Employment law update – Can abandoned disciplinary action amount to an unfair labour practice?

March 1st, 2023

In Department of International Relations and Cooperation v Laubscher and Others [2023] 1 BLLR 1 (LAC), the employee was served with a notice to attend a disciplinary hearing for misconduct allegedly committed when he was stationed at the South African Permanent Mission of the United Nations in New York. Instead of holding a disciplinary hearing, the employee and the Department of International Relations and Cooperation (DIRCO) agreed to a pre-dismissal arbitration as envisaged in s 188A of the Labour Relations Act 66 of 1995 (LRA).

The employee’s attorneys requested DIRCO to, among other things, furnish further documents to enable the employee to respond to the allegations. DIRCO, however, repeatedly failed to adhere to the request, which culminated in the employee launching an application in the General Public Service Sector Bargaining Council (GPSSBC), and thereafter the Labour Court (LC), to compel DIRCO to furnish the documents. The employee also sought an order interdicting DIRCO from proceeding with the pre-dismissal arbitration. Pursuant to these applications, DIRCO withdrew all the charges against the employee.

The withdrawal of the charges prompted the employee to refer an unfair labour practice dispute to the GPSSBC in terms of s 186(2)(b) of the LRA. An unfair labour practice for purposes of s 186(2)(b) of the LRA means ‘any unfair act or omission that arises between an employer and an employee involving –

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’. At arbitration, the GPSSBC arbitrator held that as the disciplinary proceedings had been aborted and no disciplinary sanction had been imposed against the employee, the employee’s dispute fell outside the ambit of s 186(2)(b) of the LRA and the GPSSBC thus lacked jurisdiction to hear the dispute.

Dissatisfied with the outcome, the employee took the ruling on review to the LC. The LC found that notwithstanding that DIRCO later withdrew the charges against the employee, DIRCO had still instituted disciplinary action against the employee and this disciplinary step fell within the ambit of s 186(2)(b) of the LRA. It accordingly found that the GPSSBC was incorrect in ruling that it had no jurisdiction to hear the dispute and, on the basis that the employee had been humiliated and suffered reputational damage, it awarded the employee compensation equivalent to six months’ salary and costs in respect of both the disciplinary proceedings and the review application.

DIRCO took the matter on appeal to the Labour Appeal Court (LAC). The question for determination before the LAC was whether an aborted disciplinary process constitutes ‘disciplinary action short of dismissal’ as contemplated in s 186(2)(b) of the LRA.

The LAC noted that neither the LRA, nor the explanatory memorandum provides an explanation of what would constitute a disciplinary action short of dismissal. Over the years, the LC’s have understood the reference to ‘any other unfair disciplinary action short of dismissal’ to include disciplinary action in the form of warnings or any action intended to correct the employee’s conduct which is short of as dismissal. In the present matter, the LC attempted to distinguish between what it termed disciplinary ‘action’ and a disciplinary ‘sanction’ to justify a construction that the aborted disciplinary process constituted disciplinary ‘action’ short of dismissal. The LAC found that this amounted to a strained interpretation of the statutory provision, particularly if one had regard to the Code of Good Practice: Dismissal set out in sch 8 of the LRA.

In this regard, the LAC noted that the phrase ‘short of dismissal’ is linked to ‘disciplinary action’. On a plain reading of the phrase, together with the Code of Good Practice: Dismissal, the phrase refers to a sanction less severe than dismissal. Accordingly, a disciplinary inquiry, which had not yet commenced or had been abandoned without the imposition of a disciplinary penalty, cannot be equated to disciplinary action short of dismissal as contemplated in s 186(2)(b) of the LRA. On this basis, the LAC held that an unfair labour practice as envisaged in s 186(2)(b) does not embrace the present dispute, which the employee had referred to the GPSSBC.

The LAC held further that, in any event, a pre-dismissal arbitration process under s 188A of the LRA is conducted by agreement between the parties. It was, therefore, inconceivable that an employee would agree to that process and on its withdrawal, claim that he had been subjected to a disciplinary process short of dismissal.

