Today the Supreme Court of Appeal [“SCA”] held that any decision regarding disciplinary action taken by any official in terms of Resolution 2 of 1999 of the Public Service Co-ordinating Bargaining Council (PSCBC) is administrative action and the State, as employer, is entitled, if not obliged, to apply to the Labour Court to review and set aside the decision if it is regarded as not being lawful, reasonable and procedurally fair.

See Ntshangase v MEC for Finance: KwaZulu-Natal 402/08 [2009] ZASCA 123 (28 September 2009) per Bosielo AJA.

HN, employed as the Director: Arts, Culture, Museum Services & Youth Affairs by the Department of Education, KwaZulu-Natal, was suspended (presumably on full pay) on 25.08.2000 pending the outcome of a disciplinary hearing.   Wentworth Dorkin, who chaired the hearing, issued HN with a final written warning on 12.02.2002 and HN was reinstated during July 2002.   The Department’s Labour Court application to review and set aside that decision was refused on 18.03.2005.   On 21.12.2007 the Labour Appeal Court [“LAC”]  allowed an appeal and ordered the summary termination of HN’s services.   On 28.09.2009 the SCA disallowed HN’s appeal against that judgment.

In the words of the SCA:

“… [HN] was charged and convicted of twelve counts of misconduct, involving allegations of wilful or negligent mismanagement of the State’s finances and of abusing his authority.   Facts found by Dorkin to support these charges indicated, inter alia, the unauthorised awarding of bursaries to various students amounting to approximately R1m and the unauthorised purchase by [HN] of goods exceeding R500 000.   It also transpired that the [Department] suffered a loss of R200 000 from the last mentioned transaction.   After considering some evidence tendered both in aggravation and mitigation of sentence, Dorkin decided, as I have said, that the imposition of a final written warning would be an appropriate sentence”.

One could be forgiven for believing that the SCA was describing a serious criminal prosecution and conviction but this was simply an employer wishing to terminate the services of an employee for a fair and valid reason related to conduct.   There is no suggestion that the Department reported HN’s conduct to the police for investigation and possible prosecution.

To cut a long story short the SCA unanimously held that:

  • the Department had a statutorily imposed disciplinary system involving an independent enquiry by Dorkin;
  • Dorkin’s independent decision amounted to administrative action and had to be implemented by the Department;
  • as such the decision became that of the Department;
  • the Department was not only entitled but obliged to review the decision if it believed it was unlawful, unreasonable or procedurally unfair;
  • this was so because the Department has a duty to ensure an accountable public administration in accordance with ss 195 & 197 of the Constitution;
  • the Labour Court was the correct forum and the review was correctly brought in terms of section 158(1)(h) of the Labour Relations Act;
  • Dorkin’s’ decision was patently unfair to the Department as it failed to pass the test of rationality or reasonableness; and
  • the LAC was fully justified in setting aside the final written warning issued by Dorkin and effectively terminating HN’s employment summarily.

In the words of Bosielo AJA in the SCA:

“Given the nature and gravity of the misconduct for which [HN] was found guilty, there can be no argument that dismissal was the only appropriate sanction.   Referring the matter to the disciplinary hearing to impose a sanction of dismissal would, in my view, serve no purpose”.