In George v Nyoka and Others, the Labour Court was confronted with yet another attempt by an employee to avoid and delay his disciplinary hearing. In this case, the applicant, Mr George, was employed in a senior position by the respondent municipality as the Director of Community Services.
On 4 August 2022, the applicant was served with a notice to attend a disciplinary hearing to answer several charges of gross dishonesty. During the disciplinary proceedings, which commenced on 17 August 2022, the applicant and his legal representative adopted every possible conceivable strategy to avoid and delay the disciplinary hearing, including:
- Requesting and causing numerous postponements over a period of approximately six months on various grounds, including failure by the municipality to provide a bundle timeously; the discovery of further particulars and documents; the unavailability of the legal representative; the need for more time for the legal representative to prepare; the withdrawal of the applicant's legal representative when the chairperson refused yet another application for postponement; the need for the applicant to source another legal representative; and the applicant appearing at the hearing unrepresented.
- Failing to provide a bundle of documents or attend the pre-hearing meeting, despite dates for both being scheduled and rescheduled by the chairperson of the hearing on multiple occasions.
- Failing to attend the disciplinary proceedings on the basis of a medical certificate which was entirely inadequate as it simply indicated that consultations were held with the applicant and that sick leave was recommended for the exact dates on which the applicant was due to appear at the hearing and did not in any manner indicate what was wrong with the employee to prevent him from attending the hearing.
- Raising preliminary points which challenged the authority of the chairperson to preside over the hearing.
- Refusing to cross-examine the municipality's witness, proceed with his own case or call his witnesses.
After the disciplinary hearing was concluded, but before the chairperson handed down a finding some six months after the commencement of the disciplinary hearing, the applicant launched an urgent application in which he asked the Court to declare the appointment of the chairperson of his disciplinary hearing null, void and unlawful. Alternatively, he requested the appointment be set aside and sought an interdict to halt the disciplinary hearing from proceeding.
The Court refused to grant such an order. In addition to describing the applicant's pleadings as "shoddy and convoluted", the Court found that the applicant's pleadings were fatally defective as he had failed to establish the court's jurisdiction to intervene in the matter. In addition, the Court found that the urgency of the application was self-created; that he had misrepresented the true status of the disciplinary hearing by failing to disclose to the court that all that was pending was the chairperson's outcome of the proceedings; and, that he had approached the court to avoid his disciplinary hearing.
When addressing the issue of costs, the Court highlighted its exhaustion with having to deal with cases that involve senior employees facing serious allegations of misconduct whose aim is to wish them away. It noted that in other cases that have come before the Court on the urgent roll, cost orders have been awarded against the applicants. It found that the manner with which the applicant had brought the application before the Court, and its conduct in bringing it, was mala fide, vexatious and reprehensible. The intention had not only been to avoid the disciplinary hearing but also to cause the municipality the irritation of having to defend a baseless application. By doing so, the applicant had abused the Court's process.
During the course of the judgment, the Court took issue with the conduct of the employee and his representative in seeking to delay the conclusion of the disciplinary enquiry and saw the court application as yet another attempt to avoid its conclusion. With misguided legal muscle behind him, the applicant had taken all measures necessary to stall and avoid answering the serious allegations of misconduct against him.
The Court described these strategies as pretentious, noting that they came back to bite the employees when claiming urgency before the Court; strained the Court's resources; imposed financial burdens on already financially depleted municipalities; contradicted the primary purpose and objectives of the Labour Relations Act; and, in this case, were a reflection and a dose of déjà vu of the strategies used by the applicant.
The Court acknowledged that the applicant's conduct throughout his disciplinary hearing it, assisted and encouraged by his legal representative, ought not to influence the reasoning of the Court when considering a costs order, but highlighted that this conduct continued to play itself out in the urgent Court proceedings.
Ultimately, the Court ordered costs against the applicant on an attorney and client scale, which the Court noted is an extraordinary scale which should be reserved for cases where it can be found that a litigant conducted itself in an unquestionably vexatious and reprehensible manner. It also indicated that, if the municipality had requested such an order it would have considered the payment of costs de bonis propriis.
This case, as with so many others like it, serves as valuable guidance to employees, employers and chairpersons to the effect that:
- The Court will not ordinarily interfere with an employer's internal disciplinary proceedings. It is specifically required of an applicant to demonstrate exceptional circumstances necessitating such intervention, and also to demonstrate that grave injustice will result should the Court not intervene.
- The Court views employees and their legal representatives, who deploy every tactic imaginable to avoid and delay disciplinary hearing processes, and then abuse Court processes, with ire and frustration.
- Misguided employees and legal representatives alike should be wary of abusing court processes as it may result in hefty cost orders.
- Employers and chairpersons should be familiar with the rights of employees in terms of the Labour Relations Act to be dismissed for substantively fair reasons and in accordance with a fair procedure.
- Employees' rights do not include the right to a have a disciplinary hearing continue indefinitely or postponed for every reason conceivable.
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