Inquiry by an arbitrator in circumstances of an alleged protected disclosure
Inquiry by an arbitrator in circumstances of an alleged protected disclosure. The introduction of section
188A(11) of the Labour Relations Act
The amendments to the Labour Relations Act (LRA) and other key employment legislation in 2015 resulted in key changes to the way employers traditionally regulated employment and the manner in which employers are expected to interact with their employees. One such amendment was the amendments to section 188A of the LRA. This section previously entitled “agreement for pre-dismissal arbitration” is now entitled “Inquiry by an Arbitrator”.
An Inquiry by Arbitrator allows for the appointment of an arbitrator at the CCMA, or bargaining council or accredited agency, upon request by an employer to conduct an inquiry into allegations about the conduct or capacity of an employee. Prior to the amendments, a pre-dismissal arbitration could only be conducted with the consent of the employee.
A significant amendment is the introduction of subsection 11. Section 188A(11) provides that, despite subsection 1, where an employee in good faith alleges that the holding of an inquiry contravenes the Protected Disclosure Act, that employee or the employer may require that an inquiry be conducted in terms of section 188A into allegations by the employer into the conduct or capacity of the employee. Parties in cases involving claims of protected disclosure typically get drawn into extensive collateral litigation that results in the delay of disciplinary enquiries. To cater for this situation, the legislature introduced this subsection. The amendment is aimed at reducing the risk of collateral litigation, including High Court litigation, which has been common in these circumstances. The referral in terms of subsection 11 permits either the employee or the employer to insist upon an inquiry by an arbitrator to determine the allegations into the employee’s conduct or capacity.
Case law relating to section 188A(11)
On 10 March 2021 Judge Mkutha-Nkontwana delivered judgment in the matter of Peter Jacobs v Minister of Safety and Security and Others. On 10 December 2020 certain police officers were suspended and charges were brought against them therafter. These officers subsequently approached the SSSBC in terms of section 188A(11) of the LRA and objected against the internal inquiry. Despite the Employer raising an issue that the referral came as an afterthought, the Court found that section 188A(11) is a mechanism aimed at striking a balance between no action in terms of the PDA and the taking of certain steps.
The Court referred to Nxele v National Commissioner of Correctional Services and Others and reiterated that the only proper construction of section 188A(11) of the LRA where an employee requests an Inquiry by Arbitrator, is that the request is imperious or peremptory. The Court furthermore held that the Employer is instructed to take part in the process and to suspend the internal hearing.
In the Nxele matter the Court specifically held as follows:
[26] Section 188A(11) was introduced into the LRA consequent to the amendments to the LRA that came into effect in 2015. The object of this provision is to avoid disputes where an employee claims that the holding of an enquiry into allegations of misconduct, and suspension pending such an enquiry, breach the provisions of the PDA. The section accordingly permits either party to insist on an enquiry under section 188A with a view to reduce the risk of collateral litigation, including High Court litigation, which had been common in these circumstances.
In Letsoalo & others v Minister of Police & others the court had endorsed this explanatory note. [29] In the present case, the objects and purport of section 188A(11) could only be understood within the context of the PDA and an enquiry into the intention of the legislator. The purpose of the PDA is to provide for the protection of employees who make a disclosure which is protected in terms of the PDA. Whilst section 188A(11), as correctly argued, aims to strike a balance between taking no action because the person allegedly guilty of misconduct is a whistleblower in terms of the PDA and allowing a disciplinary process, with the safeguard being that the disciplinary process has to be done in a manner that is entirely independent of the employer.
[30] The use of the words ‘despite subsection (1)’ in section 188A(11) clearly shows that the legislature deliberately stripped the employer of its discretion to unilaterally trigger a section 188A hearing, subject to the employee’s consent. At the advent of s 188A(11), employees may ‘require’ or ‘insist’ that the disciplinary enquiry be conducted in accordance with s 188A, termed ‘pre-dismissal arbitration’. The word ‘require’ in s 188A(11), given its ordinary meaning, means to enjoin, oblige, constrain, command, decree, demand, dictate, direct, etc.
[31] In my view, the only proper construction to be accorded to s 188A(11) is that, where an employee or employer requires a pre-dismissal arbitration in terms of section 188A, that request is imperious. This construction gives effect to the purpose of the legislature which is to provide a degree of protection to employees who make protected disclosures and to avoid parallel litigation, typified in the present case.
[32] Basically, following a s 188A(11) request by the employee, the employer is enjoined to institute a pre-dismissal arbitration in terms of s 188A. The internal disciplinary enquiry that would have commenced and is pending must terminate. It must be emphasised that, since it is the employer’s managerial prerogative to exercise discipline that gets delegated in terms of a section 188A process, the employer remains responsible for referring the request to the relevant dispute-resolution institution and attending to the payment for the services of that institution.
This understanding accords with the purpose of section 188A, which is articulately explained in SA Transport & Allied Workers Union & others v MSC Depots (Pty) Ltd & others where the court stated: ‘Section 188A (despite its unfortunate title which on the face of it, assumes the outcome of the arbitration hearing) has as its purpose a means of expediting dispute resolution by avoiding duplication between internal and external hearings. In effect, in terms of a tripartite agreement between the employee, the employer and the CCMA, an arbitrator steps into the shoes of the employer and assumes the right normally considered a sacrosanct element of the managerial prerogative — the right to exercise discipline, including the right to dismiss. The benefit for all is the elimination of the duplication that inevitably occurs when court-like in-house hearings are inevitably followed by an arbitration hearing conducted on a de novo basis.’
Conclusion
By invoking section 188A(11), a party is able to have an independent determination of the issues during the initial inquiry by the arbitrator and the outcome is in turn subject to review by the Labour Court. This constitutes a welcome introduction into legislature
Source: