Case No:
(41/11)
Media Neutral Citation:
[2011] SZIC 11
Judgment Date:
13 April 2011
IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO.:41/11
In the matter between:
SAMUEL SHABALALA APPLICANT
And
REGISTRAR OF INSURANCE AND
RETIREMENT FUNDS 1ST RESPONDENT
LEONARD NXUMALO N.O. 2ND RESPONDENT
CORAM:
N. NKONYANE :JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA : MEMBER
FOR APPLICANT : MR. S.M. SIMELANE
FOR RESPONDENTS : MR. Z.D. JELE
JUDGEMENT 13.04.11
[1] This is an urgent application brought by the Applicant against the Respondents for an order;
“1. Dispensing with the normal and usual requirements relating to manner of service, form and time limits in applications and enrolling this matter as one of urgency in terms of the Industrial Court rules.
2. Condoning any non compliance with the rules of court.
3. That a rule nisi do issue operating with interim and immediate effect calling upon the Respondents to show cause on the 21st February 2011 why prayers 3.1, 3.2, 3.3 must not be conformed and made a final order of court.
- Staying and/or suspending the ongoing disciplinary hearing against the Applicant at the first Respondent’s workplace pending finalization of this application;
- Removal of the second Respondent from being chairman of the hearing with immediate effect and a new chairman be appointed to start the disciplinary hearing de novo.
- Reviewing and / or setting aside the decision and / or findings of the second Respondent in which he found applicant guilty of misconduct dated 4th February 2011.
4. Costs of this application in the event that it is unsuccessfully opposed.
5. Further and / or alternative relief as the court may deem appropriate.”
[2] The application is opposed and an Answering Affidavit and a Supporting Affidavit were filed by the 1st Respondent. The Applicant thereafter filed his Replying Affidavit.
[3] The parties agreed to an order in terms of prayer 3.1. The 1st Respondent raised certain points of law. During the arguments in court the parties were able to also traverse the merits of the case. Further in light of the fact that the parties had already agreed to prayer 3.1, there would clearly be no prejudice on either party in the court making a final order in this matter. In any event, the points of law raised were so inextricably intertwined with the merits of the case as to be practically impossible to argue the points of law without also touching on the merits. For example, one of the points of law raised is that there are no facts to substantiate an application for recusal. Clearly the parties had to interrogate the merits of the case to persuade the Court to uphold or dismiss this point of law. The 1st Respondent raised the following points of law;
a) There is no basis for interference with the internal disciplinary process.
- There are no facts to substantiate application for recusal.
- There are insufficient averments to substantiate the grant of an interdict.
[4] The court will deal with the last point of law first relating to interdict. The 1st Respondent argued as follows to support this point of law;
- The applicant has failed to fulfill the requirements of an interdict. He has failed to show that he has no other remedy other than to approach this court. The Applicant has other alternatives which include the right of appeal.
- The Applicant has failed to show that he will suffer irreparable harm if the disciplinary process were to be completed.
- The Applicant does not have a right to stop a disciplinary process.
- The second Respondent is not obliged by law to keep a record of proceedings. He was not sitting as a body of record or court of record, as such it is incompetent to require him to produce a record of the proceedings
[5] The court will address the above points simultaneously. An accused employee has a right to fair disciplinary process. Confidence in the disciplinary process is an important part of harmonious industrial relations. The right of an accused employee to appeal is only available after the conclusion of the disciplinary hearing. The Applicant would therefore suffer irreparable harm if he were to allow the process to come to conclusion as he would then be open to only one remedy, namely appeal. If the Appeal is dismissed the Applicant would live with the stigma that he was once dismissed by his employer for negligence and poor work performance. This point of law is therefore dismissed.
[6] The second point of law raised was that there are no facts to substantiate an application for recusal. The 1st Respondent argued that;
6.1 There are no primary facts set out which would justify the court comingto the conclusion that a reasonable objective and well experienced industrial relations practitioner like the 2nd Respondent would not be able to bring an impartial mind to bear on the recommendation of an appropriate sanction upon the conclusion of the mitigation.
6.2 There are no cogent facts that have been set out which would warrant that the court draws the inference that indeed the 2nd Respondent has conducted himself in a manner that may show that he is biased in favour of the 1st Respondent or that he is biased against the Applicant.
6.3 The Applicant made bald and unsubstantiated statements but there is nothing to show that the tenets of natural justice with respect to fair disciplinary process have been compromised at the disciplinary hearing.
- The recusal of a presiding officer at a disciplinary hearing is a serious matter and the court should be loath to remove a chairman unless compelling reasons are put forward. The allegations of bias and / or fears of bias must be at the least, reasonable.
- The Industrial Court can only exercise its powers of review of statutory tribunals in exceptional and compelling circumstances. The 2nd Respondent was not sitting as a statutory tribunal, and as such, his actions are not subject to review by the Industrial Court.
- There are no primary facts to suggest that a reviewable irregularity has been committed by the 2nd Respondent. The Applicant’s contention on the alleged irregularities do not indicate that there has been a consequential irregularity.
[7] The court taking into account all the evidence before it will come to the conclusion that the applicant did show in his papers that the tenets of natural justice with respect to fair disciplinary process have been compromised at the disciplinary hearing. This point of law is also dismissed.
