Employment law update – The Minister ‘lifts’ her obligation to hold a disciplinary inquiry against a senior employee

August 1st, 2023
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Letsholonyane v Minister of Human Settlements and Another (LC) (unreported case no J616/23, 15-5-2023) (Makhura AJ)

By virtue of her position as a Deputy Director General: Corporate Services, the Senior Management Service Handbook (SMS Handbook), which sets out the disciplinary procedure the employer must follow should it decide to institute disciplinary proceedings against a senior employee; applied to the applicant employee.

The Minister of Human Settlements was stuck in a lift for just over an hour in a government building. The Minister, thereafter, afforded the employee an opportunity to offer reasons why she should not be summarily dismissed for five counts of related gross negligence and/or misconduct, all emanating from the Minister’s ordeal in the lift. In her response the employee denied the allegations and took the view that her response would be better served at an internal disciplinary inquiry.

A month later, the Minister placed the employee on precautionary suspension, pending ‘the finalisation of the matter’.

A few days thereafter, the Minister issued the employee a letter of dismissal. This in turn prompted the employee to approach the Labour Court on an urgent basis seeking an order that the Minister unlawfully breached her contract of employment and to restore the employment relationship pending the employer complying with the SMS Handbook should it wish to discipline her.

The employee’s application was a contractual claim brought under s 77(3) read with s 77A(e) of the Basic Conditions of Employment Act 75 of 1997.

The Minister raised two preliminary points, first that the court did not have jurisdiction to hear the matter and second was that the matter was not urgent.

The Minister relied on three judgments to argue the court lacked jurisdiction (Singhala v Ernst & Young Inc and Another (2019) 40 ILJ 1083 (LC), Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA Intervening) (2016) 37 ILJ 564 (CC) and Mohlala-Mulaudzi v Property Practitioners Regulatory Authority and Another (LC) (unreported case no J68/23, 13-2-2023) (Moshoana J)).

The court, however, found that the first two authorities cited, were materially different from the facts before it in that both matters referred to, did not deal with a contractual claim but rather a claim that the employer breached the provisions of the Labour Relations Act 66 of 1995 (LRA).

In respect of the third judgment, and while acknowledging the applicant in that matter referred a contractual dispute alleging a breach of contract – the court found that the applicant’s true claim was based on an unfair dismissal under the regime of the LRA and dismissed the application. Thus, the judgment was no authority that the court lacked jurisdiction, as alleged by the Minister.

Turning to the issue of urgency, the court found that the facts relied on by the applicant, satisfied the test for urgency.

In dispensing with the preliminary points, the question before the court, thereafter, was whether the dismissal complied to the binding procedure set out in the SMS Handbook.

The court examined the following clauses in the SMS Handbook.

Clause 1.1 states:

‘The chapter contains the procedures that must be applied in cases of misconduct … of members of the SMS … . As regard misconduct, PSCBC Resolution 1 of 2003 envisages the issuing of a directive … to cover the disciplinary matters of the SMS. The procedures for misconduct in paragraph 2 below incorporates (sic) those provisions of the PSCBC Resolution 1 of 2003, which were considered appropriate and practicable in respect of members of the SMS.’

Going further, the court referred to:

‘Clause 2 of Chapter 7 of the SMS Handbook deals with the disciplinary code and procedures. If the alleged misconduct warrants a more serious disciplinary action than counselling or warning (ie, for serious misconduct that may lead to dismissal), clause 2.6(1) provides that the Department “may initiate a disciplinary hearing”, and must appoint an initiator. Clause 2.7(a) obligates the Department to issue a notice of disciplinary hearing at least 5 days before the hearing.

Clause 2.7(2)(c) provides as follows:

“If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days … .”’

Referring to binding authority, the court reiterated the fact that the SMS Handbook was considered subordinate legislation and, therefore, binding on both employer and employee.

Having assessed the facts, the court held:

‘Did the Minister apply the procedure set out in Chapter 7? The answer is in the negative. The Minister considered the allegations against the applicant to be serious. She was obliged to institute a disciplinary hearing as provided for in clause 2.7 of the SMS Handbook. Considered with the other provisions, including clause 1.1 referred to above and clause 2.1(g), which sets out the purpose to be prevention of arbitrary actions from supervisors, clause 2.6(1) of the SMS Handbook does not, in my view, make the institution of a formal disciplinary hearing optional or discretionary. Further, clause 2.7(5) provides that for less serious forms of misconduct, no formal inquiry shall be held, which clearly suggests that for serious misconduct, a formal inquiry is necessary. There is no alternative procedure for misconduct cases in the Handbook, such as the one followed by the Minister.’

Moreover, the court noted that in terms of clause 2.7(4)(a) of the SMS Handbook, it is only a chairperson who has the authority to hand down a sanction having found an employee guilty of an offence. In this case, the Minister unduly usurped such power and took the decision by herself to dismiss the employee.

The court granted the orders with costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2023 (Aug) DR 39.

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