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.

In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?

The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.

What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:

(a)     where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;

(b)     where the parties reached an agreement as to what such documents purport to portray?;

(c)     where the parties reached an agreement that the documents should be regarded as evidence?

The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]

To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?

The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:

(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]