Shawn Hittler v Ethekwini Municipality and Others

The applicant, Mr Shawn Hittler, was an employee of eThekwini Municipality. On 25 May 2024, he was issued with a notice to attend a disciplinary enquiry relating to procurement records. On 31 May 2024, he applied under section 188A(11) of the Labour Relations Act for the enquiry to be conducted as a pre-dismissal arbitration hearing before the South African Local Government Bargaining Council (SALGBC). On 5 June 2024, the SALGBC arbitrator approved this request. The s188A inquiry convened on 19 November 2024 and was adjourned to 24 January 2024. Two days later, on 21 November, the applicant was issued with further disciplinary charges for an enquiry to be held on 4 December 2024. The applicant made a second referral under s188A asking that these additional charges be converted into a s188A enquiry and consolidated with the original. On 3 December 2024, the arbitrator ruled that the additional charges should be consolidated with the s188A inquiry. Despite this ruling, the municipality proceeded with an internal disciplinary enquiry on 4 December 2024 using the same chairperson from the original enquiry. The applicant launched an urgent application on 11 December 2024 to halt the internal disciplinary enquiry pending the s188A arbitration. On 13 December 2024, the municipality dismissed the applicant following the conclusion of the second internal inquiry. The municipality did not disclose this dismissal in its answering affidavit filed on 17 December. On 18 December 2024, just before the hearing, the municipality launched an urgent counter-application to review the arbitrators' rulings of 5 June and 3 December 2024, but subsequently removed this counter-application from the roll on 24 December 2024.

• Whether the Labour Court had jurisdiction to declare the applicant's dismissal unlawful
• Whether the municipality was entitled to proceed with an internal disciplinary enquiry while a s188A pre-dismissal arbitration was pending
• Whether the applicant had properly pleaded the legal basis for his claim
• Whether the dismissal was a nullity because the municipality had no power to dismiss once the s188A process was underway
• Whether costs should be awarded on a punitive scale

1. The application was heard as a matter of urgency and non-compliance with forms and service was condoned. 2. The application was struck off the roll for lack of jurisdiction. 3. The First Respondent (eThekwini Municipality) was ordered to pay the Applicant's wasted costs incurred in the postponement and costs incurred in responding to the counter-application, calculated on an attorney-own client scale in line with Scale C of the Amended Uniform Rules of the High Court.

The binding legal principles established are: (1) Once a s188A pre-dismissal arbitration has been initiated and approved by an arbitrator, the employer loses the residual power to determine the outcome of disciplinary proceedings through an internal process - that power vests solely in the bargaining council arbitrator; (2) An applicant before the Labour Court bears the onus to prove jurisdiction by clearly pleading the legal basis for their claim - jurisdiction must be determined strictly on the basis of the applicant's pleadings; (3) It is incumbent on an applicant to identify the provision in the LRA or other law which confers jurisdiction on the Labour Court to entertain the claim; (4) A bald claim that a dismissal is "unlawful" without specifying whether it is based on breach of contract or grounds for review is insufficient to establish the court's jurisdiction; (5) The court cannot formulate an applicant's claim when the founding papers do not clearly indicate whether the claim is contractual or a legality review.

The court made several obiter observations: (1) The municipality's conduct in failing to disclose the applicant's dismissal in its answering affidavit was "extraordinary" and "inexcusable" - counsel's characterization of this as a "mistake" was inappropriate; (2) It makes no difference whether a s188A proceeding was initiated by the employee under s188A(11) or by the employer under s188A(1) - once initiated, the legal status of the proceeding is the same; (3) The applicant "might well have framed his claim as one that flowed from a breach of contract" or "might have applied on an urgent basis to review and set aside his dismissal on grounds of illegality" - suggesting these would have been proper bases for jurisdiction had they been pleaded; (4) The court noted it was "unfortunate" that the applicant did not properly plead his case, implying sympathy with the substantive position; (5) The court endorsed the approach in Mchuba v PRASA and MSC Depots cases that an employer cannot unilaterally withdraw from or abandon a s188A process once initiated.

This case is significant for clarifying that: (1) Once a s188A pre-dismissal arbitration process is underway, an employer loses the power to unilaterally continue with an internal disciplinary process and dismiss the employee - such power vests solely in the arbitrator; (2) Despite this substantive legal position, applicants must properly plead the legal basis for the Labour Court's jurisdiction - they must clearly indicate whether the claim is based on breach of contract (s77(3) BCEA jurisdiction) or a legality review (s158(1)(h) LRA jurisdiction); (3) A bald assertion that a dismissal is "unlawful" is insufficient to establish jurisdiction; (4) The court will not formulate an applicant's claim for them when the legal basis is unclear from the pleadings; (5) Courts may award punitive costs where a party fails to be candid with the court or engages in procedural conduct that wastes costs. The case demonstrates the tension between substance and procedure in labour law - even where an employee may have a meritorious claim, failure to properly plead the jurisdictional basis will result in the matter being struck off.