Laubscher v GPSSBC and Others (J290/16) [2018] ZALCJHB 44 (5 February 2018)

Laubscher v GPSSBC and Others (J290/16) [2018] ZALCJHB 44 (5 February 2018)

The court found that the employer failed to comply with the mandatory timeframes set out in the Disciplinary Code and Procedure for the Public Service (Resolution 1 of 2003), specifically by not holding the disciplinary hearing within 10 working days of notification and by delaying the institution of proceedings for alleged misconduct that occurred years prior. The employer's conduct was inconsistent with the requirements of prompt and fair discipline. The withdrawal of charges did not provide the applicant with certainty that the proceedings would not be resurrected. The applicant established a reasonable apprehension that further disciplinary action could be taken in breach of the...

Citation
[2018] ZALCJHB 44
Parties
Applicant: Laubscher AJ; Respondent: GPSSBC; Respondent: Department of International Relations and Co-operation (DIRCO); Respondent: MJ Siavhe N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 February 2018
Case Number
J290/16
Procedural Posture
Urgent Application / Unopposed Motion; Reasons for Order Delivered
Outcome
Application granted; disciplinary proceedings declared invalid and employer interdicted from further action regarding the alleged misconduct.
Judges
F. Coetzee
Legal Topics
Disciplinary Code and Procedure, Delay in Disciplinary Action, Interdict, Waiver of Rights
Labour Law Civil Procedure Disciplinary Code and Procedure Delay in Disciplinary Action Interdict Waiver of Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Laubscher AJ

Applicant

GPSSBC

Respondent

Department of International Relations and Co-operation (DIRCO)

Respondent

MJ Siavhe N.O.

Respondent

Procedural Posture

Urgent Application / Unopposed Motion; Reasons for Order Delivered

Legal Issues

  1. 1 Whether the employer's delay in instituting disciplinary proceedings rendered those proceedings invalid.
  2. 2 Whether the disciplinary hearing was held within the timeframes prescribed by the Disciplinary Code and Procedure for the Public Service (Resolution 1 of 2003).
  3. 3 Whether the applicant is entitled to an interdict preventing the employer from resurrecting disciplinary proceedings.

Ratio Decidendi

The court found that the employer failed to comply with the mandatory timeframes set out in the Disciplinary Code and Procedure for the Public Service (Resolution 1 of 2003), specifically by not holding the disciplinary hearing within 10 working days of notification and by delaying the institution of proceedings for alleged misconduct that occurred years prior. The employer's conduct was inconsistent with the requirements of prompt and fair discipline. The withdrawal of charges did not provide the applicant with certainty that the proceedings would not be resurrected. The applicant established a reasonable apprehension that further disciplinary action could be taken in breach of the...

Court Disposition

Application granted; disciplinary proceedings declared invalid and employer interdicted from further action regarding the alleged misconduct.

Orders

  • The disciplinary proceedings against the applicant by the second respondent under the auspices of the first respondent are declared invalid.
  • The second respondent is interdicted from proceeding with any disciplinary action against the applicant in respect of the premises at the Republic of South Africa's Permanent Mission at the United Nations in New York.