Hendricks v Overstrand Municipality Case no: CA24/2013 [2014] 12 BLLR 1170; (2015) 36 ILJ 163 (LAC)

on 25 September 2014 per Murphy AJA [Musi JA and Setiloane AJA concurring]

In disallowing the appeal and upholding the dismissal for a valid and fair reason the LAC confirmed that when the reason for dismissal is related to serious or gross misconduct by a senior manager the destruction of the trust and confidence relationship can be assumed and need not be proved by the employer.

“Counsel for the first respondent, Mr Steltzner SC, emphasised before us that the offence involved more than “an element” of dishonesty, as the second respondent found but was in fact a grossly dishonest act, committed with deliberate intent and involved the instructing of subordinates to participate in the commission thereof.   It therefore involved a significant abuse of authority and possibly criminal conduct by the official in the municipality tasked with overall responsibility for law enforcement.   His conduct, it was argued, rendered him wholly unsuitable to occupy his post”.

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.   Labour Court’s decision upheld.   Appeal dismissed.