About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 44
|
|
Laubscher v GPSSBC and Others (J290/16) [2018] ZALCJHB 44 (5 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: J2906/16
In
the matter between:
LAUBSCHER
AJ
Applicant
and
GPSSBC
DEPARTMENT
OF INTERNATIONAL
RELATIONS
AND CO-OPERATION (DIRCO)
MJ SIAVHE N.O.
First
Respondent
Second
Respondent
Third respondent
Heard:
6 June 2017
Delivered:
6 June 2017
Date
of Reasons: 5 February 2018
Summary:
Application to declare disciplinary proceedings invalid
JUDGMENT-REASONS
FOR ORDER
COETZEE.
AJ
Introduction
[1]
The applicant applied to Court for certain relief and the
matter serves before Court on the unopposed motion role.
[2]
The matter was heard on 6 June 2017 when an order was made. I
record on the court file that ex-tempore reasons were given. The
audio
recording however shows that an order was made but that no
reasons were provided at the time.
[3]
The applicant has requested the reasons for the ex-tempore
judgement. These are the reasons.
The
Facts
[4]
The applicant is employed by the second respondent.
[5]
The applicant was under about 6 September 2016 charged with
seven charges relating to offences allegedly committed over the
period
October 2014 to July 2015. It was in the main alleged that the
applicant approved and authorised medical expenses.
[6]
The parties agreed to a pre-dismissal enquiry under the
auspices of the second respondent (the GPSSBC).
[7]
The first attempt to hold the enquiry was on 6 October 2016.
The parties by agreement postponed the disciplinary hearing to
prepare
properly for such a hearing.
[8]
The GPSSBC informed the parties that the disciplinary
proceedings would be enrolled for hearing on 27 February 2017.
[9]
A pre-arbitration meeting was held on 10 February 2017. The
employer made promises to furnish documents and information. None of
those promises were kept.
[10]
At the pre-arbitration hearing, the parties agreed to postpone
the disciplinary hearing set down for 27 February 2017.
[11]
The GPSSBC informed the parties that the disciplinary
proceedings were enrolled for 10 May 2017.
[12]
The proceedings culminated in a notice dated 28 March 2017 in
which the employer withdrew all charges against the employee. A
notice
contained an incorrect case number and upon a request from the
applicant a further notice was served on 30 March 2017 withdrawing
all the charges against the applicant. The state attorney acting for
the employer on the same date withdrew as attorney of record.
[13]
The applicant submits that the employer took so long to
commence with disciplinary proceedings that the employer has waived
its
right to do so.
[14]
The provisions of the Disciplinary Code and Procedure for the
Public Service (Resolution 1 of 2003) find application to
disciplinary
proceedings instituted by DIRCO.
[15]
Clause 2.2 of Resolution 1 of 2003 provides that discipline
must be applied in a prompt, fair, consistent and progressive manner
and in terms of Clause 7.3 (a) the disciplinary hearing must be held
within 10 working days after the disciplinary notice is delivered
to
the employee.
[16]
It is undisputed that the employer took disciplinary action
only during September 2016 in respect of offences allegedly committed
over the period October 2014 to July 2015. In addition, the
disciplinary hearing was not conducted or commenced with within 10
working days of the notification.
[17]
The disciplinary proceedings contemplated by the employer were
unbalanced for non-compliance with the Resolution.
[18]
The applicant has no undertaking from his employer that the
disciplinary process would not be resurrected. The applicant fears
that
the employer may in fact resurrect the disciplinary proceedings.
[19]
The applicant has amended his notice of motion to declare the
disciplinary proceedings invalid and to interdict the second
respondent
from proceeding with any disciplinary action during the
period when the alleged misconduct occurred.
[20]
The applicant has made out a case for the relief sought. The
applicant has an apprehension that the employer may again resurrect
the disciplinary charges. Those disciplinary proceedings would be in
breach of the Resolution.
Costs
[21]
I have considered costs: The
applicant commenced with an application to compel the second
respondent to provide information and
documents. The second
respondent made promises which it did not keep and eventually
withdrew all allegations of misconduct. The
applicant then pursued an
interdict to ensure that the charges would not be resurrected.
[22]
I have regard to the fact that the second
respondent did not oppose the relief sought. The second respondent
precipitated an application
by the applicant. The parties are still
in an employment relationship. Having regard to these factors I am
not inclined to exercise
my discretion in favour of a cost order in
an unopposed application of this nature.
[23]
I make
the
following order:
Order
1.
The disciplinary proceedings against the applicant by the second
respondent under
the auspices of the first respondent are declared
invalid.
2.
The second respondent is
interdicted
from proceeding with any disciplinary action against the
applicant in respect of the premises that applicant was stationed at
the
Republic of South Africa's Permanent Mission at the United
Nations in New York.
3.
There is no order as to costs.
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Advocate Riaan Grundlingh
Instructed
by:
Gildenhuys Malatji Inc.
For
the Respondents:
No appearance
(unopposed)