Out of Court Settlement for a Broadcasting Company

Client

The local broadcasting Corporation (the employer)

The Situation

The Employee made two protected disclosures at a board meeting. Following these disclosures, the Employer suspended the Employee for a period of 60 days on full pay and benefits. Additionally, the Employee was charged with alleged misconduct and was to attend a hearing into the said allegations.

What We Did

During the consultation, the Axis consultants realized that the hearing could effectively not proceed in light of Section 188A (11) of the Labour Relations Act. An Unfair Labour Practice dispute was immediately referred to the CCMA in terms of the aforesaid section.

The section reads: ““Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an enquiry be conducted in terms of the section into allegations by the employer into the conduct or capacity of the employee”.

In light of this referral the matter now fell within the jurisdiction of the CCMA and the chairperson of the hearing effectively lacked jurisdiction to hear the matter.

At the hearing a point in limine was raised relating to the chairperson’s jurisdiction. In this regard a number of cases were relied upon. The Court in Letsoalo and another v Minister of Police and others; TRC Sesing v Minister of Police and others dealing with an urgent application to halt disciplinary proceedings, endorsed the view that an Unfair Labour Practice referral in terms of section 188A(11) would halt the disciplinary proceedings. The Court’s view was also expressed in the Majola, Bonga Baldwin v Member of the Executive council roads and Transport and Others. and Minikwela Nxele v National Department of Correctional Services and others. (Minikwela)

In Minikwela the court held “[32] Basically, following a section 188A(11) request, by the employee, the employer is enjoined to institute a pre-dismissal arbitration in terms of 188A The internal disciplinary enquiry, that would have commenced and is pending must terminate…”

Arguments were also made that the disclosures were protected in terms of section 1 of the Protected Disclosures Act and that the disciplinary hearing was in fact an occupational detriment.

In this regard the court in Minikwela held: An occupational detriment, in relation to an employee or worker means inter alia, being subjected to any disciplinary action being dismissed, suspended, demoted, harassed or intimidated. Furthermore, in Grieve v Denel (Pty) Ltd, The Court held that disciplinary action against Grieve could constitute an occupational detriment and that prima facie, Grieve was entitled to relief.

The Chairperson postponed the matter to allow for the Employer to serve and file their heads on the in limine and for the Employee to attend to his replying heads and to allow the Chairperson an opportunity to make a finding.

During this period, the Unfair Labour Practice dispute re: the unfair suspension matter was set down for arbitration at the CCMA.

Although the Employee was suspended on full pay with benefits. He was not paid. The courts have indicated that a suspension must be on full pay. In Koka v Director-General: Provincial Administration North West Government. (“Koka”) Whatever the reason therefore unilateral suspension of the contract by the employer does not relieve the employer of its duty to pay the employee. In Sappi Forests Pty Ltd v CCMA & others Judge Pillay at paragraph 8 held that “the position at common law has always been that an employer who suspends without pay commits a breach of the contract of employment. An employer may suspend an employee without pay if the employee so agrees or legislation or a collective authorises suspension.” On the merits the Employee had good prospects of success.