Finally, the LAC confirmed that the LC did not have the jurisdiction to determine whether DIRCO had committed an unfair labour practice and to award the employee compensation. The fact that the LC is a court of equity does not in any sense supplement the jurisdiction of the court. The inquiry in the LC should have ended when it found, albeit incorrectly, that the GPSSBC had jurisdiction to entertain the dispute.

The appeal was upheld.

Unfair discrimination as a result of a protected disclosure

In Tanda v MEC, Department of Health [2023] 1 BLLR 95 (LC), the employee was employed by the Department of Health (the Department) as a data-capturer. When the Department embarked on an extensive recruitment process, the employee was requested to assist with the process in the Human Resources (HR) department.

While recruiting for the position of administrative clerk, the employee was instructed by a manager to include a fellow employee’s niece in the batch of shortlisted applications on the basis that she had been overlooked. As the selection panel had not shortlisted the individual for the position, the employee refused the instruction and advised the manager that the Department’s HR policies and procedures required her to reconvene the selection panel so that it could deal with the alleged oversight. The employee then reported the incident to the Deputy Director Human Resources Manager (the Director). While the Director expressed her unwillingness to intervene, she advised the employee to reconvene a meeting of the selection panel. The selection panel took a final decision to not shortlist the individual concerned.

Following the incident, the employee was instructed to hand over all the files she had been working on. The employee then addressed a letter to the Director complaining about the treatment she had received and, without receiving a response, found herself excluded from all HR meetings and removed from the HR department’s WhatsApp group. The employee lodged a formal grievance and, in return, was unilaterally transferred back to her previous position of data-capturer, subject to a warning that her failure to report to work in this position would constitute serious misconduct.

Aggrieved by the Department’s conduct, the employee referred an unfair discrimination claim to the Labour Court contending that her removal from the HR department constituted an occupational detriment as a result of her having made a protected disclosure in terms of the Protected Disclosures Act 26 of 2000 (PDA). She sought compensation and an order that she be entitled to resume her duties within the HR department.

The Department argued that –

  • the employee had not made a protected disclosure but rather had become rebellious and failed to perform her duties properly; and
  • the employee had failed to prove that she had suffered an occupational detriment as a result of reporting the manager’s conduct.

With reference to the protected disclosure, the court held that the Department’s denial that the employee had made a protected disclosure was not supported by the evidence. In this regard, the court noted that the PDA defines a ‘disclosure’ as ‘any disclosure of information regarding any conduct of an employer, or of an employee … of that employer, made by an employee … who has reason to believe that the information concerned shows’, amongst other things, ‘that a person has failed, [or] is failing … to comply with any legal obligation’.

The court found that it was common cause that when the employee was instructed by the manager to add the niece’s application to the shortlisted batch, the manager was failing to comply with her legal obligation to conduct the recruitment process in accordance with the Department’s recruitment procedures and that this had in fact amounted to nepotism. The manager was intentionally acting in breach of the recruitment procedure and the disclosure of that conduct accordingly constituted a protected disclosure as envisaged in the PDA.

As regards the occupational detriment, the court noted that an ‘occupational detriment’ is defined in the PDA as ‘being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities [and] work security’. The employee had contended that she had been removed from the HR department as punishment for making the disclosure. This was more probable than the Department’s version that she had become rebellious and failed to perform her duties. If this was the case, the Director was aware of the procedures to be followed when dealing with misconduct. Instead, she abused her seniority by humiliating the employee and denying her the opportunity to develop her knowledge and skills as an HR practitioner. This denial constituted an occupational detriment in that it affected the employee adversely and retarded her development at work.

The court accordingly found that the Department had committed an occupational detriment against the employee in breach of the provisions of the PDA. Having regard to the humiliation and bullying that the employee had endured for making the protected disclosure, the court ordered the Department to pay the employee compensation equivalent to ten months remuneration, to restore the duties the employee performed in the HR department before making the protected disclosure, and for the Department to pay the costs of the application.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2023 (March) DR 30.