“It is therefore clear to the naked eye that he could not lodge a complaint with the labour officer alleging unfair dismissal. The labour officer would not have the jurisdiction to entertain any complaint from the appellant as what the appellant was seeking was the setting aside of the determination of the disciplinary process. This process could only be set aside through an appeal or a review. The process before the labour officer was none of the above.”
The National Code provides that if one is aggrieved by an internal appeal result one may refer such a matter to a Labour Officer. Once this dispute has been referred as such, section 93 of the Labour Act will apply. At face value, the national code seems to suggest that labour officers have the jurisdiction to hear appeals from disciplinary hearings held in terms of the national code. This is not correct; the Supreme Court has spoken!
The fundamental principles in Misheck Mabeza v Sandvik Mining and Construction (Private) Limited have far-reaching consequences but until this change, these will continue to determine how appeals in terms of the national code will be handled.
The brief facts of this matter are that the employee, Misheck Mabeza was accused of failing to adhere to an instruction given by his employer. He was charged and dismissed for this failure in terms of the national code of conduct. Internal appeals upheld the dismissal. He lodged a claim of unfair dismissal with a labour officer under the Ministry Of Labour. Conciliation failed as per the dispute resolution mechanism that was applicable, the matter was referred for compulsory arbitration whereupon the arbitrator concluded that the dismissal was unfair. An appeal was lodged at the labour court by the respondent company. The labour court concluded that the employee had committed the offence and set aside the arbitral award. Aggrieved by the LC ruling, the appellant employee mounted the SC challenge.
THE COURTS REASONING
Section 101(5) and (6) of the Labour Act
The court assessed section 101(5) and (6) of the Labour Act. It concluded that appealing against a hearing to a labour officer will not be proper in terms of the labour act. The labour officer, the court argued, should not entertain a completed hearing. In other words, labour officers do not have the jurisdiction to hear appeals or reviews of disciplinary hearings.
This argument by the court was summed up in its pronouncement that:
“In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. It is clear that in this case the labour officer presided over a matter over which he did not have any jurisdiction.”
In summary, labour officers do not have appeal or review jurisdiction over matters emanating from a disciplinary hearing held in terms of the National Code.
Failure to adhere to an instruction lawfully issued
On the merits, the court made an important finding that the employee had deliberately failed to execute an instruction from his employer. The propriety of the charge and resultant dismissal was in the result not questioned.
I fully understand this judgement from the fact that the National Code is a delegated legislation enacted by the Minister in terms of section 101(9) of the Labour Act [Chapter 28:01]. In terms of the principles governing subordinate legislation, it is accepted that subordinate legislation must be read and interpreted together with its enabling Act and that the subordinate legislation must not be in conflict with the enabling legislation. It follows that when the subordinate legislation conflicts with the enabling act the court will have no option than to follow the enabling Act.
We submit that the court correctly noted that such an inconsistency between the Labour and the National Code was bad to the extent that no purposive interpretation can cure it to allow a labour officer to exercise appellate jurisdiction over matter emanating from completed hearing proceedings.
 See section 8(6) of Labour (National Employment Code of Conduct) Regulations, 2006
 See section 8(7) of Labour (National Employment Code of Conduct) Regulations, 2006
 Section 101(5) of the Labour Act reads: “Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.
 Section 101(6) of the Labour Act reads: “If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”
 Section 101(9) of the Labour Act reads: The Minister may, after consultation with representatives of trade unions and employers organizations, by statutory instrument publish a model employment code of conduct.
 Botha CJ Statutory interpretation: an introduction for students (Juta) 2012.