[8] The first point of law that there is no basis for interfering with the internal disciplinary process will also be dismissed by the court. The reasons will appear in the Court’s reasons for the judgement hereunder.
[9] It is now a trite principle of labour law that the Industrial Court will not lightly interfere with the employer’s internal disciplinary proceedings. The exception to this principle of law is that where however there are compelling and exceptional circumstances justifying the court to interfere, the court will do so.
See:-Sazikazi Mabuza v. Standard Bank
of Swaziland Limited & Another,
Case No. 311/2007 (IC).
Walhaus v. Additional Magistrate
Johannesburg1959 (3) S.A. 113
It follows therefore that whether the court will intervene depends on the facts and circumstances of each particular case. The court’s enquiry in this matter therefore is whether the Applicant has shown that this case is one of those rare or exceptional cases where a grave injustice might result if the chairperson were allowed to continue with the disciplinary hearing.
[10] The facts of the case before the court show that the Applicant is an employee of the 1st Respondent. He is presently facing charges of gross negligence and poor work performance preferred against him by the 1st Respondent. The chairperson of the disciplinary hearing is an independent person not in the employ of the 1st Respondent. The disciplinary hearing is nearing completion. A verdict of guilty has already been returned by the 2nd Respondent. The disciplinary hearing is now at the stage where the chairperson is to hear mitigation by the Applicant before sanction is meted out. During the course of summarizing his reasons for the finding of guilty, the chairperson made some remarks or observations which the Applicant is arguing that they showed that the chairperson is now predisposed to giving him a sanction of dismissal, and that therefore there will be no point in going to the next stage of the hearing with the present chairperson presiding over the matter.
[11] The statements complained of by the Applicant appear on page 14 of the 2nd Respondent’s judgement, Annexure “SS4” of the Founding Affidavit. The chairperson made the following statements;
“I have thoroughly considered all the facts and evidence submitted in this case. I am persuaded by the totality of the evidence in this case that the employer cannot be expected to continue with an employment relationship in which the employee cannot perform according to the employer’s expected standard of work. In the same breath, I must also stress that the accused’s approach of relying on technical defences in the face of serious allegations and evidence of poor work performance has not helped his case. The appropriateness of imposing stern disciplinary action in this regard is underscored by his abject refusal to acknowledge wrongdoing during the disciplinary hearing. In my view the Accused Employee’s conduct warrants a finding of a serious misconduct. I have no doubt there is a real and convincing evidence to support the complainant’s case. Again, I have no hesitation that the Accused is not subject of any victimization.”
[12] It is these statements or part of the 2nd Respondent’s judgement that the Applicant argues shows that the 2nd Respondent has already concluded in his mind that the employer should not continue with him under its employment. Mr. Jele argued on behalf of the 1st Respondent that these statements are not indicative of bias or negligence. He argued that these are factual findings.
[13] The main argument by the Applicant before the court is that because of this position taken by the chairperson, he has prejudged the matter before he has heard the Applicant’s submissions in mitigation.
[14] As already pointed out, confidence in the disciplinary process is an important part of harmonious industrial relations and the avoidance of conflict at the workplace. Every hearing of a disciplinary nature must not only be a fair hearing it must also be seen to be a fair hearing.
See: Graham Rudolph v. Mananga College
& Another, case no. 94/2007 (IC).
[15] Mr. Jele argued further that it was normal for a presiding judge to form a prima facie view of the issues during the hearing of a matter and that that was not necessarily indicative of bias. The statements by the chairperson in this case however were not just passing comments. These were the findings by the chairperson after he had reviewed all the evidence before him. The statements were not therefore a prima facie view of the chairperson. They were his findings and conclusion based on the facts that he found proved before him. The chairperson should have limited himself on making findings that from the facts before him, he was persuaded to come to the conclusion that the Applicant was guilty of the charges. At this stage the enquiry was whether the Applicant was guilty of the charges or not. It was clearly grossly irregular for the chairperson at this stage to also conclude that the employer could not be expected to continue with an employment relationship with the Applicant. The court is satisfied, having regard to the evidence that is before it that the chairperson compromised his position when he made these statements before he has heard the Applicant in mitigation. Because of this conduct of the chairman, the disciplinary hearing cannot be seen to be a fair process. A disciplinary hearing must not only be a fair process it must also be seen to be a fair process.
[16] Further, if the chairperson were now to arrive at a different sanction other than that of dismissal which he has already expressed himself on, he may be perceived to have been intimidated by the Applicant’s action of applying for his recusal. If he returns a sanction of dismissal, it would be perceived as a foregone conclusion in the light of his statements. It is therefore in the interest of both parties that the chairperson should recuse himself from this matter. Mr. Jele also argued that the hearing was nearing completion and to have the matter start de novo would be expensive for the employer. The view of the Court however is that convenience cannot be allowed to take precedence over the requirements of fairness and justice.
[17] The court having come to the conclusion that the 2nd Respondent compromised himself, it follows that the question of review falls away. The court taking into account all the evidence before it and the submissions by counsel, will make an order in terms of prayer 3.2 of the Notice of Motion. Each party is to pay its own costs.
The members agree.