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Ensure that you adhere to disciplinary hearing regulations

Gavin Stansfield and Abdul Allie

In the case of SAMWU obo T Jacobs v City of Cape Town [2014], the Labour Court considered if a disciplinary hearing held outside the time limits prescribed by a collective agreement rendered the disciplinary hearing null and void.

Facts of the case:

  • The applicant (T Jacobs) had been dismissed and had referred an unfair dismissal dispute to the South African Local Government Bargaining Council (SALGBC).
  • Arbitration proceedings were held and after this the arbitrator found that Jacobs' dismissal was substantively fair but procedurally unfair.
  • During the proceedings, it was held that the City of Cape Town (CoCT) had acted outside of the three-month time limit allowed for discipline that was provided for in the SALGA collective agreement.
  • The arbitrator held that because the CoCT hadn't complied with the time limit contained in the collective agreement, Jacobs' dismissal was substantively unfair. When the merits of her dismissal were considered, she was found to have been fairly dismissed because of serious misconduct.
  • Jacobs then applied to the Labour Court to have the award reviewed and set aside arguing that the disciplinary hearing was null and void as it was held outside the stated three-month time period and as the CoCT hadn't applied for condonation for such period, the collective agreement had been breached.

In doing so, Jacobs argued that the arbitrator exceeded his powers in terms of section 145(2)(iii) of the Labour Relations Act 66 of 1995 (LRA) and that the award was one that no reasonable arbitrator could make.

It was further argued that the arbitrator hadn't identified, and ruled on, the questions as put before him in SAMWU's referral, which related to the nature of the referred dispute.

  • In addressing the collective agreement, the court noted that the agreement had been concluded collectively between the parties in the bargaining council and that its application was decisive and deemed a condition of service.
  • The court further noted that the arbitrator's powers had been defined in the SALGBC's main agreement, its constitution and the collective agreement, and that the enforcement of the collective agreement would be in terms of section 33A of the LRA. Specifically, the court noted that section 33A(8)(f) provides that the arbitrator may make an appropriate award contemplated in section 138(9), which includes:

- An award giving effect to any collective agreement, and

- An award in the form a declaratory order.

  • The court, in turning to the facts, took into account that SAMWU (in its referral) and the arbitrator in issuing a preliminary ruling had raised the following issues:
  • If the collective agreement hadn't been complied with and what the effect of this non-compliance would be, and
  • If the chairperson had jurisdiction to conduct a disciplinary hearing in the absence of a condonation application.
  • The court held that the arbitrator - in mistakenly deciding he didn't have the power to issue a declaratory order stating that non-compliance with the collective agreement rendered the proceedings null and void – hadn't dealt with the dispute before him. This resulted in a reviewable irregularity.
  • The court held that the decision of the arbitrator had the effect that the conclusion he reached was so irrational that no reasonable arbitrator could've reached the same conclusion and that the award needed to be reviewed and set aside.
  • The court accordingly made the order that the disciplinary hearing was of no force and effect and that Jacobs be reinstated into her position retrospectively with no loss of benefits.

Gavin Stansfield is a director of employment at Cliffe Dekker Hofmeyr. He has been endorsed for his skills in dispute resolution. Gavin achieved a BA LLB LLM HDip Co.Law from the University of Cape Town.
Abdul Allie is a candidate attorney in the employment practice at Cliffe Dekker Hofmeyr.