Background

The background to this matter is important for understanding the Labour Court’s finding:

• A disciplinary hearing was initiated against Strydom on 31 January 2023, and he was placed on precautionary suspension with full pay. The disciplinary hearing was set down for 6 and 7 February 2023, and Strydom was informed that he would be entitled to have legal representation, which he and ArcelorMittal each then secured.
• ArcelorMittal’s representative was not available to proceed with the hearing on 6 and 7 February 2023.
• The disciplinary hearing was then set down for 26 May 2023, on which occasion Strydom was unrepresented and the hearing did not proceed. By agreement between the parties, the disciplinary hearing was rescheduled to 29 June 2023.
• On 29 June 2023, before the disciplinary hearing commenced, Strydom’s representative, Advocate Nel, raised a number of preliminary issues. The disciplinary hearing was adjourned to decide these issues and, after they were dismissed, the hearing was set down to proceed on 21 and 22 August 2023 and 4 and 5 September 2023. ArcelorMittal’s main witness was not available from 13 to 29 August 2023 and the hearing could not proceed on 21 and 22 August 2023. The parties agreed that the disciplinary hearing would continue on 4, 5, 27 and 28 September 2023.
• On 4 September 2023 Nel raised three preliminary points, which were all dismissed by the chairperson on 5 September 2023. The matter was then postponed to 27 and 28 September 2023. On 27 September 2023 Nel made an application for the disciplinary hearing to be terminated and for the matter to be referred to the Commission for Conciliation, Mediation and Arbitration in terms of the provisions of section 188A (11) of the Labour Relations Act 66 of 1995. The chairperson dismissed the application on 28 September 2023 and ArcelorMittal called its first witness.
• After the first witness concluded their evidence, the matter was postponed by agreement to 20 to 23 November 2023, for the cross-examination of the first witness and for ArcelorMittal to call more witnesses.
• Nel cross-examined the first witness over three days (20, 21 and 22 November 2023) and the re-examination was concluded on 23 November 2023. ArcelorMittal’s second witness was called and after evidence was concluded, cross-examination started, and the hearing was postponed for the finalisation of the witness’ cross-examination.
• The parties and the chairperson agreed that the matter be postponed to 1 to 4 and 10 and 11 February 2024.

Repeated delays

It is clear from these facts that there were inordinate delays to the disciplinary process, particularly due to the matter being made unnecessarily complicated by Strydom’s legal representative. Accordingly, ArcelorMittal sent correspondence to Strydom explaining this and suspending him without pay on 5 December 2023. Strydom then approached the Labour Court.

The Labour Court ruled that it had no jurisdiction to hear the matter given that Strydom had already referred a dispute regarding his suspension to the Metal and Engineering Industries Bargaining Council (MEIBC), including his suspension without pay dispute, which is pending before the MEIBC. He further failed to point to the specific provision of any other law that confers jurisdiction on the Labour Court to adjudicate his unlawful suspension dispute.

Finding on suspension in these circumstances

What is interesting about the judgment, however, is that the judge included an obiter regarding the issue of unpaid suspension in these circumstances. The obiter highlighted that disciplinary hearings are to be conducted simply and expeditiously and should not adopt the complicated criminal justice model. The Court also stated that when an employee is suspended pending a disciplinary hearing, due to a delay where the suspension is extended for an unreasonably long period as a result of the employee’s requests for postponement or other reasons causing a delay and related to the conduct of the suspended employee, it would be unfair to apply the general principle that a suspended employee is entitled to full pay. The Court noted that there were previous arbitration awards where it was confirmed that an employer was entitled to place an employee on unpaid suspension due to delaying tactics.

In addition, the Labour Court held that the interests of justice required that Strydom pay 20% of ArcelorMittal’s legal costs.

This case clearly demonstrates that disciplinary hearings should be concluded expeditiously and with minimal legal technicalities.

In addition, suspended employees facing disciplinary action cannot be allowed to find reasons or to employ tactics to delay the disciplinary proceedings at the employer’s cost, as that would constitute an abuse of process. Employers should consider including the right to suspend without pay in their disciplinary codes and procedures.

CDH published an alert in 2017 regarding suspension without pay due to delay tactics, which can be accessed here.