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[2014] ZALAC 107
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Marius v Overstrand Municipality (CA24/2013) [2014] ZALAC 107 (25 September 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA24/2013
In the matter between:
MARIUS HENDRICKS
Appellant
and
OVERSTRAND
MUNICIPALITY
First Respondent
A MAGERMAN
N.O.
Second Respondent
Heard:
04 September 2014
Delivered:
25 September 2014
Summary:
Interpretation of section 158(1)(h) of the LRA- Review of a ruling of
the chairperson of a disciplinary hearing- employee
challenging
review of presiding officer in terms of section 158(1)(h). Presiding
officer mandated by employer performing administrative
act. Employer
aggrieved by the disciplinary sanction of a presiding officer
entitled to review sanction in terms of section 158(1)(h)
of the LRA.
Ntshangase
,
Gcaba and Chriwa
considered. Review
consonant with the prescripts of the Constitution and the common law
principles of reasonableness, legality and
rationality. Employee
dismissed for dishonesty conduct and fraudulent misrepresentation –
chairperson suspending employee
and ordering written warning- Labour
Court reviewing chairperson’s finding- Evidence showing that
employment relationship
irretrievably broken down. Chairperson’s
finding unreasonable and irrational. Labour Court’s decision
upheld. Appeal
dismissed.
Coram: Musi JA, Murphy
AJA and Setiloane AJA
JUDGMENT
MURPHY AJA
[1]
This appeal invites us to re-consider the interpretation of section
158(1)(h) of the Labour Relations Act
[1]
(“the LRA”) which 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 subsection is part of the section of the LRA
which defines the
powers of the Labour Court. The reason for the invitation to re-look
at the interpretation of section 158(1)(h)
is that there evidently
exists apprehension among Labour Court judges
[2]
and some practitioners that the interpretation of the provision by
the Supreme Court of Appeal (“the SCA”) and this
court
(“the LAC”) in
Ntshangase
v MEC for Finance, Kwa-Zulu Natal and Another
[3]
may be at odds with the rulings of the Constitutional Court in
Chirwa
v Transnet and others
[4]
and
Gcaba
v Minister of Safety and Security and Others.
[5]
The essential issue in dispute in this case is similar to that in
Ntshangase
.
It involves the review of a decision of the presiding officer of an
internal disciplinary hearing tasked with determining charges
of
misconduct levelled against the appellant. The presiding officer
imposed a sanction less than dismissal. The Labour Court (Steenkamp
J) reviewed and set aside the decision of the presiding officer and
substituted it with one of dismissal. The appellant appeals
against
that decision with the leave of the court
a
quo
.
[2] The appellant, Mr
Hendricks, was the Chief: Law Enforcement and Security at the first
respondent, Overstrand Municipality. He
was responsible for
inter
alia
administering general law enforcement in the municipality.
The position was a senior one, and for obvious reasons the incumbent
was expected to observe a high degree of integrity and honesty. The
appellant was legally represented and supported by his trade
union
(IMATU) in all the proceedings up to his successful application for
leave to appeal to this Court. His attorneys withdrew
when he was
unable to place them in funds to argue the appeal. They nonetheless
filed detailed and well-reasoned heads of argument
upon which we have
been able to rely. The appellant appeared before us in person and
after making certain submissions sought a
postponement which the
first respondent opposed. We refused the postponement on the grounds
that the issues were fully ventilated
on the papers and in the heads
of argument. Moreover, further delay would have been prejudicial to
both parties in that the appellant
would have been saddled with the
costs of the postponement and legal fees, while the first respondent
would be expected to continue
paying the appellant his salary for the
duration of any postponement. The court is well placed to deal with
the appeal as all the
evidence and argument in relation to it are
properly before us.
[3] On 6 August 2012, the
appellant was served with a notice to attend a disciplinary hearing
to answer three charges, namely:
i) rude, abusive,
insolent, provocative, intimidatory or aggressive behaviour to a
fellow employee, one Rudi Fraser, the Chief of
Traffic Services;
ii) dishonesty, including
fraudulent misrepresentation; and
iii) breaches of the code
of conduct.
[4] A disciplinary
hearing was held and chaired by the second respondent in terms of the
Disciplinary Procedure and Code Collective
Agreement (“the
code”), a collective agreement concluded nationally under the
auspices of the South African Local Government
Bargaining Council
(“SALGBC”). The employer parties in SALGBC are
represented by the employers’ organisation
the South African
Local Government Association (“SALGA”) and the employees
by two trade unions, SAMWU and IMATU. The
first respondent is bound
by the collective agreement by virtue of being a member of SALGA.
