Baloyi v MEC for Health and Social Development, Limpopo (CCT227/14) [2015] ZACC 39 (10 December 2015) per Moseneke DCJ (Mogoeng CJ, Jafta J, Khampepe J, Nkabinde J, Theron AJ and Tshiqi AJ concurring):

A divided Constitutional Court allowed an appeal against a 2010 review order of the Labour Court and reinstated the employee with retrospective effect to the date of dismissal, being 15 February 2005 (more than 10 years ago).  The purported reason for the employee’s dismissal was related to his conduct.  He had a clean record after starting work in 1987 and progressing to the level of senior artisan superintendent at Mankweng Hospital, Limpopo.  His alleged transgression related to work he authorised to be done at the hospital.  It was not suggested that he benefited financially but he was still ‘charged’ and found ‘guilty’ by senior management and an arbiter.  The Labour Court refused to review the award and petitions to the LAC and SCA were refused.

Comment:  The real reason for taking ‘disciplinary’ action was risk management and reliance on ‘operational requirements’ and not misconduct.  The procedure should have been a joint consensus-seeking one and not a disciplinary enquiry with ‘charges’ that were not proved.  Progressive discipline could have been applied.  There may have been a valid reason to take action, but it would have been unfair to do so.  An on-going working relationship should not have been intolerable nor had the employee destroyed the trust and confidence of senior management.

Excerpts

[37]     The applicant had worked with the Department for 19 years, was promoted over that period and had no previous record of misconduct.  He has admitted that he made a mistake in signing the store register.   This should have been considered in mitigation of the sanction imposed on him.   But more importantly, remittal would be grievously unjust in the face of the Department’s inertia and unresponsiveness, especially given the applicant’s earnest protestations of innocence, which are uncontroverted.   It is on these bases, in addition to the amount of time that has passed, that we feel justified in affording the applicant an effective remedy, even though this entails us deciding the merits ourselves, without the benefit of a full record.

[38]     In a dissenting judgment, Cameron J takes the view that the order of the Labour Court confirming the arbitrator’s award should be confirmed.  This is mainly because, despite the limping record, he finds that the applicant in his papers before the Labour Court made admissions about the arbitrator’s notes which justified his dismissal as not being substantively or procedurally unfair.   I have rehashed the uncontested events before the arbitrator.   In my view, they do not support the conclusion Cameron J reaches.

[39]     In another judgment, Froneman J parts ways with this judgment on whether the applicant is entitled to an order of reinstatement.  He prefers to set aside the order of the Labour Court and the underlying arbitration award but, because of the defective record, he would remit the matter to a fresh arbitration.   The outcome Froneman J opts for, in my view, has several difficulties.