“It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee.”
LC: Labour Court
Drum City (Private) Limited v Brenda Garudzo is a matter that makes a case for the need to join employees in confirmation proceedings under section 93 of the Labour Act as amended in 2015. It outlines the procedural and substantive challenges that can be faced if an employee is not joined to such confirmation proceedings. The case also makes an important finding that a LC does not have jurisdiction to entertain confirmation proceedings when an employee is a losing party when a draft ruling is produced by a labour officer.
The following facts culminated in the matter under consideration:
- An employee was dismissed for misconduct around April 2015.
- Aggrieved by the decision to dismiss her the employee filed a complaint in terms of section 93 of the Act. The labour officer decided the matter in favour of the employee leading to confirmation proceedings in terms of the 2015 amendments.
- The employee was not cited as a party to the proceedings at the LC.
- The LC confirmed the ruling even though the labour officer who made the ruling was not present.
- The employer then appealed to the Supreme Court and again the labour officer did not attend the proceedings. The employee was again not cited as a respondent.
- The supreme court noted that without joining the employee whose interests are subject of the dispute, the LC had made a fatal error in the conduct of the proceedings.
Reasons for the judgement
The court noted that there is a need to join an employee who is subject to confirmation proceedings each time the proceedings are before the LC. This will allow such an employee to respond to all the allegations that would be raised.
Joining the employee will prevent a situation where an employee suffers prejudice because the labour officer who is not an interested party a matter decides not to be part of the proceedings as noted in this case. The employee affected by the ruling can apply to be joined in the proceedings. The LC can also out of its own accord join an employee as a party to the proceedings.
The court noted that when a draft ruling has the effect of making an employee the losing party such a ruling cannot be brought before the LC for confirmation. It interpreted the words “…or any other person” in section 93(5a) of the Act as not referring to the employee who brought a matter before the labour officer. The LC thus does not enjoy jurisdiction to entertain such confirmation proceedings.
The court decisively remarked:
“When all is said and done and in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.”
The matter was remitted back to the LC for consideration of the merits of the matter.
This case is a must-read. It provides an important insight into some of the implications that came with the 2015 amendments to the Labour Act. It is amongst a plethora of cases that indicate that some of the provisions in the 2015 amendments were not properly thought through. The fact that LC has no jurisdiction to entertain confirmation proceedings were a ruling is not in favour of the employee is an important and far-reaching finding. This matter should not be ignored.