Clause 4.2 of the code records that
it is a product of collective
bargaining and the application thereof is deemed to be a condition of
service of all employees. In
terms of clause 6 of the code, in the
event of misconduct by an employee that appears sufficiently serious
to warrant a sanction
more serious than a written warning, the
municipal manager must establish a disciplinary hearing to conduct
the enquiry and appoint
a suitable person to serve as a presiding
officer. Clause 7 deals with the procedural requirements of the
hearing. Clause 7.5 bestows
upon the presiding officer the powers to
impose any one of the typical sanctions, including written warnings,
suspension, the withholding
of salary increments, demotion and
dismissal. Clause 7.7 provides that the presiding officer’s
determination cannot be altered
by the municipal manager or any other
governing structure of the municipality and shall be final and
binding subject
inter alia
to any other remedies permitted by
law.
[5] On 23 November 2012,
the second respondent found the appellant guilty on the first two
charges. The appellant had pleaded guilty
on the first charge. The
second charge was to the effect that the appellant had committed
misconduct by fraudulently submitting
representations for the
withdrawal or reduction of his personal speeding fines on the false
grounds that the fines had been incurred
in the course and scope of
his official duties. In particular, he instructed a subordinate,
Constable Samuels, to draft false representations
for the withdrawal
of speeding fines which had been issued to him. He then signed the
representations which he knew to be false.
The second respondent
imposed a sanction of a final written warning valid for 12 months on
the first charge; and suspension without
pay for 10 days, coupled
with a final written warning valid for 12 months, on the second
charge.
[6] In February 2013, the
first respondent made application to the Labour Court seeking orders
reviewing and setting aside the determination
on sanction and
replacing the determination on sanction with the sanction of
dismissal. The application was made in terms of section
158(1)(h) of
the LRA, with the first respondent arguing that the determination was
irrational and unreasonable and that it was
entitled to a review on
these grounds which “are permissible in law”. The premise
of its submission is that the conduct
of the appellant, given his
position, had destroyed the trust relationship and hence that
continued employment would be intolerable,
meaning that the only
rational and reasonable sanction in the circumstances would be
dismissal.
[7]
The court
a
quo
held that a review was competent under section 158(1)(h) of the LRA,
set aside the determination of the second respondent and substituted
it with a sanction of dismissal. The learned judge, although not
explicitly stating as much, seems to have characterised the decision
of the presiding officer as administrative action, as defined in
section 1 of the Promotion of Administrative Justice Act
[6]
(“PAJA”), and set it aside on the grounds that it was
irrational and unreasonable, being the grounds of review of
administrative action stipulated in section 6(2)(f)(ii) and section
6(2)(h) of PAJA respectively. The term “administrative
action”
is defined in section 1 of PAJA to mean any decision (being of an
administrative nature) taken by an organ of state
when exercising a
constitutional or public power or performing a public function in
terms of legislation which adversely affects
the rights of any person
and which has a direct, external legal effect. Certain exercises of
power, which are not relevant in this
case, are excluded from the
ambit of the definition.
[8] The appellant’s
first ground of appeal is that the court
a quo
erred in
finding that the first respondent was entitled to approach the court
on review in terms of section 158(1)(h) of the LRA
to challenge the
finding of the presiding officer under the code; in particular by
failing to find that the judgment of the SCA
in
Ntshangase
was
inconsistent with the decision of the Constitutional Court in
Chirwa
and had in effect been overruled in
Gcaba
. Should we hold that
Ntshangase
has indeed been impliedly overruled it will be
dispositive of the appeal in that the court
a quo
would have
lacked power to review and set aside the determination.
[9] The appellant’s
contention that the Labour Court does not have the power to review
the decision of the presiding officer
of a disciplinary hearing,
either at the instance of an employer or an employee, is predicated
upon certain
dicta
of the Constitutional Court in
Chirwa
and
Gcaba
in relation to the interplay between the
constitutional provisions regulating fair labour practices and just
administrative action.
Section 23 of the Constitution provides that
everyone has the right to fair labour practices and further
entrenches various rights
of free association, organization and
collective bargaining, including the right to strike. Section 33 of
the Constitution entrenches
the right to just administrative action
by providing
inter alia
that everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair. Section 33(3) obliges Parliament
to enact legislation to give
effect to the right to just administrative action, which it has done
in the enactment of PAJA.
[10]
In
Chirwa
,
Ncgobo J, while accepting that the dismissal of an employee by a
public entity involved the exercise of a public power, held that
such
was not decisive of the question whether the exercise of the power in
question constitutes administrative action. He held
that the subject
matter of the power involved in that case was the termination of a
contract of employment and that such did not
involve an act of
administration. He concluded:
[7]
‘
Support for
the view that the termination of the employment of a public sector
employee does not constitute administrative action
under section 33
(of the Constitution) can be found in the structure of our
Constitution. The Constitution draws a clear distinction
between
administrative action on the one hand and employment and labour
relations on the other. It recognizes that employment and
labour
relations and administrative action are two different areas of law
….. The Constitution contemplates that these two
areas will be
subjected to different forms of regulation, review and enforcement ….
