Revisiting the factual test in s 197 transfers (Harsco Metals South Africa (Pty) Ltd AA v Arcelormittal South Africa Ltd AO [2011] ZALCJHB 116)

Posted: January 23, 2012 in Uncategorized
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Van Niekerk J, with the benefit of the Constitutional Court judgment in AUSA v SAA & Others, revisited the factual test applicable to the transfer of a business as a going concern.

In this regard and at para [37] Van Niekerk J held that:-

1. “The fact that Phoenix and Tube City will not take transfer of the plants is an important factor, but not in itself an overriding one”.

2. “the factual circumstances particularly to be taken into account in determining whether the conditions for a transfer of whole or part of a business as a going concern for the purposes of s 197 are met are primarily”

2.1. “the degree of similarity of the activity carried on before and after the transfer and the type of undertaking concerned”, and

2.2. “the question whether or not the majority of the employees are to be taken over by the new employers”.

Test applicable to the interpretation of collective agreements

Posted: December 12, 2011 in Uncategorized
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In South African Municipal Workers Union (SAMWU) v South African Local Government Association [2011] ZALAC 22 Mlambo JP at para [15] found that a collective agreement should be interpreted in line with the dicta in National Education Health and Allied Workers Union v University of Cape Town and Others [2002] ZACC 27; 2003 (3) SA 1 (CC) the Constitutional Court at para 41 stated that “[t]he declared purpose of the LRA ‘is to advance economic development, social justice, labour peace and the democratisation of the workplace’. This is to be achieved by fulfilling its primary objects, which include giving effect to s 23 of the Constitution. It lays down the parameters of its interpretation by enjoining those responsible for its application to interpret it in compliance with the Constitution and South Africa’s international obligations. The LRA must therefore be purposively construed in order to give effect to the Constitution”.

Mlambo JP then at para [16] gave an indication of exactly how the said dicta should be applied by recording that the commissioner presiding “proceeded to interpret the agreement in a practical manner that he deemed was fair and equitable in those circumstances” applicable.

Bombardier Transport Revisited

Posted: December 8, 2011 in Uncategorized
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Van Niekerk J once put it mildly by stating that “Section 135 (5) [of the Labour Relations Act, Act 66 of 1995 (‘the LRA’), to the extent that it considers the issuing of a certificate to be mandatory, sits uncomfortably with those provisions of the Act that regulate the statutory dispute resolution process beyond the conciliation stage”.

Sec 135(5)(a) of the LRA records that:-

“When a conciliation has failed, or, at the end of the 30 day period or any further period agreed between the parties... [t]he commissioner must issue a certificate stating whether or not the dispute had been resolved”

The section it sits “most” uncomfortable with is section 191(5)(1)(a) of the LRA which records that: -

“If a council or a commissioner has certified that the dispute remains unresolved, or, if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved… [t]he council or the Commission must arbitrate the dispute at the request of the employee…”

In Fidelity Guards Holdings (Pty) Ltd v Epstein and others [2000] ZALAC 8 Zondo JP at para [12] held that

“It is the setting aside of the certificate of outcome that would render the CCMA or the council to be without the jurisdiction to arbitrate”

He then stressed this point para [14] and recorded that: -

“I also agree with the views expressed by the court a quo in par 15 of its judgement. There the learned judge had this to say: “‘To my mind jurisdiction of the court under section 191(5) flows from the existence of the appropriate certificate in those classes of dispute which have to be referred to the court’”.

Van Niekerk J in Bombardier Transportation (Pty) Ltd v Mtiya and Others [2010] ZALC 34; (2010) 31 ILJ 2065 (LC) ; [2010] 8 BLLR 840 (LC) (“the Bombardier-case”) at para [14] held that “[a] certificate of outcome is no more than a document issued by a commissioner stating that on a particular day, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not the certificate of outcome has been issued. Jurisdiction is not granted or afforded to it by a CCMA commissioner issuing a certificate of outcome. Jurisdiction either exists as the fact or it does not”.

This view is based on interpreting section 135(5)(a) of the LRA in a manner so as to accentuate the fact that the certificate is to provide clarity as to whether the dispute was resolved or not. This view however appear to have lost site of the next section, i.e. section 136 of the LRA which records that “[i]f this Act requires a dispute to be resolved through arbitration, the Commission must appoint a commissioner to arbitrate that dispute if a commissioner had issued a certificate stating that the dispute remains unresolved; and within 90 days after the date on which that certificate was issued, any party to the dispute has requested that the dispute be resolved through arbitration”.

