In order to relieve the Court of this caseload, there is a debate about whether the State, and its organs, in their capacities as employers, should continue to enjoy what can arguably be called a special privilege under the banner of Section 158(1)(h) for the Court to act as a disciplinary appeal body and impose an appropriate sanction on their behalf?

In Department of Defence v Kagiso Philemon Thamaga N.O. and 1 Other ² , the Labour Court revisited this debate. The facts in this matter were as follows: Ms Masombuka is employed by the Department of Defence as a Senior Accounting Clerk in the Finance Department.

On the 6 th February 2018, the Chief Accounting Clerk performed a weekly inspection on a sub-account prescribed as 099239072 and discovered that there was a shortage of an amount equivalent to R33 408.90. This shortage arose from the cash that was collected or kept by Masombuka. The shortage was reported to a Senior State Accountant who then conducted a process seeking to ascertain the error and discovered that the shortage was in fact R40 081.80.

Masombuka was subsequently charged with negligence on the sub-advance account. She pleaded guilty at the disciplinary hearing and the Chairperson accepted the plea of guilt and imposed a sanction of a final written warning and ordered Masombuka to repay the R40 081.80 that she could not account for.

The Department of Defence filed a review application, seeking to have the sanction of a Final Written Warning substituted with a sanction of dismissal.

Section 1 of the Promotion of Administrative Justice Act 33 of 2000 (“PAJA”) defines an administrative action as, inter alia, “any decision taken, or any failure to take a decision, by an organ of state, when exercising a public power or performing a public function in terms of any legislation.” The power exercised by an organ of state in the employment context has been discussed in a plethora of judgments. In Hendricks v Overstrand Municipality and Another ³ , the Labour Appeal Court, in dealing with reviews under Section 158(1)(h), found that the decision of a chairperson as employer is administrative in nature and falls within the context of PAJA. This is by virtue of the fact that the decision has a direct, external legal effect in its ramification for ratepayers and citizens, and is accordingly an exercise of statutory public power. 

The Labour Appeal Court held that judicial review of contractual disciplinary proceedings are acceptable and therefore allowed on grounds which are permissible in law as contemplated in Section 158(1)(h). This is more so because remedies that are available to aggrieved employees under Section 191(1)(a) are not available to employers. The only available remedy, found the Court, is in terms of Section 158(1)(h).

This view remains binding. However, in Department of Defence, the Labour Court called for a new thinking which departs from the customary position explained above and which could be consistent with the Constitution.

In its judgment, the Labour Court, per Moshoana J, was of the view that a conundrum arises when a public sector employee whose dismissal as a sanction is imposed or endorsed by the Labour Court. Does it mean that an arbitrator whose statutory duty is to determine the fairness of a dismissal shall be bound by a decision of the Labour Court? The Court’s view was that the arbitrator would not be bound by such a decision.

However, that employee may refer a dispute in terms of Section 191(1) of the Act which dismissal has received the blessing of or has been imposed by the Labour Court, to the CCMA. One imagines a situation where a public sector employer argues before an arbitrator that a dismissal as a sanction is appropriate because it has received the blessings of a Labour Court judge. The reaction of the arbitrator to such an argument is too ghastly to contemplate, according to the Labour Court.

The Labour Court’s judgment points out a complication that would arise in an instance where an arbitrator defers to the sanction of the judge qua employer and fails to apply his or her own sense of fairness. The orbit will be completed where a Labour Court judge upholds the decision of an arbitrator by not interfering with the sanction of the employer (judge qua employer) because the sanction is a fair one.

The Labour Court’s view is that this circuitous position is untenable for various reasons, such as it being in conflict with the maxim of natural justice nemo debet esse iudex in propria causa – no one is a judge in his own case.

The Labour Court would also become functus officio in a certain sense. Judge Moshoana offers, as a simple answer to this conundrum, that the Labour Court should not entertain these types of applications.

A simple solution to this problem is that public sector employers are entitled to override the decision of the internal chairpersons. They can do so by simply showing exceptional circumstances instead of asking the Labour Court to dismiss employees on its behalf. This is even more so because the Labour Court is not empowered to dismiss employees on behalf of any employer.

This finding by the Labour Court is consistent with the Constitutional Court’s finding that generally, employment and labour relations issues do not amount to administrative action.⁴ Should the action of the chairperson not to be considered an administrative action, which the Labour Court found to be the correct view and in line with Gcaba and the latest judgments of the Constitutional Court on the non-applicability of Section 33 of the Constitution and PAJA, then Ntshangase would not have reached the conclusion that it did. Accordingly, not dismissing an employee should not involve an exercise in public power which has as its effect, the dislodging of legality review from the equation, resulting in Section 158(1)(h) not being invoked. Such finding results in the jurisdiction of the High Court being invoked, instead of the Labour Court.

We respectfully agree with the Labour Court’s judgment. We see no reason why public sector employers cannot override decisions of internal chairpersons. By showing exceptional circumstances or fairness, the Labour Court can be relieved of its backlog. It is possible that such matters would go before the Labour Court in this context would then be brought under Section 145.

We are hopeful that the Labour Appeal Court would develop this jurisprudence despite it being a departure from Ntshangase and Hendricks, it is progressive, in our view and should be developed further to serve as a spoke to the ever-turning wheels of legality reviews by state and its organs, acting in its capacity as employer.

1 See SABC (SOC) v Keevy and Others (2020) 6 BLLR (LC)
2 Case No. 899/19 (Reportable)
3 (2015) 36 ILJ 163 (LAC)
4 See Gcaba v Minister of Safety and Security and Others (2010) 31 ILJ 296 (CC)