Khena v Passenger Rail Agency of South Africa (J2767/16) [2016] ZALCJHB 457 (6 December 2016)

Khena v Passenger Rail Agency of South Africa (J2767/16) [2016] ZALCJHB 457 (6 December 2016)

The court found that the respondent breached the applicant's employment contract by terminating his employment without completing the disciplinary process it had initiated. The disciplinary code and procedure formed part of the applicant's contract, and the respondent was bound to follow the process once it elected to do so. The applicant was entitled to reinstatement pending the finalisation of the disciplinary hearing. However, the court held that the applicant was not entitled to payment of remuneration or his 13th cheque for the period after he failed to tender his services, as remuneration is conditional upon the provision of work. The court declined to order payment of salary until...

Citation
[2016] ZALCJHB 457
Parties
Applicant: Nkosinathi Khena; Respondent: Passenger Rail Agency of South Africa
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 December 2016
Case Number
J2767/16
Procedural Posture
Urgent Application / Final Determination of Urgent Application
Outcome
The application succeeds in part: the termination of the applicant's employment is set aside and he is reinstated pending the outcome of the disciplinary hearing. The claim for payment of remuneration until the disciplinary hearing is finalised is dismissed.
Judges
Prinsloo
Legal Topics
Breach of Employment Contract, Disciplinary Code and Procedure, Specific Performance, No Work No Pay, Reinstatement, Remuneration Claims
Labour Law Civil Procedure Breach of Employment Contract Disciplinary Code and Procedure Specific Performance No Work No Pay Reinstatement Remuneration Claims

Case Brief

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Parties

Nkosinathi Khena

Applicant

Passenger Rail Agency of South Africa

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Application

Legal Issues

  1. 1 Whether the respondent's termination of the applicant's employment without a disciplinary hearing breached the employment contract.
  2. 2 Whether the applicant is entitled to reinstatement pending compliance with the respondent's disciplinary code and procedure.
  3. 3 Whether the applicant is entitled to payment of remuneration and his 13th cheque until the disciplinary hearing is finalised.

Ratio Decidendi

The court found that the respondent breached the applicant's employment contract by terminating his employment without completing the disciplinary process it had initiated. The disciplinary code and procedure formed part of the applicant's contract, and the respondent was bound to follow the process once it elected to do so. The applicant was entitled to reinstatement pending the finalisation of the disciplinary hearing. However, the court held that the applicant was not entitled to payment of remuneration or his 13th cheque for the period after he failed to tender his services, as remuneration is conditional upon the provision of work. The court declined to order payment of salary until...

Court Disposition

The application succeeds in part: the termination of the applicant's employment is set aside and he is reinstated pending the outcome of the disciplinary hearing. The claim for payment of remuneration until the disciplinary hearing is finalised is dismissed.

Orders

  • It is declared that the respondent's decision of 18 November 2016 to terminate the applicant's employment in the absence of a disciplinary hearing is a breach of the applicant's contract of employment.
  • The termination of employment is set aside and the applicant is reinstated into the respondent's employ.