The Constitution contemplates that labour
relations will be regulated
through collective bargaining and adjudication of unfair labour
practices.’
[11]
The Constitutional Court endorsed this statement in
Gcaba
and commented further on the relationship between the constitutional
right to fair labour practices and the right to administrative
justice as follows:
[8]
‘
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is
recognized
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 or consequences for other citizens, it does not constitute
administrative action.’
[12] These
dicta
of the Constitutional Court support the general proposition that
public sector employees aggrieved by dismissal or unfair labour
practices (unfair conduct relating to promotion, demotion, training,
the provision of benefits and disciplinary action short of
dismissal)
should ordinarily pursue the remedies available in section 191 and
193 of the LRA, as mandated and circumscribed by
section 23 of the
Constitution. The court made no explicit finding in either case in
relation to section 158(1)(h) of the LRA.
[13]
As mentioned, the facts in
Ntshangase
were
similar to those in the present appeal. The appellant in that case
was charged and convicted of twelve counts of misconduct
involving
allegations of wilful or negligent mismanagement of the State’s
finances and of abusing his authority which had
caused the respondent
significant financial loss. The presiding officer of the disciplinary
hearing, appointed in terms of the
applicable collective agreement,
imposed a final written warning. The respondent reviewed the
determination relying ultimately
upon section 158(1)(h) of the LRA.
The Labour Court dismissed the application. However, the LAC reversed
that decision, upheld
the application for review and substituted a
decision of dismissal for that imposed by the presiding officer.
[9]
The LAC did not explicitly deal with the provisions and wording of
section 158(1)(h), but relying on the Constitutional Court’s
finding in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[10]
that compulsory arbitration before the CCMA constitutes
administrative action, stated:
‘
It seems to
me that if the conduct of compulsory arbitrations relating to
dismissal disputes under the Act constitutes administrative
action,
then the conduct of disciplinary hearings in the workplace where the
employer is the State constitutes, without any doubt,
administrative
action. If it constitutes administrative action, then it is required
to be lawful, reasonable and procedurally fair.
Accordingly, if it
can be shown not to be reasonable, it can be reviewed and set aside.’
The LAC made no reference
in its judgment to the definition of administrative action in PAJA,
nor did it elucidate upon how the
exercise of power by the presiding
officer of a disciplinary hearing fell within its ambit.
[14] The SCA in
Ntshangase
agreed with the
dicta
of the LAC and held
that the determination was indeed administrative action. It stopped
short of saying that the whole gamut of
review grounds under PAJA
were therefore available, confining itself to the more general
proposition that such administrative action
had to be lawful,
reasonable and procedurally fair in terms of section 33 of the
Constitution, noting also that the determination
was reviewable on
grounds of rationality (presumably in accordance with the dictates of
the principle of legality).
[15] The decisions of the
LAC and the SCA are accordingly weighty authority for the assertion
that a determination by a presiding
officer appointed under a
collective agreement applicable in the public sector is reviewable on
grounds of lawfulness, rationality,
reasonableness and procedural
fairness. The question is whether these decisions are inconsistent
with the earlier decision of the
Constitutional Court in
Chirwa
and have been overruled by implication in the later decision of
Gcaba
.
[16] The starting point
is to look more closely at the language of section 158(1)(h). It
states that decisions and acts performed
by the State in its capacity
as employer are reviewable by the Labour Court “on such grounds
as are permissible in law”.
On the assumption that a
determination by an independent presiding officer at a disciplinary
hearing is a decision or act of the
employer (a matter to which I
will revert later), the Labour Court can review that decision or act
and the essential enquiry should
be whether the grounds of review are
“permissible in law”.
[17] The crux of the
appellant’s objection in this case is that the SCA and the LAC
in
Ntshangase
erred in holding the decision of the presiding
officer to be administrative action and hence he maintains that
review under PAJA
is not permissible in law. Relying on
Chirwa
and
Gcaba
, the appellant argued that by terminating an
employee’s contract, the state employer exercises a contractual
power (rather
than an administrative one) which has been
circumscribed by collective bargaining.
[18]
The submissions of the appellant rest, in my opinion, on too narrow
an interpretation of the decision of the Constitutional
Court in
Gcaba
.
The court there expressly qualified its pronouncement that employment
issues do not amount to administrative action “
within
the meaning of PAJA”
by adding that such would “generally” be the case. It
also was careful to observe that the “
ordinary
thrust”
of the right to administrative justice is to deal with bureaucratic
relationships and not relationships between the State as employer
and
its workers. However, the Constitutional Court has also recognized
that deciding what is and what is not administrative action
is a
difficult task to be done on a case-by-case basis.
