Hendricks v Overstrand Municipality and Another (CA24/2013) [2014] ZALAC 49 ; [2014] 12 BLLR 1170; (2015) 36 ILJ 163 (LAC) (25 September 2014) per Murphy AJA [Musi JA and Setiloane AJA concurring]

Appeal disallowed and Labour Court’s decision upheld.  LAC summary: Interpretation of section 158(1)(h) of the LRA- Review of a ruling of the chairperson of a disciplinary hearing- employee challenging review of presiding officer in terms of section 158(1)(h).  Presiding officer mandated by employer performing administrative act.  Employer aggrieved by the disciplinary sanction of a presiding officer entitled to review sanction in terms of section 158(1)(h) of the LRA.  Ntshangase, Gcaba and Chirwa considered.  Review consonant with the prescripts of the Constitution and the common law principles of reasonableness, legality and rationality.  Employee dismissed for dishonest conduct and fraudulent misrepresentation – chairperson suspending employee and ordering written warning- Labour Court reviewing chairperson’s finding- Evidence showing that employment relationship irretrievably broken down.  Chairperson’s finding unreasonable and irrational.

“[1] This appeal invites us to re-consider the interpretation of section 158(1)(h) of the Labour Relations Act (“the LRA”) which provides that the Labour Court “may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law”.  The subsection is part of the section of the LRA which defines the powers of the Labour Court.  The reason for the invitation to re-look at the interpretation of section 158(1)(h) is that there evidently exists apprehension among Labour Court judges and some practitioners that the interpretation of the provision by the Supreme Court of Appeal (“the SCA”) and this court (“the LAC”) in Ntshangase v MEC for Finance, Kwa-Zulu Natal and Another may be at odds with the rulings of the Constitutional Court in Chirwa v Transnet and others and Gcaba v Minister of Safety and Security and Others.  The essential issue in dispute in this case is similar to that in Ntshangase.  It involves the review of a decision of the presiding officer of an internal disciplinary hearing tasked with determining charges of misconduct levelled against the appellant.  The presiding officer imposed a sanction less than dismissal.  The Labour Court (Steenkamp J) reviewed and set aside the decision of the presiding officer and substituted it with one of dismissal.  The appellant appeals against that decision with the leave of the court a quo.”