Can an employer seek the review of a disciplinary sanction?

Posted: December 6, 2010 in Uncategorized

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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