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?
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 –).
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)  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.
On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?