[11]
Regard must be had to the source of the power, the nature of the
power, its subject matter and how closely it is related to policy
matters or to the implementation of legislation. It is the nature of
the power and the context of its application which are usually
decisive.
[19] A municipality is an
organ of state as defined in section 239 of the Constitution. When
such a body acts to discipline a senior
employee who holds a public
or quasi-public office in law enforcement, it can be seen to be
exercising a public power or performing
a public function in terms of
local authority legislation and any applicable statutory collective
agreement. The power of the disciplinary
tribunal in this instance
arises from the provisions of a statutory collective agreement. Such
agreements are not entirely or exclusively
contractual in nature,
especially when concluded in a bargaining council between an
employers’ organisation and trade unions.
The manner of their
conclusion and the application of their terms to non-parties impart a
quasi-legislative quality to them. Section
23(1)(c) of the LRA
provides that a collective agreement concluded by an employer’s
organization or trade union will be binding
on its members. Moreover,
the power to discipline under a collective agreement is often
delegated to a functionary over whom the
employer has limited
control, just as clause 7 of the code vests the power to discipline
or dismiss in a presiding officer, appointed
by the municipal manager
(the employer), who has autonomy to impose a sanction which is final
and binding. Clause 14 of the code
stipulates that the decision is
not appealable by the employer, but clause 7.7 provides that the
decision on sanction is subject
“to any other remedies
permitted by law”. This structural arrangement points to an
intention to reserve to the employer
a right of review in relation to
the disciplinary sanction.
[20]
Besides the peculiar structural elements of the agreement arising
from the process of collective bargaining, the decision of
the
presiding officer
qua
employer
is a decision of an administrative nature by an organ of state
performing a public function in terms of the legislation
governing
local government. It is also a decision informed by policy
considerations related to the exceptional requirements of
probity
applicable to the position held by the appellant. The Constitution
and the suite of local government legislation require
municipalities
to function effectively, efficiently and transparently. One of the
principal objects of local government is to provide
for democratic
and accountable government to local communities.
[12]
The first respondent has a public duty to eradicate corruption and
malfeasance from within its ranks and structures. These factors
therefore bolster the conclusion that the decision of the presiding
officer, looked at in context, was indeed administrative action
within the meaning of PAJA, it being the exercise of a statutory
public power or the performance of a public function which has
a
direct, external legal effect in its consequences for ratepayers and
citizens in general.
[21]
But it is probably unnecessary to go that far. There is strictly
speaking no need to classify the decision as administrative
action in
terms of PAJA before a review will be competent under section
158(1)(h). The provision does not say that the Labour Court
may
review decisions of the State acting as employer on the grounds of
review applicable to administrative action under PAJA. The
Labour
Court may do so on any ground “permissible in law”.
Review under PAJA is only one kind of administrative law
review.
Other exercises of public power are reviewable on constitutional
grounds of legality and rationality. As stated by the
SCA in
NDPP
v Freedom under Law,
[13]
the legality principle has become well established in our law as an
alternative pathway to judicial review of exercises of public
power
where PAJA finds no application. The principle permits review on
grounds of both legality and rationality.
[14]
[22]
Moreover, our courts in the pre-democratic era held that disciplinary
tribunals constituted by contract were susceptible at
common law to
judicial review on grounds of both reasonableness and procedural
fairness.
[15]
Although our
administrative law of review has been constitutionalized and codified
in PAJA, the codification has not repealed and
substituted all
aspects of the common law of judicial review. The extent to which the
common law of administrative law remains
relevant to administrative
review must be developed on a case-by-case base.
[16]
The question which arises is whether our new constitutional
dispensation has altered the law in relation to the review of private
or quasi-public disciplinary tribunals. The issue was pertinently,
and, in my respectful view, correctly addressed by Claassen
J in
Klein
v Dainfern College
[17]
as follows:
‘
No rational
reason exists to exclude individuals from the protection of judicial
review in the case of coercive actions by private
tribunals not
exercising any public power. To my mind, the Constitution makes no
pronouncement in respect of this branch of private
administrative
law. Thus, continuing to apply the principles of natural justice to
the coercive actions of private tribunals exercising
no public powers
will in no way be abhorrent to the spirit and purport of the
Constitution.’
[23]
The same, I might add, holds true for the application of the
principles of rationality and reasonableness. The existence of
this
type of review, as I have just intimated, does not derive directly
from the application of the Constitution or PAJA. It exists
as a
consequence of the judicial development of the common law. The common
law principles of administrative law have been subsumed
under the
Constitution and, insofar as they might continue to be relevant to
judicial review, they gain force from the Constitution.
