Interdicting a disciplinary inquiry

Information provided by De Rebus SA Attorney’s Journal

Talita Laubscher

On 12 August 2004 the applicant in Van As v African Bank Ltd [2005] 3 BLLR 304 (W) was suspended pending the outcome of a disciplinary inquiry which was scheduled to take place on 6 October. On 5 October, the respondent provided the applicant with a written retrenchment agreement, signed by the respondent, which it required the applicant to sign. The disciplinary inquiry was postponed to 25 October. The applicant signed the agreement and returned it to the respondent. The applicant thereupon approached the High Court for an order interdicting the disciplinary inquiry.

The applicant argued that by the acceptance of the retrenchment agreement, the parties agreed that the termination of his employment would henceforth be governed by this agreement, and that the respondent would not be entitled to dismiss him through a disciplinary procedure. The respondent, on the other hand, contended that the disciplinary procedure was a separate, distinct procedure, and that the retrenchment agreement did not override the respondent’s right to dismiss the applicant for misconduct.

In terms of the retrenchment agreement, the applicant would be retrenched with effect from February 2005 and he would receive a severance package. The agreement was silent as regards the pending disciplinary inquiry and, importantly, was not made conditional upon the outcome of the disciplinary inquiry. Furthermore, the agreement provided that the agreement was in full and final settlement of all claims of any nature whatsoever arising from or relating to the termination of the employee’s employment with the company.

The court, per Horn J, noted that the respondent drafted the agreement and that the respondent did not attack the validity of the agreement on any basis, such as that its terms were ambiguous or unclear. The court therefore held that there was nothing to suggest that the parties intended anything else but that the retrenchment agreement would be the sole memorandum of the employee’s dismissal. Thus, by signing the agreement the respondent expressly contracted out of the normal disciplinary procedure and it replaced it with the termination of the applicant’s employment for operational requirements. In the circumstances, the court ordered the respondent to comply with the terms of the retrenchment agreement

Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan Inc in Sandton.

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