to institute disciplinary proceedings)
UNDESIRABILITY OF INTERVENING IN UNCOMPLETED DISCIPLINARY PROCEEDINGS
“asking the court to bypass the bargaining council and to ignore its role in a carefully crafted scheme that acknowledges and gives effect to the value of self-regulation. This court, through its review powers, is mandated to exercise a degree of oversight over labour-related arbitrations – its powers as a court of first instance are constrained by the LRA, and that constraint must be respected.” [Jibapara 12]