This section makes it clear that the certificate must stipulate that the dispute remains unresolved. One might thus pose the question whether the CCMA would have jurisdiction to arbitrate the dispute where the certificate erroneously records that the dispute has been resolved?

What immediately comes to mind is the famed dicta of Zondo JP in Fidelity Guards Holdings (Pty) Ltd v Epstein and others [2000] ZALAC 8 (“the Fidelity Guards-case”) where he at para [12] clearly stated that “[i]t is the setting aside of the certificate of outcome that would render the CCMA or the council to be without the jurisdiction to arbitrate” and at para [14] that “I also agree with the views expressed by the court a quo in par 15 of its judgement. There the learned judge had this to say: ‘To my mind jurisdiction of the court under section 191(5) flows from the existence of the appropriate certificate in those classes of dispute which have to be referred to the court’”.

The said dicta on the face of it seems in direct conflict with the Bombardier-case but Van Niekerk J overcomes this problem by at parra [9] recording that it “is not clear to me that the judgment serves as authority for the assertion that a certificate of outcome affords the CCMA jurisdiction to arbitrate an unfair dismissal dispute. In truth, Fidelity Guards is concerned only with the proposition that a failure to review an administrative act timeously may result in that act acquiring the force of law (in the sense that it will not be susceptible to review) even though the act is invalid and unlawful”.

This is clearly not the case, Zondo JP’s remarks are clearly to the fact that the issuing of a certificate of outcome constitutes a jurisdictional fact entitling the matter to proceed to arbitration.

One might further pose the question as to why Van Niekerk J’s judgment in the Bombardier-case is even mentioned if it appear clearly in conflict with the dicta of the Labour Appeal Court.

The need for further scrutiny came about in consequence of the following statement by Landman AJA in BMW South Africa (Pty) Ltd v NUMSA obo Members [2011] ZALAC 24 (“the BMW-case”) at para [30] where he states that “[t]he Labour Court declined to review and set aside the CCMA’s certificate of outcome citing Van Niekerk J in Bombadier Transportation (Pty) Ltd v Miya NO and Others (2010) 8 BLLR 840 (LC) at para 15. This approach is the correct one. See Waglay JA (as he then was) in Gillet Exhaust Technology (Pty) Ltd t/a Tennaco v NUMSA on behalf of Members and Another (2010) 31 ILJ 2552 (LAC) ["the Gillet-case"] at para 17″.

At the outset it need be noted that the said case dealt with a certificate issued in relation to strike action (where neither sections 135 or 136 of the LRA find application). Waglay DJP in the Gillet-case at para [17] also dealt with a certificate where sections 135 and 136 of the LRA where not applicable and correctly recorded that “[t]he appellant’s prayer for the setting aside of the certificate of non-resolution of the dispute is misconceived. I say this because whether the certificate of non-resolution is valid or not, in this case this did not affect the legality of the strike the employees may have been planning to embark upon. This is so because in terms of s64(1) (a) (i) and (ii) of the Act a strike will be a protected strike even if there is no certificate of non-resolution of the dispute provided that a period of 30 days from the date of the referral of the dispute to conciliation has lapsed and all the other requirements of s64 of the Act have been complied with”.

There is thus no nexus between the Bombardier-case and the BMW-case. In as far as the Court a quo in the BMW-case relied on Van Niekerk J’s dicta it may be argued that it is correct as in matters where sections 135 and 136 are not applicable, Van Niekerk J’s remarks cannot be faulted. It is further true that sections 135 and 136 of the LRA are unfortunate and that Van Niekerk J’s approach is to be preferred and that statutory intervention pertaining to the said sections are required. The judgment however remains patently in conflict with that of Fidelity Guards and Ladman AJA’s acceptance of the judgment must thus be interpreted as both obiter and limited to its effect on certificates where sections 135 and 136 of the LRA finds no application.

Will the renewal of fixed term contracts ever entitle an employee to claim that her employment became permanent – University of Pretoria v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 25

Posted: December 7, 2011 in Uncategorized
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The employee was employed in terms of a number of renewed fixed term contracts.

