TSHISHONGA v MINISTER OF JUSTICE & CONSTITUTIONAL DEVELOPMENT & ANOTHER JR898/2004– case note.
This is the judgment on a point in limine raised where the Labour Court had to decide whether or not it was bound by the findings of the preceding disciplinary enquiry.
The Applicant in the matter is the deputy director-general of the Department of Justice and Constitutional Development. He was suspended on charges of misconduct for making disclosures to the media. At the disciplinary hearing it was determined that the Applicant had made protected disclosures and as a result could not suffer any occupational detriments for making the said disclosures.
The Applicant argued that the findings of the disciplinary hearing could not be challenged by the Respondent and that the Respondent was accordingly bound to those findings. The Respondent on the other hand contended that they were neither entitled nor obliged to review a decision of an internal disciplinary enquiry and further that they were not bound, for the purposes of the trial, by the findings of the enquiry.
The court held that the record of the disciplinary enquiry itself is only relevant as evidentiary material. It can thus be used for the purposes of cross-examination and to asses the credibility of witnesses as well as the cogency of the respective versions of the parties.
In terms of s4 of the Public Disclosures Act, an occupational detriment short of dismissal is deemed to be an unfair labour practice and any dispute in relation thereto must follow the procedure set out in the LRA and may be referred to the Labour Court for adjudication, which will be a trial de novo. On this basis, the Labour Court cannot be bound by the results of the preceding disciplinary enquiry.
In obiter, Musi J stated: “In my view, a different approach may have been called for had the applicant formulated his claim differently. Such would have been the case for instance, if he had sought from the Court an order compelling the Respondent to pay him the salary he would have earned for the duration of the suspension and the legal costs he incurred in contesting the charges at the disciplinary enquiry, this inevitably flowing from the determinations made by the disciplinary tribunal.”
Therefore, in terms of this judgment, where a matter is brought to the Labour Court, in terms of section 191 of the Labour Relations Act, the trial will be conducted de novo and the decision of a prior disciplinary enquiry will not be binding on the Labour Court.