The common
law and the Constitution have become intertwined. The doctrine
permitting the review of private disciplinary review
tribunals
therefore should continue as part of our law, at least until sound
reasons for jettisoning it are found. Its continuation
can be
justified in terms section 39(2) of the Constitution on the grounds
that it promotes the spirit, purport and objects of
the
constitutional right to just administrative action, a consideration
which the courts are obliged to heed when interpreting
legislation
and when developing the common law. The judicial review of
contractual disciplinary tribunals on administrative law
grounds is
in line with the spirit and purport of the Constitution.
[18]
This would be especially so where, as in the present case, there is
no other remedy or process available to review the impugned
act of
the State in its capacity as employer.
[19]
[24] Moreover, there is
no basis for suggesting that the common law in this regard has been
repealed or made redundant by either
PAJA or the Constitution. In
addition to the presumption of statutory interpretation that the
legislature is presumed to alter
the existing law minimally, section
39(3) of the Constitution provides that the Bill of Rights does not
deny the existence of any
other rights or freedoms that are
recognised or conferred by common law to the extent that they are
consistent with the Bill of
Rights. The review of private or
contractual disciplinary proceedings was fashioned by the courts in
service of human rights in
the sense that it involved a realisation
that members of seemingly private organizations often have little or
no real choice over
the terms of agreements made applicable to them.
This case furnishes a good example, involving as it does the
application of an
agreement concluded by collective bargaining and
made enforceable by legislation. The retention of a right of judicial
review of
any exercise of powers under the terms of such a contract
is manifestly consistent with the Bill of Rights.
[25] Accordingly, the
submission by the appellant that review should be excluded because of
the contractual arrangement and the
private nature of the power is
not well-founded. The judicial review of contractual disciplinary
proceedings is permitted in our
law and consequently the first
respondent’s application for review is permitted on these
grounds, which are “permissible
in law” as contemplated
in section 158(1)(h) of the LRA.
[26]
But the written submissions filed on behalf of the appellant go
further than this. They make the additional structural and
prudential
argument that employment issues should be regulated exclusively in
the insulated scheme of section 23 of the Constitution
and the LRA.
It is contended that such an approach accords with the prescription
of the Constitutional Court in
Gcaba
and that the LAC and SCA decisions in
Ntshangase
are not in conformity with that direction. As I have already
suggested, the submission is guilty of overstatement. The
Constitutional
Court made it clear in
Gcaba
that although compartmentalisation of labour rights and
administrative justice rights should ordinarily be maintained, courts
should avoid rigid categorisation. It elaborated as follows:
[20]
‘
First, it is
undoubtedly correct that the same conduct may threaten or violate
different constitutional rights and give rise to
different causes of
action in law, often even to be pursued in different courts or fora.
It speaks for itself that, for example,
aggressive conduct of a
sexual nature in the workplace could constitute a criminal offence,
violate equality legislation, breach
a contract, give rise to the
actio
iniuriarum
in
the law of delict and amount to an unfair labour practice. Areas of
law are labelled or named for purposes of systematic understanding
and not necessarily on the basis of fundamental reasons for a
separation. Therefore, rigid compartmentalisation should be avoided.
It is, furthermore, generally accepted
that human rights are intrinsically interdependent, indivisible and
inseparable. The constitutional
and legal order is one coherent
system for the protection of rights and the resolution of disputes.
A related principle is that
legislation must not be interpreted to exclude or unduly limit
remedies for the enforcement of constitutional
rights.’
[27]
The underlying guiding rationale of the
ratio
decidendi
in
Gcaba
and
Chirwa
is that once a set of carefully-crafted rules and structures has been
created for the effective and speedy resolution of disputes
and
protection of rights in a particular area of law, it is preferable to
use that particular system.
[21]
In other words, and in practical terms, remedies for unfair dismissal
and unfair labour practices contained in the LRA should be
used by
aggrieved employees rather than seeking review under PAJA. The
ratio
cannot justifiably be extended to deny an employer a remedy against
an unreasonable, irrational or procedurally unfair determination
by a
presiding officer exercising delegated authority over discipline. The
remedies available to an aggrieved employee under the
unfair
dismissal and labour practice jurisdiction of the LRA are not
available to employers. Section 191(1)(a) of the LRA expressly
restricts these remedies to “the dismissed employee or the
employee alleging the unfair labour practice”. The only
remedy
available to the employer aggrieved by the disciplinary sanction
imposed by an independent presiding officer is the right
to seek
administrative law review; and section 158(1)(h) of the LRA empowers
the Labour Court to hear and determine the review.
To hold otherwise
is to deny the employer any remedy at all against an abuse of
authority by the presiding officer. Moreover, as
explained earlier,
in the present case Clause 7.7 of the code, properly interpreted,
does not amount to a contractual abandonment
of all remedies. On the
contrary, the proviso to the clause discloses an intention to retain
a right to seek review by subjecting
a final and binding
determination to “any other remedies permitted by law”.