 

The employee was eventually offered a further fixed term contract which the employee declined on the basis as surmised by the LAC in the following terms “[o]nce an employee has established a reasonable expectation of a renewal of a fixed term contract, an obligation is created to renew this contract indefinitely on the same or similar terms, subject to a fair reason for refusing to do so. Therefore, once a contract has been renewed because there was a reasonable expectation of a renewal, taking into account the series renewal of the employee’s fixed term contract in the past, this expectation creates an obligation to renew indefinitely and, in this fashion, the obligation transforms so as to create a duty upon the employer to offer the employer a permanent contract”. [at para 16]

 

The Court, per Davies JA found that had the employee not been offered a further fixed term contract, then depending on the evidence, she could be entitled to proceed in terms of s186(1)(b) of the LRA. That would, however, not be a case based, as is this one, on a different form of employment, being a permanent contract. The words chosen by the legislature, absent an amendment to the legislation, cannot carry the burden of third respondent’s case in that it covers a restrictive set of circumstances, namely a reasonable expectation of a renewal of that which had previously governed the employment relationship, namely a fixed term contract which had previously been enjoyed, which had now expired and, by virtue of the factual matrix created, at best, a reasonable expectation of a renewal. [at paras 21 and 22].

 

One need however differentiate between a true fixed term contract and one used merely to circumvent either probation or the application of the law pertaining to dismissal

Be careful what you ask for – NEHAWU obo Tumana v CCMA & Others [2011] ZALCPE10

Posted: December 5, 2011 in Uncategorized
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The employee obtained an arbitration award in her favour awarding her compensation in the amount of R 95 401. The employee however sought reinstatement and took the award on review. The employer some time later applied to have the review application dismissed on the basis of the employee’s failure to prosecute her review application. The employer succeeded and the employee shortly thereafter sought payment of the R 95 401 awarded to her. This despite, the employee then sought leave to appeal against the order dismissing her review application.

The Labour Court, per Lallie AJ, found that on the doctrine of peremption was applicable as the employee in seeking payment of the amount awarded accepted the order dismissing the review application. The employee was thus precluded from applying for leave to appeal as that would constitute her taking up two totally inconsistent positions.

And yet more on reinstatement – Visser v Mopani District Municipality & Others [2011] ZASCA 248

Posted: December 2, 2011 in Uncategorized
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The Labour Appeal Court recently stressed certain principles to reinstatement.  As such it was remarked that onus plays no role in determining whether an employee should be reinstated and that the decision is solely motivated by fairness to both parties.

 

In casu the employee was reinstated following an arbitration hearing where his dismissal was found to have been both procedurally and substantively unfair.  This decision  was unsuccessfully taken on review and consequently on appeal to the Labour Appeal Court.  The Labour Appeal Court found that the Labour Court correctly concluded that the award was not susceptible to review.  the Labour Appeal Court however went further and based on the fact that  the employee was not keen to work in a certain area and that a period of six years have passed since the issuing of the award, set aside the order to reinstate.  It might be noted that both these issue arose after the award was issued.

 

The employee appealed the matter to the Supreme Court of Appeal where Snyders J concluded that “[w]hen the LAC embarked on an investigation of facts that occurred subsequent to the award in relation to a determination of an appropriate remedy, it acted as if it was sitting as a tribunal of first instance and was therefore at large to impose such remedy as it deemed appropriate – which it was not. The LAC remained bound to the same test in relation to the remedy as to the merits of the appeal before it. As such the LAC misconceived the nature of its function, by imposing a remedy it regarded as appropriate in the circumstances having itself found that there was no ‘defect’ in the award made” [at paragraph 10].

 

The conclusion reached by Snyders J is not surprising and correct.  What is however of interest is the Labour Appeal Court’s recent willingness to come to the assistance of employers in circumstances where they are required (subsequent to an unsuccessful appeal) to retrospectively reinstate an employee.

The test pertaining to reinstatement revisted – Dunwell Property Services CC v Sibande &and Others

Posted: November 28, 2011 in Uncategorized
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In casu the employer by way of letter and in the absence of any enquiry terminated the employment of the employee.  This was done, apparently on advice from the Department of Home affairs, on the basis of the employee using South Africa using a false SA Identity document.

The Labour Appeal Court, per Ndlovu JA concluded that it was never found that the employee’s Identity Document was false and that as such the dismissal was both procedurally and substantively unfair (at paragraphs 21, 27 and 28).

