A Collectively Constituted Hearing: Is It A Bar To Review? A Collectively Constituted Hearing: Is It A Bar To Review? By Lauren Salt, Associate, Employment, Cliffe Dekker Hofmeyr In the recent case of Overstrand Municipality v Magerman N.O and Another (C86/2013) [2013] ZALCJHB 292 (28 October 2013), the court was faced with whether or not it could review and set aside the decision of a chairperson of a disciplinary hearing conducted in terms of a collective agreement in local government. In casu, the respondent employee, the Head of the Municipalitys Law Enforcement and Security division, was found to have committed misconduct in that he secured the withdrawal or reduction of personal speeding fines by falsely claiming that they had been incurred while performing his duties. The Internal Chairperson of the hearing imposed a sanction of a final written warning. The Municipality sought review of the Chairpersons decision, contending that in view of the serious nature of the offence, no reasonable Chairperson could have imposed a sanction short of dismissal. The first issue that the court was required to determine was whether it could overturn the sanction imposed by an internal disciplinary hearing constituted by a collective agreement. The court noted that, while it has been held that decisions taken in the course of an employment relationship do not constitute administrative action, the Labour Appeal Court and the Supreme Court had ruled that internal disciplinary proceedings constitute administrative action reviewable by the Labour Court in terms of s158(1)(h) of the Labour Relations Act, No 66 of 1995. Section 158(1)(h) provides that the Labour Court ...may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law”. The question raised by the Municipality was whether the Supreme Court of Appeals judgment in Ntshangase v MEC: Finance, Kwazulu Natal and Another [2009] 12 BLLR 1170 had been overruled by the Constitutional Courts later decision in Gcaba v Minister for Safety and Security and Others [2009] 12 BLLR 1145 (CC). The Constitutional Court in Gcaba had found that – Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the State as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the State as employer and its workers. When a grievance is raised by an employee relating to the conduct of the State as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action. Returning to Overstrand, the court held that, albeit anomalous to determine that the dismissal of a public service employee does not constitute administrative action in one decision – Nsthangase, and shortly thereafter the decision of the chairperson of a disciplinary hearing does constituted administrative action – Gcaba – the court was bound by the Ntshangase decision. The court found that the Chairperson of the disciplinary hearing was exercising a statutory function, because the municipal function had delegated the power he possessed under the Municipal Systems Act, No 32 of 2000. The court determined that it consequently had jurisdiction to hear the Municipalitys case In respect of the merits of the case, the court found that the employee occupied a senior and trusted position, he had acted in an unlawful manner and subsequently, he tried to defeat the ends of justice by acting dishonestly. The court found that the mild sanction imposed beggared belief. The Chairperson had merely taken into account the employees length of service and his performance without considering the duplicity of the employees conduct, had taken irrelevant factors into account when considering mitigation and had overlooked the operational need to ensure that an official in the position of the employee should behave in an exemplary manner. Given the nature and gravity of the misconduct, the court found that there will be no point in remitting the matter back to the internal enquiry for reconsideration. Accordingly, the court determined that the only possible sanction in the circumstances was dismissal. The court, thus, set aside and replaced the Chairpersons decision with a sanction of summary dismissal. The impact of this judgment is that it confirms the position in Ntshangase that local government can review an internal disciplinary decision and the court has jurisdiction to substitute such a decision. For more information please contact Lauren Salt at Lauren.salt@dlacdh
Posted on: Thu, 13 Mar 2014 15:02:02 +0000
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