In Mzolo v Rhodes Employer and another – (2020) 30 ECG 1.13.6 a law lecturer was charged with sexual harassment and falsely accusing the employer of racism. An outside Chairperson found the lecturer – in a disciplinary hearing – not guilty of sexual harassment but guilty on the second charge and issued a final written warning.
The employer regarded the finding and sanction as unacceptable and took the view that the disciplinary hearing had been plagued with irregularities attributable to the Chairperson. The employer accordingly launched internal review proceedings, asking the internal review body to set aside the Chairperson’s finding and sanction and to substitute for it a finding that the employee was guilty. In response, the employee launched an urgent application for an order that the internal review be declared a breach of his employment contract and void ab initio.
The Court found that the question of urgency had to be evaluated against the dealings between the parties since the commencement of the disciplinary proceedings. The employee had not complied with the rule which requires those seeking urgent relief to explicitly set out the circumstances which render a matter urgent. He was seeking final relief and had not adequately explained why he could not obtain substantial redress at a hearing in due course.
The employee had also chosen to refer the matter to the CCMA before approaching the High Court. Forum-shopping of this nature was to be discouraged. The urgency was, accordingly, self-created.
The application had to fail for want of urgency.
The Court held further that the legality of the pending internal review proceedings was an issue arising from the employee’s contractual entitlements. In addition, the Court found that although the University’s Disciplinary Code did not cater for an internal review process, the policy which provided for review in sexual harassment cases was in line with existing case authority and in harmony with the Disciplinary Code and the Labour Relations Act (LRA).
The employer had demonstrated on the papers why it considered the Chairperson’s factual findings and sanction so grossly unreasonable, inappropriate and shocking that it justified interference. The Code did not prohibit the Vice-Chancellor from resorting to an internal review process. The employee would not be prejudiced by that process, because he could still raise any objections he might have before the review committee.
The application was dismissed with costs.
Urgency cannot be self-created. Further, Codes and Procedures should cater for a review or possibly overturning sanctions that are not in line with normal practice.
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