Ndlovu JA however found that the employee should not be reinstated as the trust relationship had broken down completely and irretrievably, in consequence of certain post dismissal statements made by the employee in relation to senior personnel of the employer (at paragraph 34)

Interestingly Ndlovu JA expressly reiterated that “[w]hether or not an unfairly dismissed employee should be reinstated, as contemplated in section 193(2) of the LRA, the overriding consideration in the enquiry should be the underlying notion of fairness between the parties, rather than the legal onus, and that ‘[f]airness ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment.’ (Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others (2008) 29 ILJ 2507; also reported as [2008] ZACC 16; [2008] 12 BLLR 1129 (CC) at para 39)” (at paragraph 34).

It is thus clear that the Labour Appeal Court is giving due effect to the pronouncement by the Constitutional Court pertaining to fairness to both parties when considering reinstating an employee.

Generalisation and Second Generation Outsourcing – Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others [2011] ZACC 31

Posted: November 25, 2011 in Uncategorized
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The minority per Jafta J at paragraphs 47 and 48 held that “[w]hether a transfer as contemplated in section 197 has occurred or will occur is a factual question… “[S]peaking generally, a termination of a service contract and a subsequent award of it to a third party does not, in itself, constitute a transfer as envisaged in the section. In those circumstances, the service provider whose contract has been terminated loses the contract but retains its business. For a transfer to be established there must be components of the original business which are passed on to the third party. These may be in the form of assets or the taking over of workers who were assigned to provide the service” (own underscoring).

Jafta J then concludes (at paragraph 55) that “[r]eading section 197 as a whole in the context of where it is located in the LRA and paying sufficient attention to its purpose and the objects of the LRA, reveal that it applies to any transaction that transfers a business as a going concern. It follows that the majority in the Supreme Court of Appeal erred in holding that the section does not apply to second generation outsourcing agreements”.

The majority judgment, as pronounced by Yocoob J, finds common cause with the above findings by Jafta J and goes as far as stating (at paragraphs 15 and 106) that “[i]t does not matter in principle what the ‘generation’ of the outsourcing is, or even whether the transaction is concerned with contracting out at all. The true inquiry is whether there has been a transfer of a business as a going concern by the old employer to the new employer… In determining whether contracting out amounts to the transfer of a business as a going concern, the substance of the initial transaction, more specifically whether what is outsourced is a business as a going concern rather than the provision of an outsourced service remains significant during subsequent transfers. If the outsourcing institution from the outset did not offer the service, that service cannot be said to be part of the business of the transferor. What happens here is simple contracting out of the service, nothing more, nothing less”.

Yacoob J on analysing the facts concludes that in casu a transfer took place and more specifically records (at paragraph 121 et seq.) that “[L]GM became obliged to sell all fixed assets and inventory dedicated only to providing the services in terms of the agreement back to SAA and to transfer or assign all third party contracts to SAA… [M]oreover, the cancellation of the agreement would necessarily mean that LGM would no longer be entitled to the use of property and to the leases already described… [I]n the circumstances, the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider. It requires a transfer by a transferor, the old employer, to the transferee, the new employer”.

A SUMMARY OF THE LAW PERTAINING TO RETIREMENT AT “NORMAL RETIREMENT AGE”

Posted: November 24, 2011 in Uncategorized
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In terms of section 187(2)(b) of the Labour Relations Act, Act 66 of 1995 (“the LRA”) “[a] dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.

In Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) [1998] ZALC 48; [1999] 2 BLLR 188 (LC), the Zondo J (as he was then) at paragraph 27suggested the following test to determine whether section 187(2)(b) of the LRA find application: –

“(a) the dismissal must be based on age;

(b) the employer must have a normal or agreed retirement age for persons employed in the capacity of the employee concerned;

(c) the employee must have reached the age referred to in (b) above.”

It was held in Rubin Sportswear v SACTWU & others (2004) 25 ILJ 1671 (LAC); [2004] 10 BLLR 986 at 1678J that “[t]he word ‘normal’ as used in s 187(2)(b) really means what it says. It means that which accords with the norm” and further at 1679H that “[a] retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period… If the period is not sufficiently long but the number is large, it might still be that a norm has not been established”.

What is clear from this statement is that the failure to consistently retire employee at a certain age would vitiate against the existence of a normal retirement age. This was also the view expressed by Basson J in Gqibitole v Pace Community College [1999] ZALC 5; (1999) 20 ILJ 1270 (LC) at § [25] to § [27].

