Can the Labour Court interdict a disciplinary hearing?

Many employees who are facing disciplinary action are tempted to approach the Labour Court to interdict a disciplinary hearing (i.e. prevent it from proceeding). This involves launching an urgent application in the Labour Court for an order requiring that the hearing not proceed.

The most common basis for seeking such an interdict, is that the employer or the disciplinary chairperson is acting procedurally unfairly in some or other respect. Examples of this include an instance where an employee claims that he or she is entitled to further information or evidence which the employer has not provided, or where the employee claims that he or she has not been given sufficient time to prepare.

Generally, the Labour Court is very reluctant to grant an order to interdict a disciplinary hearing and thus interfere with the employer’s prerogative to take disciplinary action. A successful interdict requires the employee to show that there are special circumstances which warrant its intervention. This is a very high threshold, as the general view of the Labour Court is that if there is any procedural unfairness in a disciplinary hearing, that should be challenged after the hearing if the employee is dismissed, as part of an unfair dismissal dispute in the CCMA.

Examples of instances in which such interdicts have been granted, include cases where the hearing is taking place contrary to an agreement. For instance, if the employee’s employment contract requires the disciplinary proceedings to take the form of a hearing before an arbitrator instead of taking the form of a traditional internal disciplinary hearing. Such agreements may be concluded in terms of section 188A of the Labour Relations Act, and the process involves a CCMA commissioner hearing the case (instead of a disciplinary chairperson).

Where employees approach the Labour Court to interdict disciplinary proceedings against them, and do not have good grounds to do so, the Labour Court may grant an adverse costs order against such employees. This requires the employee to cover the costs not only of his or her own legal representative, but also of the employer’s legal representative.

Employees should therefore be cautious in approaching the Labour Court to interdict a disciplinary hearing.