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Lawfulness of disciplinary proceedings challenged

The labour court, in Gxolo v Harmony Gold Mine (Pty) Ltd and Another (2018) 29 SALLR 19 (LC), considered the following important issues:

(a)     What is the test to determine whether or not leave to appeal should be granted?

(b)     What is the viewpoint of the labour court in casu as to whether, in the absence of any reliance on a breach of employment contract, the principles of unlawful administrative action in the public sector are applicable to employees in the private sector?

INTRODUCTION

unopposed application for leave to appeal against judgment of the LC dismissing an application to declare disciplinary processes and all subsequent proceedings under the CCMA unlawful and void ab initio

This is an unopposed application for leave to appeal against the judgment handed down on 27 October 2017 dismissing an application to declare disciplinary processes and all subsequent proceedings under the CCMA unlawful and void ab initio and ordering the applicant’s retrospective reinstatement to the date of his dismissal in 2010.

PERTINENT FACTS OF THE CASE

The applicant in casu claimed that the charge sheet, setting out the charges which he had to face, was invalid and, furthermore, argued that this rendered his dismissal unlawful and void ab initio.

FINDINGS OF THE LABOUR COURT

Seathlolo judgment (LC): test for granting leave to appeal – court must be satisfied that there is more than simply a possibility that another court may decide the matter differently

Before dealing with the central ground of appeal, it should be stressed that the test for granting leave to appeal requires the court to be satisfied that there is more than simply a possibility that another court may decide the matter differently (see Seathlolo and Others v Chemical Energy Paper Printing Wood & Allied Workers Union and Others (2016) 37 ILJ 1485 (LC) at 1486, paragraphs [2]–[3]).

The applicant claimed that the court had failed to appreciate that his case concerned the invalidity of the charge sheet which set out the charges on which he was dismissed and argued that the court ought to have realised that this rendered his dismissal unlawful and void ab initio.

applicant’s case: no distinction should be made between a claim of an invalid dismissal involving an employee in private employment and an employee in public employment

He further claimed that the court had erred in not equating his dismissal with that of a public servant and that the court should have realised that he did not have to establish that his dismissal was a nullity ,because of a fundamental breach of his employment contract, but simply that it was an unlawful dismissal by reasoning analogous to that in the cases of Mokopanele en Andere v Administrateur, Oranje Vrystaat en Andere 1989 (1) SA 434 (O) and Tlali v Mantsopa Local Municipality and Others (A78/11) [2011] ZAFSHC 195 (1 December 2011).  In short, the applicant contended that no distinction ought to have been made between a claim of invalid dismissal involving an employee in private employment and an employee in public employment.

Mokopanele judgment (O): unlawfulness of dismissal founded on administrative law principles; the failure to afford employees the administrative law right of audi alteram partem before dismissing them

However, in Mokopanele’s case, which pre-dated the Labour Relations Act 66 of 1995, it was fundamental to that judgment that the basis for arguing that the dismissal of the employees was invalid was because, in exercising the power to summarily dismiss the employees for misconduct under clause 5(2) of the Public Service Personnel Code, the administrator had failed to afford them the administrative law right of audi alteram partem before dismissing them. The unlawfulness of their dismissals was squarely founded on administrative law principles.

Tlali judgment (HC): similarly, invalidity of dismissal rested on terminating services contrary to applicable local authority regulations

Similarly, the invalidity of the dismissal in Tlali’s case had rested on the local authority terminating a fixed term contract contrary to a regulation.

LC: applicant failed to provide legal authority why principles of unlawful administrative action were applicable to the private sector in the absence of any reliance on a breach of an employment contract

The applicant had provided no legal authority why the principles of unlawful administrative action were applicable to his situation in the private sector, in the absence of any reliance on a breach of the employment contract.

order of the LC: leave to appeal dismissed with no order as to costs

The labour court, per Legrange J, was satisfied that no other court was likely to come to a different conclusion.  The application for leave to appeal was dismissed with no order as to costs.

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?