Zondo J (as he was then) further in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) supra at paragraph 18 interprets continued employment subsequent to retirement in the same vein as the Industrial Court previously did (see inter alia Harris v Bakker & Steyger (Pty) Ltd (1993) 14ILJ 1553 (IC) and Badenhorst v G C Baars (Pty) Ltd (1995) 10 BLLR 19 (IC)) but on the following interpretation of section 187(2)(b) of the LRA:-

“Bearing in mind, therefore, that sec 187(2)(b) refers to a dismissal, the position would be that the dismissal referred to in sec 187(2)(b) which is said to be fair is a dismissal as defined in sec 186. Dismissal in sec 187(2)(b) cannot carry a meaning which is different from the meaning of dismissal in sec 186. The fact that the coming to an end of the contract of employment by effluxion of time is not contemplated in the definition of dismissal in sec 186 meant that the dismissal in sec 187(2)(b) must include a dismissal after the employee has gone past the agreed or normal retirement age. That is the situation in this matter”.

The judgment seem to find express support inter alia in Rubenstrein v Price’s Daelite (Pty) Ltd 2002] ZALC 28; (2002) 23 ILJ 528 (LC); [2002] 5 BLLR 472 (LC) at paragraph 24.

The principles as set out by Zondo J is also applied in Botha v Du Toit Very & Partners CC [2005] ZALC 28; [2006] 1 BLLR 1 (LC) where there was no agreed retirement age and no formal contract of employment and the employee was dismissed more than a year after the normal retirement age. Revelas J found that the true reason for the termination of the applicant’s services was the operational requirement of the respondent and poor work performance by the employee. She further at paragraph 17 found the dismissal substantively fair but procedurally unfair, this despite finding that “[t]he Act also does not prescribe any procedure to be followed before a retirement age is announced, but for the reasons set out above, I believe there should be one”.

The need expressed by Revelas J to consult prior to terminations seems to finds its origin in the Industrial Court inter alia in Johane v Rand Mine Milling & Mining (1995) 16 ILJ 1249 (IC).

Moshoana AJ in Rockliffte v Mincom (Pty) Ltd [2007] ZALC 58; (2007) 11 ELLR (LC) at paragraphs [36] and [37] disagreed with the view that an automatic unfair dismissal can only be procedurally unfair as “there is no basis upon which an automatically unfair dismissal could be procedurally fair only. In terms of section 188(1) a dismissal that is not automatically unfair if the employer fails to prove the dismissal was effected in accordance with a fair procedure. The wording of the section suggests that automatically unfair dismissals become so if the reason for it is prohibited. It does not matter if some form of procedure proceeds [sic!] such a dismissal” but followed Zondo J’s reasoning in finding that “[i]n an automatically unfair dismissal claim the inquiry ends at the point where, if a defence or having reached an agreed age is raised, such age has been reached. What happens afterwards is immaterial unless a defence of waiver is successfully raised’.

Pertinently, Professor John Grogan in “No Work for the Aged” (Employment Law: Volume 14 No. 6 (March 1999)) criticizes Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) on the basis that “[i]f, as the Judge appears to suggest, every indefinite-period contract which contains a compulsory retirement clause is, in fact, a protracted fixed term contract that terminates automatically when the employee reaches retirement age, what purpose is served by Section 187(2)(b)? The dismissals to which it refers can, on this view, never happen. Furthermore this reasoning does not address Judge Zondo’s concern about the unfairness of giving employers carte blanche to dismiss employees whom they have permitted to work beyond retirement age. The answer to that, one would have thought, lies in the actual wording of Section 187(2) (b). It says a dismissal is fair if the employee has reached retirement age, not when he reaches it”.

At the outset this is with respect not what Zondo J (as he was then) in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) suggests, in fact it is exactly the opposite, i.e. that the a dismissal in terms of section 187(2)(b) of the LRA cannot be equated to the termination of a fixed term contract as fixed term contracts are expressly excluded from the definition of dismissal.

