“The clear position of the law appears to me to be that upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.”
Category: Reinstatement as a Consequence of a Procedural Irregularity
In this summary, we highlight an important decision in ZUPCO v Beaular Mashinge. It pertains to the consequence of a procedural irregularity in disciplinary hearings. The ratio, in this case, can be summarised to the effect that procedural shortcomings in a disciplinary hearing can warrant reinstatement of the affected employee. This is opposed to the argument that such a matter should be remitted back to the disciplinary tribunal for a resolution of the procedural defect.
The relevant facts are that a disciplinary hearing led to a deadlock and contrary to the provisions contained in the code of conduct, it was referred to a Division Operations Manager for finalisation. Oblivious to this flaw, the Division Operations Manager dismissed the employee. An application for review was lodged with the Labour Court which court accepted that there was a fatal flaw in the process that could only be remedied through reinstatement of the employee. Aggrieved by this decision, the employer appealed to the Supreme Court arguing that the appropriate remedy was supposed to be a remittal of the matter to the disciplinary tribunal for a determination. The Supreme Court did not agree.
The appellant employer argued that the Labour Court erred in ordering reinstatement of the employee without considering the merits of the matter. The court accepted that the appellant was “partially correct” in arguing that the appropriate remedy would have been to remit the back to the disciplinary tribunal. It however proceeded to point out that:
“…upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms”.
What this statement means is that once a procedure is fatally defective, the employment contract is reinstated but this does not do away with the employers right to discipline the employee for the same offence. As the court pointed out, this restoration has nothing to do with the merits of the matter.
The court remarked that if the employee had been on a suspension without pay reinstatement was not going to be viable as the employee would have to revert to that status. As a result of the above, the court dismissed the appeal.
The important lesson, in this case, is that an employee can be reinstated once there is a procedural defect that vitiates the disciplinary proceedings. An exception would be where the employee was on a suspension without pay which status the employee will revert to in the event of a procedural defect.