Can I Go Straight to the Labour Court if I have been Unfairly suspended?

The short answer is ‘no.’ It is only the Commission for Conciliation Mediation and Arbitration (“CCMA”) or a bargaining council that has jurisdiction to entertain suspension disputes. The Labour Court generally does not have jurisdiction in matters of unlawfulness, particularly when it comes to an allegation of an unlawful suspension. Once the CCMA has made a finding of unfairness, the arbitrator may then determine the dispute on terms that the arbitrator deems reasonable.

However, the Labour Court does have the power to order interim urgent relief in terms of section 158 (1) of the Labour Relations Act 66 of 1995 (“the LRA”) and may review and set aside a decision in terms of section 158 (h) of the LRA. What this means practically is that if an employee believes that they have been suspended unfairly, for instance being suspended without being given proper reasons for the suspension or being suspended for an unreasonably long period, an employee may approach the Labour Court directly and ask for the following:

• Lifting of the suspension.
• Reinstatement into your previous position.

Despite the wide powers conferred to it in section 158 of the LRA, the Labour Court is loath to deal with suspension disputes - especially on an urgent basis. The statutory provisions relating to the jurisdiction of the Labour Court and it’s attitude towards matters of unlawfulness are discussed below.

Section 157 & 173 of the LRA: Jurisdiction of the Labour Court

Section 157 (4) of the LRA states that the Labour Court may refuse to determine any dispute, other than an appeal or review before the court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation. The phrase “may refuse” in section 157 (4) of the LRA therefore gives the Labour Court a wide discretion to decline to hear matters which the Court believes must be disposed of at the CCMA or bargaining council.

Subject to the Constitution and section 173 of the LRA, and except where the LRA provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or in terms of any other law are to be determined by the Labour Court. What this means is that when a litigant refers a dispute to the Labour Court for adjudication, the applicant must point to a provision of the LRA or other law that confers jurisdiction on the Labour Court to adjudicate the matter.

Appropriate forums for unfair suspension disputes

In terms of section 186 (2) of the LRA, unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving (among other acts) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

For an employer to prove that a suspension is justified (whether it is a precautionary suspension or a suspension as a form of disciplinary action) there must be a prima facie reason to believe that the employee committed serious misconduct. In the absence of a reasonable apprehension that an employee has fallen foul of the employer’s code of conduct and/or that their continued presence at work will worsen the situation, the likelihood of the suspension being unlawful is heightened. A suspension can also be unfair where an employer has not complied with policies, collective agreements and regulations relating to suspensions.

Aside from their inherent statutory jurisdiction, the CCMA or applicable bargaining council is more than competent to hear unlawful suspension disputes. These forums must be considered by all litigants as the forum of first instance to hear disputes relating to unlawful suspensions.

Pronouncements made by Moshoana J at the Johannesburg Labour Court

On 4 October 2021, an employer’s forensic investigation revealed that one of its employees had committed serious acts of misconduct including the theft of some of the employer’s material. The employee was initially charged in December 2021. The disciplinary hearing was set down for the 13^th and 14^th of April 2022.

On 26 April 2022 the employee issued motion proceedings in the Labour Court for an order that, inter alia, his suspension be lifted on the basis that it was unlawful (“the first application”). Due to the employee’s alleged ill health, the disciplinary hearing was re-scheduled to the 18^th and 19^th of May 2022. Upon receiving notification of the new dates for the disciplinary hearing, the employee brought an urgent application at the Labour Court interdicting the disciplinary hearing set down for 18^th and 19^th of May 2022. The employee asked the Labour Court for an order to stop the disciplinary hearing, until such a time as the first application was heard. The employee further wanted the court to declare that any subsequent setting down of the disciplinary hearing was unlawful.

After having heard counsel on the morning of 18 May 2022, the Honourable Justice Moshoana J (“the Judge”) ordered a dismissal of the urgent application for want of jurisdiction. The employee was further ordered to pay the costs of the application on an attorney and own client scale. The Judge gave the following reasons for his judgement:

• An interdict is a special relief that exists to prevent an unlawful conduct. When an employer wants to conduct a disciplinary hearing, this cannot amount to unlawfulness. In fact, it promotes the principle of audi alteram partem (hear the other side).
• The Labour Court cannot be asked to micro-manage and/or stop a disciplinary hearing, just because there is an inkling of a pending application which seeks to declare a suspension unlawful.
• The Labour Court does not have jurisdiction to hear matters of unlawfulness in terms of section 157 of the LRA. The Labour Court only deals with issues of unfairness, which unfairness is spelled out in the LRA.
• The Labour Court is faced with many matters like this. Legal practitioners should be careful of approaching the Labour Court on an urgent basis.

In conclusion then, albeit the Labour Court does have the power to grant interim urgent relief, an employee should not consider the Labour Court as a forum of first instance in disputes of unlawful suspension.

MBA Incorporated has a well-established and thriving labour law team, with seasoned litigators. We have successfully dealt with an array of corporate clients and individual clients and we are ready to assist you in whatever employment dispute you need resolved expeditiously.