Dilatory tactics will get you nowhere

In George v Nyoka and Others, the Honourable Judge Tlhotlhalemaje, dealt with an urgent application to declare the appointment of the disciplinary chairperson and the disciplinary enquiry unlawful.

This excerpt provides a glimpse into the legal manoeuvring often observed in disciplinary hearings, where some employees resort to dilatory tactics to prolong the process. These tactics include requests for discovery of documents, objections to charges, seeking clarification, raising preliminary points, and even challenging the authority of the chairperson. The narrative illustrates how these tactics can lead to adjournments, withdrawal of legal representation, and ultimately cause strained judicial resources.

The court, in its response, underscores the need for expeditious resolution of labour disputes contrary to the objectives of the Labour Relations Act. It emphasizes that intervention by the Labour Court would only occur under exceptional circumstances, and in this case, such circumstances were not demonstrated. The court’s remarks also highlight the importance of active participation in the disciplinary process and the consequences of choosing not to engage, such as losing grounds for urgent intervention.

Overall, the passage sheds light on the challenges faced in maintaining efficiency and fairness in disciplinary proceedings, particularly when confronted with dilatory tactics aimed at delaying the process.

The court outlined the dilatory strategies utilised at the disciplinary enquiry stage by some employees. On receipt of the charges employees embark on delaying tactics that commence with requests for discovery of documents including documents which are irrelevant. Following such requests for discovery, further time is requested to consider the discovered documents; followed by objections to the charges and requests for clarification. Further requests for discovery are followed by preliminary points raised by legal representatives usually include questioning the authority of the chairperson. The preliminary points will necessitate the adjournment of the process to enable the chair to issue rulings on the preliminary points. The rulings are usually followed by submission of medical certificates, disappearance of witnesses and non-availability of witnesses. Applications for recusal of the chairperson follow and if declined the legal representatives withdraw from the matter, consequently, leaving the employee on their own and forcing a postponement to allow the employee an opportunity to obtain new legal representation.  At the next sitting the same legal representative appears and places himself/herself on the record and requests more time to familiarise themselves and consult with witnesses. The legal representative will then seek adjournment of the enquiry in order to approach the Labour Court to challenge the chairperson’s rulings.

The court stated that, “These antics are an antithesis of the primary purpose and objectives of the Labour Relations Act (LRA), primary of which is to have labour disputes resolved expeditiously.  They do not have a place either in the workplace or in this Court, if the primary objectives of the LRA are to be achieved.”

The Court highlighted that the Labour Court would only intervene if the employee demonstrated exceptional circumstances necessitating the intervention in incomplete disciplinary hearings.  In the matter of Booysen v Minister of Safety and Security and others,  the court found that there were no exceptional circumstances necessitating the intervention sought. The applicant sought an order that the chairperson and the disciplinary process were unlawful. In this regard the court stated that it had no jurisdiction to determine the unlawfulness of the Respondent’s conduct. The court also found that there was no urgency as the applicant had chosen not to participate in the cross examination of the Respondent’s witnesses. The Court bemoaned the frivolous applications that have caused strain on the limited judicial resources of the Court.

Rutendo Mandimutsira