The intention is one of excluding an appeal
by the employer while
allowing for a review. As mentioned, the right of appeal against a
presiding officer is available in terms
of clause 15 of the code only
to employees.
[28]
Besides being entitled to bring a review in terms of the common law,
as I have explained, the first respondent is equally entitled
to
review the decision of the presiding officer on the ground of
non-compliance with the constitutional principle of legality.
As with
review under PAJA such a review, based on the principle of the rule
of law in section 1(c) of the Constitution, requires
the decision to
be categorised as an exercise of public power, which for the reasons
already stated I accept that it is. Legality
includes a requirement
of rationality. It is a requirement of the rule of law that the
exercise of public power by the executive
and other functionaries
should not be arbitrary.
[22]
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and
inconsistent with the rule of law.
[29]
In sum therefore, the Labour Court has the power under section
158(1)(h) to review the decision taken by a presiding officer
of a
disciplinary hearing on i) the grounds listed in PAJA, provided the
decision constitutes administrative action; ii) in terms
of the
common law in relation to domestic or contractual disciplinary
proceedings; or iii) in accordance with the requirements
of the
constitutional principle of legality, such being grounds “permissible
in law”. The findings of the LAC and the
SCA in that regard in
Ntshangase
are not inconsistent with the findings of the Constitutional Court in
Gcaba
or
Chirwa
,
which are restricted to conclusions that unfair dismissals and unfair
labour practices will normally not constitute administrative
action
on account of adequate alternative remedies existing under the LRA.
Neither
Gcaba
nor
Chirwa
made any reference to
Ntshangase
,
or, as I have said, section 158(1)(h) of the LRA.
Chirwa
was decided before
Ntshangase
,
while
Gcaba
was handed down shortly after it. More recently, in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal,
[23]
the
Constitutional Court cited
Ntshangase
with approval, indicating implicitly that it saw no inconsistency in
the approach followed in that case with its own earlier
pronouncements.
[30]
Concern was expressed by Steenkamp J in
National
Commissioner of the SA Police and Another v Harri No and others
[24]
that
the existence of a remedy allowing administrative review of
disciplinary tribunals may result in something of an anomaly in
that
the imposition of a lesser sanction can be viewed as administrative
action from the perspective of the employer while it will
be a labour
practice from the perspective of an aggrieved employee. That is true.
But, as the Constitutional Court pointed out
in
Gcaba,
it is not unusual for the same facts to give rise to different causes
of action. An employer reviewing a sanction will normally
be seeking
a severer penalty, while the employee will be alleging an unfair
labour practice and seeking no sanction or a lesser
sanction. Should
an employee seek an administrative law review of a lesser sanction he
or she risks a finding, in accordance with
the line of thinking in
Gcaba
,
that the decision is not administrative action in terms of PAJA or
that judicial policy as expressed in the Constitution dictates
that
the common law be developed to confine the remedy of review in
section 158(1)(h) to legitimate challenges where there is no
other
available remedy. If a cause of action meets the definitional
requirements of an unfair labour practice or an unfair dismissal,
the
dictates of constitutional and judicial policy mandate that the
dispute be processed by the system established by the LRA for
their
resolution.
[31]
Insofar as a review of the decision of a presiding officer by an
employer under section 158(1)(h) appears anomalous in that
it
involves the review of a decision which in law is its own, the SCA in
Ntshangase
,
taking guidance from its own decision in
Pepcor
Retirement Fund and another v Financial Services Board,
[25]
and keeping in mind the effective delegation that occurs through the
provisions of collective agreements negotiated by collective
bargaining at industry level, held that the employer had
locus
standi
to bring a review. It said in this regard:
[26]
‘
Undoubtedly,
the second respondent has an interest in ensuring that fair labour
practices are upheld in its employment relationships.
The same holds
true for its employees. All actions and/or decisions taken pursuant
to the employment relationship between the second
respondent and its
employees must be fair and must account for all the relevant facts
put before the presiding officer. Where such
an act or decision fails
to take account of all the relevant facts and is manifestly unfair to
the employer, he/she is entitled
to take such decision on review.
Moreover, the second respondent has a duty to ensure an accountable
public administration in accordance
with section 195 and 197 of the
Constitution. I, therefore, find that the second respondent had the
necessary
locus
standi
to take Dorkin’s action on review to the Labour Court.’
The
reasoning is a sound exposition of the requirement of standing in
this context. I respectfully agree with it. Moreover, and
in any
event, recently, in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal,
[27]
the
Constitutional Court approved the finding of the SCA on this issue.
[32] In conclusion,
therefore, the first respondent had the standing and right to seek
review of the second respondent’s decision
on administrative
law grounds by the Labour Court in terms of section 158(1)(h) of the
LRA.
