Labour Court not a ‘back-up’ for lawyers – judge
Publish date: 11 September 2019
Issue Number: 171
Diary: A Matter of Justice
Category: A Matter of Justice
This case brought by Stats SA (SSA) involved a manager that SSA wanted dismissed on a charge of dishonesty. But, as the outcome shows, it is hard to make such charges stick when the employer has known about the incident for several years without taking any action.
The employee, Dikgang Molebatsi, was alleged to have interfered with the recruitment process of ‘Listers’, a category of SSA workers. He was said to have instructed a district administrator at the Springbok office not to contact two people due to write a competency test. Instead they were to include and consider B Tshepe, someone who allegedly did not meet SSA’s requirements. Molebatsi gave the administrator the contact details for Tshepe and arranged that he would write his competency test in Pretoria.
Molebatsi dealt with Tshepe’s test in Pretoria himself, even though he (Molebatsi) was employed as district manager at the Springbok office, and Tshepe was duly appointed. The irregular appointment was discovered soon afterwards during Tshepe’s training. It was said to be irregular on several grounds including the fact that it ran counter to SSA’s objective which was to employ people living in the Springbok area. Moreover, Tshepe had no experience in map reading and was not on the relevant data base.
All of these things, including SSA’s discovery of Molebatsi’s alleged dishonesty, occurred in the first months of 2014. However, it was only well over two years later that SSA served him with a charge sheet.
The presiding officer of the disciplinary hearing found SSA had not suffered any negative consequences as a result of appointing Tshepe: SSA had confirmed his appointment despite knowing the circumstances of his recruitment, and subsequently extended Tshepe’s employment contract. The presiding officer found that SSA had not suffered as a result of the irregular appointment and that the relationship between Molebatsi and SSA had not been broken. Molebatsi was sanctioned by a month’s suspension without pay. But SSA wanted him dismissed and thus took the matter on review to the Labour Court.
SSA said Molebatsi had instructed his subordinates to carry out his wishes against policy, and he ‘showed no remorse’. The sanction of a month’s pay was irrational. The court should overturn it and order his dismissal instead.
The court declined to do so, saying the presiding officer at the disciplinary hearing had clearly applied his mind to the facts and circumstances including the confirmation of Tshepe’s appointment and the extension of his contract. SSA also gave no reasonable explanation for why it had delayed almost two years before charging Molebatsi.
Misconduct that involved dishonesty did not always automatically ‘attract a sanction of dismissal’. Each case had to be decided on its own facts.
Judge Portia Nkutha-Nkontwana dismissed the review application, so that the sanction of one month’s suspension still stands. She also included two admonitions to lawyers and state parties appearing in the Labour Court.
She said she added her voice ‘to the chorus’ against a ‘growing practice’ by state agencies, namely turning to the courts whenever the state was unhappy with the outcome of its own internal disciplinary processes. It was wrong that the state then automatically approached the Labour Court with a review request. This placed an undue burden on the court and was ‘objectionable’.
The Labour Court should not be turned into ‘some kind of appeals body (when) it comes to disciplinary proceedings against officers of the applicant’. The resources of the Labour Court were already over-stretched and state departments should take another route instead: they should make sure that the people who preside over disciplinary hearings could do the job instead of using the court ‘as some kind of a back-up plan’ as happened here.
The other problem was that Stats SA had not filed a transcript of proceedings in the disciplinary hearing. Counsel for SSA suggested that a full record was unnecessary: not so, said the judge. The court needed, at the very least, a transcribed record of the proceedings to be able to appreciate what the presiding officer had heard. This was important to paint a picture of what happened during the hearing and to enable the court to ‘perform its constitutional function of review’.