Further and prior to turning to the cases which stand critical of Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd), one might regard the dicta in Wanless v Fidelity (Pty) Ltd [2007] ZALC 107where D. Pillay J at paragraph 32 found that “[t]he Court accordingly finds that Mrs Wanless was not dismissed. Her services terminated in accordance with her contract of employment when she reached the retirement age of age 60. Section 187(2)(b) of the LRA stipulates that dismissal based on age is fair if the employee has reached the normal or agreed retirement age. Therefore, in so far as Mrs Wanless suggested that her services were not terminated by the effluxion of time but at Fidelity’s will, section 187(2) makes it clear that such a dismissal would be fair”.

It is unclear as to why D. Pillay J initially concluded that the applicant was not dismissed as it appears trite that section 187(2)(b) of the LRA deals with a dismissal.

The criticism aired by Professor Grogan’s finds at least obiter support in Datt v Gunnebo Industries (Pty) Ltd [2009] ZALC 23; [2009] 5 BLLR 449 (LC) per Steenkamp AJ (as he was then) at paragraph 27 and clear support in Randall v Ivor Michael Karan t/a Karan Beef [2010] ZALC 114; (2010) 31 ILJ 2449 (LC) where Francis J records that “[i]t cannot and is not our law that an employer can unilaterally decide when to retire an employee who it has required to work beyond his retirement age… The position would have been different if the applicant was dismissed after he had reached his retirement age. He would have had no claim. Where the respondent on its own decided to keep him in employment beyond that period there would have to be a fair reason to terminate his services”.

Though the ratio in Randall v Ivor Michael Karan t/a Karan Beef appears in line with the principles of fairness applicable to the limitation of statutory and constitutional rights, the interpretation afforded in Schweitzer v Waco Distributors (a division of Voltex (Pty) Ltd) appears more correct.

In the end one thus has to agree with Bosch in ‘Section 187(2)(b) and the Dismissal of Older Workers – Is the LRA Nuanced Enough?’ ((2003) 24 ILJ 1283 at 1303) who opines that “[w]here an employee has been dismissed upon or after attaining the agreed or normal retirement age for an employee employed in that capacity, it has been held that section 187(2)(b) operates to preclude employees from challenging the fairness of that dismissal. Section 187(2)(b) also appears to limit the right to equality. It is a justification for dismissals that might otherwise be considered unfairly discriminatory on the grounds of an employee’s age. While there might be sound policy arguments for permitting mandatory retirement ages, that must be done in light of the constitutional guarantee of equality and fair labour practices”.

Can an employer seek the review of a disciplinary sanction?

Posted: December 6, 2010 in Uncategorized
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In SAPS v Hari N.O. and Another the SAPS contended that the disciplinary sanction imposed by an SAPS senior commissioner presiding over the hearing was in fact not harsh enough.

 

The SAPS submitted that the presiding officer executed an administrative function and as such his findings were open to review.

 

The court per Steenkamp J, applied the judgment in MEC for Finance, KwaZulu-Natal & another v Dorkin NO & another where it was held that, if the conduct of compulsory arbitrations relating to dismissal disputes under the Labour Relations Act constitutes administrative action, then the conduct of disciplinary hearings in the workplace, where the employer is the State also constitute, 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 court thus concluded that “[t]he applicants qua the state appointed the first respondent as chairperson of the employee’s disciplinary enquiry in this case. As in the case of Ntshangase, the action of the chairperson qualifies as administrative action. That being so, the action must be lawful, reasonable and procedurally fair” (at §31).  \

 

One is however immediately reminded of the dicta by the constitutional court in Chirwa v Transnet Ltd and others where Ngcobo J explained that “[t]he subject-matter of the power involved here is the termination of a contract of employment for poor work performance. The source of the power is the employment contract between the applicant and Transnet. The nature of the power involved here is therefore contractual. The fact that Transnet is a creature of statute does not detract from the fact that in terminating the applicant’s contract of employment, it was exercising its contractual power. It does not involve the implementation of legislation which constitutes administrative action” (at §142).

 

Steenkamp J was however alive to the following dicta by CJ in the Chriwa-judgment: – “It is important to note, however, that my reasoning does not entail that dismissals of public employees will never constitute ‘administrative action’ under PAJA. Where, for example, the person in question is dismissed in terms of a specific legislative provision… the requirements of the definition of ‘administrative action’ may be fulfilled” (at §194).

 

As such Steenkamp J concluded that “the distinction appears to me to lie in the fact that, in this case, the state is acting qua employer; and the functionary is fulfilling his or her duties in terms of legislation” (at §21).

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