HENDOR STEEL SUPPLIES (A DIVISION OF ARGENT STEEL GROUP (PTY) LTD formerly named MARSCHALK BELEGGINGS (PTY) LTD) v NATIONAL UNION OF METALWORKERS OF SA & OTHERS (2009) 30 ILJ 2376 (LAC)RTF
Review of disciplinary proceedings
May an employer take the findings of one of its own disciplinary officers on review if management is dissatisfied with the outcome? Courts have recently addressed this question in two recent cases.
In Ekhuruleni Metropolitan Municipality v Mashazi NO & another (JR2883/06 dated 04/09/2009) an attorney appointed by the municipality to chair a disciplinary hearing involving charges of corruption against a municipal official found him guilty, but merely ordered him to repay the money he had pocketed. In a review application, the municipality asked the court to set the penalty aside and confirm that the official should have been fired.
The court refused to follow the judgment in Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO & another (2008) 29 ILJ 1707 (LAC), in which the LAC could see no reason why State institutions should not be able to take 'aberrant' decisions of presiding officers on review. In the judge's view, Dorkin was overtaken by Chirwa v Transnet Ltd & others (2008) 29 ILJ 73 (CC), in which it was found that dismissals did not constitute 'administrative action'. The court pointed out that the proper course for employers dissatisfied with disciplinary findings or sanctions is to convene a fresh hearing under another presiding officer, and dismissed the application.
However, two weeks later the SCA handed down its judgment in the appeal against Dorkin. In Ntshangase v MEC: Finance, Kwa-Zulu Natal (402/08 dated 28/09/2009) the court agreed that a final warning imposed on Mr Ntshangase for spending without authorisation was aberrant. The court also held that since the Labour Court is empowered to review the actions by the State in its capacity as employer, it was entitled to set the penalty aside, and should have done so because the penalty was 'irrational'. So, several years after he was issued the warning, Ntshangase found himself out of work.
Ntshangase has filed an application for leave to appeal to the Constitutional Court.