[33] It is common cause
that the appellant was correctly found guilty of the misconduct with
which he was charged. The most serious
aspect of the misconduct is
the element of dishonesty associated with his having signed off on
representations prepared on his
behalf, which he knew were untrue,
and by which he intended to have his speeding fines quashed and
thereby to benefit financially.
The first respondent contends that
the sanction of suspension without pay for 10 days coupled with a
final written warning effective
for 12 months is an inappropriate
sanction which is so startlingly disproportionate and unreasonable
that no reasonable person
could have reached such a decision. The
appellant argued that the second respondent applied his mind to all
the evidence, concluded
that the relationship had not irretrievably
broken down and thus made a decision within the boundaries of
reasonableness.
[34] The second
respondent was evidently aware of the seriousness of the second
charge on account of the element of fraudulent dishonesty.
However,
he reasoned that it cannot be simply accepted from the nature of the
offence that the relationship between employer and
employee had been
irretrievably eroded. This needed, in his view, to be proved on the
evidence and he determined that the employer
had not proved that the
relationship of trust had broken down irretrievably. He was also of
the opinion that the ease with which
and the manner in which the
quashing of the speeding fines was sought and accomplished showed
that the practice was a common one
and thus less deserving of
censure. He further took account of the fact that the appellant had a
clean record and that his job
was primarily an administrative one.
[35] The first respondent
submitted in the Labour Court and in this Court that an analysis of
the reasons for the sanction disclosed
that the second respondent
failed to appreciate the seriousness of the second charge. Counsel
for the first respondent, Mr Steltzner
SC, emphasised before us that
the offence involved more than “an element” of
dishonesty, as the second respondent found
but was in fact a grossly
dishonest act, committed with deliberate intent and involved the
instructing of subordinates to participate
in the commission thereof.
It therefore involved a significant abuse of authority and possibly
criminal conduct by the official
in the municipality tasked with
overall responsibility for law enforcement. His conduct, it was
argued, rendered him wholly unsuitable
to occupy his post. The
existence of a practice to quash staff fines after making
representations, if such was the case, could
not condone the making
of fraudulent representations by an official in the position of the
appellant.
[36] As for the
prevalence of the practice, it ought to have been self-evident,
according to the first respondent, that the appellant,
as the person
responsible for the eradication of the practice, was expected to lead
by example and not to legitimise and perpetuate
it. The evidence
before the disciplinary hearing points to a lack of appreciation on
the part of the appellant of the nature, effect
and employment
implications of his conduct. Counsel submitted quite rightly that not
dismissing the appellant in the circumstances
will convey an
impression of laxity to more junior employees. If the most senior
employee responsible for maintaining law and order
in the
organisation is treated too leniently for dishonest misconduct, more
junior employees could argue on the basis of consistency
that they
are entitled to expect equal if not greater leniency.
[37] Moreover,
dishonesty, malfeasance and impropriety at the highest level of any
organisation will invariably impact negatively
on the culture of
probity within the organisation. The problem is well captured in the
colloquial adage: “the fish rots from
the head down”. It
was submitted therefore that little weight should be attached to the
appellant’s clean record. The
mere facts of the appellant’s
position, the nature of the misconduct, and his active involvement of
his subordinates in it,
are sufficient to sustain an inference that
the requisite degree of trust in the relationship had been
irretrievably damaged.
[38] The second
respondent, it was contended, wholly failed to apply his mind
properly or to give consideration to these material
considerations
with the consequence that the decision he reached on sanction bore no
rational relationship to the evidence and
the purposes of the
disciplinary code with the result that it was irrational and
additionally was so unreasonable that no reasonable
decision-maker
could have made it. The presiding officer’s failure in this
regard, it was further argued, was compounded
by his attaching no or
insignificant weight to the appellant’s demonstrated lack of
credibility in his testimony, which further
brought his integrity
into question.
[39] The appellant
aligned his submissions with the reasoning of the second respondent.
He emphasised his record of 17 years clean
service, his relatively
harmonious relationship with his superiors and the fact that
discipline should be corrective and progressive.
The evidence, he
maintained, was insufficient to support a finding that the
relationship had irretrievably broken down and the
continuation of
the relationship had become intolerable. Consequently, he submitted,
the decision of the second respondent was
both rational and
reasonable.
[40] Steenkamp J in the
Labour Court essentially agreed with the first respondent. The
learned judge was much influenced in his
conclusion by the nature and
requirements of the position of trust held by the appellant. He
stated:
‘
In that
eponymous position, he should have ensured that the law is enforced;
instead, he flouted the law and then dishonestly tried
to defeat the
ends of justice. If that does not signal the destruction of a trust
relationship with his employer, a state entity
charged with serving
the ratepayers of the Overstrand, not much will.’
