Mashiane v Department of Public Works (J1773/12) [2012] ZALCJHB 69 (18 July 2012)

Mashiane v Department of Public Works (J1773/12) [2012] ZALCJHB 69 (18 July 2012)

The court found that the respondent's suspension of the applicant on 5 July 2012 was invalid as it contravened the peremptory provisions of clause 2.7(2)(c) of the SMS Handbook and clause 7.2 of the disciplinary code, which require that any extension of precautionary suspension beyond 60 days must be authorised by the chairperson of the disciplinary enquiry. The respondent failed to provide any legal basis for a right to suspend outside these provisions and did not demonstrate that the fresh suspension was based on new grounds. The court held that the respondent's conduct was a flagrant disregard of the arbitration award and the disciplinary code, and that the applicant was entitled to...

Citation
[2012] ZALCJHB 69
Parties
Applicant: Vusi Mashiane; Respondent: Department of Public Works
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
18 July 2012
Case Number
J1773/12
Procedural Posture
Urgent Application / Application for Urgent Interdict Against Suspension
Outcome
Application granted. The suspension of the applicant on 5 July 2012 is declared invalid and the respondent is interdicted from further suspension unless authorised by the chairperson of the disciplinary enquiry.
Judges
Lagrange
Legal Topics
Precautionary Suspension, Collective Agreement, Disciplinary Code, Unfair Labour Practice, Arbitration Award Enforcement
Labour Law Administrative Law Precautionary Suspension Collective Agreement Disciplinary Code Unfair Labour Practice Arbitration Award Enforcement

Case Brief

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Parties

Vusi Mashiane

Applicant

Department of Public Works

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Against Suspension

Legal Issues

  1. 1 Whether the respondent's suspension of the applicant on 5 July 2012 contravened clause 2.7(2)(c) of the SMS Handbook and clause 7.2 of the disciplinary code.
  2. 2 Whether the respondent was entitled to impose a fresh suspension without authorisation from the chairperson of the disciplinary enquiry.
  3. 3 Whether the applicant is entitled to urgent relief to secure his return to work and enforcement of the arbitration award.

Ratio Decidendi

The court found that the respondent's suspension of the applicant on 5 July 2012 was invalid as it contravened the peremptory provisions of clause 2.7(2)(c) of the SMS Handbook and clause 7.2 of the disciplinary code, which require that any extension of precautionary suspension beyond 60 days must be authorised by the chairperson of the disciplinary enquiry. The respondent failed to provide any legal basis for a right to suspend outside these provisions and did not demonstrate that the fresh suspension was based on new grounds. The court held that the respondent's conduct was a flagrant disregard of the arbitration award and the disciplinary code, and that the applicant was entitled to...

Court Disposition

Application granted. The suspension of the applicant on 5 July 2012 is declared invalid and the respondent is interdicted from further suspension unless authorised by the chairperson of the disciplinary enquiry.

Orders

  • Non-compliance with the normal rules governing form, service, and timing of applications is condoned and the matter is dealt with as urgent.
  • The suspension of the applicant by the respondent on 5 July 2012 is declared invalid as it contravenes clause 2.7(2)(c) of the SMS Handbook and clause 7.2 of the disciplinary code.