National Engineering Workers Union v Dube (SC 1 – 2016)

“Firstly, there are two definitions of ‘disciplinary committee’ in the definitions section of the Code. There is one that I will refer to as a “stand alone” definition, and the other that is subsumed under the definition of ‘disciplinary authority.’ This means that a disciplinary committee as so subsumed, is one of the ‘bodies’ that may constitute a disciplinary authority, just like the ‘person’ or ‘authority’ mentioned in the definition in question”.

Introduction

This dispute is remarkable. What was before the Supreme Court was a question as to whether a disciplinary hearing that dismissed an employee was constituted as a committee or an authority in terms of SI 15 of 2006.

The Facts

An employee was charged and dismissed in terms of the National Code of Conduct. Aggrieved, the employee approached a Labour Officer and an Arbitrator, which proceedings ended with a conclusion that the employee must be reinstated because the committee that heard the matter was not properly constituted. The Appellant appealed to the Labour Court and the court ordered the payment of damages to the employee. This then founded the Supreme Court proceedings. In summary, before the Supreme Court were essentially three questions:

  • Whether the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee.
  • Whether the adjudicating authority was properly constituted, and
  • Whether the court a quo erred by proceeding to order that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

The Law

The Labour Court and the Arbitrator had concluded that the disciplinary committee that heard the dispute was not properly constituted. The appellant argued that it was not a committee but a disciplinary authority. According to the Supreme Court, the evidence presented showed that the employer intended on setting up a disciplinary authority as opposed to a disciplinary committee. The court firmly remarked:

“Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Code as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated. It is all left to the employer’s discretion. In the proceedings in question and in compliance with s 6(1)(4)(b) of the Code, the respondent was allowed to bring, and be represented by, her legal practitioner”.

The remarks above are important in so far as they show that an employer has discretion in terms of who constitutes a disciplinary authority. It can be a group of people or even one person. The employer in question had set up a disciplinary authority as opposed to a disciplinary committee.

Regarding the award of damages in the absence of evidence, the Supreme Court found this to be an irregularity in the following terms:

 “That award, in addition to not having been requested by the respondent, is without any discernible basis. It invokes the commonly used catch phrase: “plucked from the air.” This Court has expressed itself on numerous occasions on the undesirability of the court proceeding in this manner.”

Conclusion

The matter was remitted to the Labour Court for a hearing on the merits.

Own Comment

What is likely to catch one’s eye is the way the Court distinguished between a disciplinary committee and a disciplinary authority. There is therefore no restriction as to who can form an authority, the size, and the composition. All is left at the discretion of the employer. It is therefore imperative that when an employee is charged in terms of the national code of conduct, the employer must ensure that there is clarity in terms of the type of body that is going to hear the disciplinary hearing. This clarity must be provided in the form of documents that are used to summon the employee for the hearing. If it is a committee, what follows is an obligation to ensure that the parties are equally represented. No doubt therefore that most employers would prefer using an authority as there is no restriction as to who can be part of the hearing panel.

The case is also important in showing what the Supreme Court has repeatedly held in various judgements as far as the quantification of damages is concerned. The court has strongly held that damages in lieu of reinstatement must be supported by the evidence presented by the parties. In

 Heywood Investments (Private) Limited T/A GDC Hauliers v Pharaoh Zakeyo (SC 32/2013) the Supreme Court held:

“What the court is not empowered to do is to award damages in the absence of any evidence in support of such award.”

The same sentiments were also echoed in Monterey Estate (Private) Limited v Kenny Broxham (SC 49 – 16) and in Erickson Mvududu v Agricultural and Rural Development Authority (SC58/2015). It is therefore fatally irregular for a court to consider quantification of damages in lieu of reinstatement without accepting any evidence from the parties.

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