The second respondent
also placed reliance upon his understanding that the misconduct was
remote from the appellant’s actual
duties, taking into account
as a mitigating factor the fact that “die klagtes totaal
verwyder is van Hendricks se pligte
as Hoof: Wetstoepassing”.
In relation to this, the court
a quo
said:
‘
The finding
that the charges were not connected to the employee’s duties is
also entirely irrational and devoid of logic.
The employee falsely
misrepresented exactly that to be the position, i.e. that he incurred
the speeding fines in the execution
of his official operational
duties. That was a lie. Yet the chairperson accepts the fact that it
was not so connected, contrary
to the employee’s evidence, as a
mitigating factor.’
[41] The learned judge’s
final conclusion is worth repeating in full. He said:
‘
Given the
seriousness of the misconduct and the position of the employee as
chief of law enforcement, the sanction imposed by the
chairperson was
irrational and unreasonable. He clearly did not apply his mind to the
factors outlined above. The mitigating factors
that he took into
account do not remove the operational need of the municipality to
ensure that senior officials in those positions
are exemplary in
their conduct and can be trusted by the municipality and by the
public. There is also a constitutional obligation
on the municipality
imposed by section 152 of the Constitution to provide accountable
government for local communities; to ensure
the provision of services
to those communities; and to promote a safe and healthy environment.
If the employee were to remain in
the employ of the municipality, it
would be failing in its duties to its ratepayers.’
I agree with this
succinct and lucid summation and see no need to add to or elaborate
upon it. The logic of it and its rationale
are unassailable.
Accordingly, the learned judge did not err in setting aside the
second respondent’s determination on the
grounds of
irrationality and unreasonableness. He also did not err in deciding
not to remit the matter to the disciplinary hearing.
The nature and
gravity of the misconduct are such that dismissal is the only
appropriate sanction; there would be no purpose in
remitting it, and
hence the learned judge acted correctly by substituting a sanction of
dismissal.
[42] As regards costs,
sight ought not to be lost of the fact that the appellant was
defending the decision of an internal tribunal
which was in his
favour. He probably assumed reasonably enough that there was merit in
his case. His dismissal is likely to lead
to some hardship. In the
circumstances, it is justifiable not to make any order as to costs.
[42]
In the result, the appeal is dismissed.
JR
Murphy AJA
I agree
Musi
JA
I
agree
Setiloane AJA
APPEARANCES
:
FOR
THE APPELLANT: In person
FOR THE RESPONDENT:
Adv RGL Steltzner SC
Instructed By:
Fairbridges Attorneys
[1]
Act 66 of 1995.
[2]
See
National
Commissioner of the SA Police and another v Harri No and others
(2011) 32 ILJ 1175 (LC).
[3]
2010 (3) SA 201 (SCA).
[4]
(2008) 29 ILJ 73 (CC).
[5]
2010 (1) SA 238 (CC).
[6]
Act 3 of 2000.
[7]
At paras 143-144.
[8]
At para 64.
[9]
See
MEC
for Finance, KwaZulu-Natal v Dorkin NO
(2008) 29 ILJ 1707 (LAC).
[10]
2008 (2) SA 24 (CC).
[11]
President of the RSA v SARFU
2000
(1) SA 1 (CC).
[12]
See
sections 6
,
50
,
51
and
55
of the
Local Government: Municipal Systems Act 32 of 2000
and
section 61
the
Local Government: Municipal Finance Management Act 56 of 2003
.
See also section 152(a) of the Constitution.
[13]
2014 (4) SA 298
(SCA) 309B-D; see
also
MEC for the Department
of Health, Western Cape v Weder
(2014) 35
ILJ
2131 (LAC) at para 33.
[14]
Democratic Alliance v President of
the Republic of South Africa and Others
2013
(1) SA 248 (CC)
[15]
Turner v Jockey Club of South
Africa
1974 (3) SA 633
(A); and
Theron v Ring van
Wellington van die NG Sendingkerk in Suid-Afrika
1976
(2) SA 1 (A).
[16]
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC); and
Pharmaceutical
Manufacturers Association of SA: In re Ex Parte President of the
Republic of South Africa
2000
(2) SCA 674 (CC).
[17]
2006 (3) SA 73
(T) at para 24.
[18]
Hoexter
Administrative
Law in South Africa
(1
st
ed) 124-125.
[19]
MEC Department of Education
Kwazulu Natal v Khumalo
[2010] 11 BLLR 1174 (LC).
[20]
At para 53-55.
[21]
Gcaba
at para 56.
[22]
Pharmaceutical Manufacturers
Association of SA: In re Ex Parte President of the Republic of South
Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 85.
[23]
(2014) 35
ILJ
613 (CC) at para 32.
[24]
(2011) 32 ILJ 1175 (LC).
[25]
2003 (6) SA 38 (SCA).
[26]
At para 18.
[27]
(2014) 35
ILJ
613 (CC) at para 32