Matatiele Local Municipality v Shaik and Others (DA3/2016) [2017] ZALAC 37; (2017) 38 ILJ 2280 (LAC); [2017] 11 BLLR 1090 (LAC) (13 June 2017)

Matatiele Local Municipality v Shaik and Others (DA3/2016) [2017] ZALAC 37; (2017) 38 ILJ 2280 (LAC); [2017] 11 BLLR 1090 (LAC) (13 June 2017)

The Labour Appeal Court held that the three-month period prescribed by clause 6.3 of the SALGBC Disciplinary Code Collective Agreement commences when the municipal official authorised to institute disciplinary proceedings becomes aware of both the alleged misconduct and the identity of the perpetrator. The disciplinary inquiry 'proceeds' when the charges are formally furnished to the employee. On the facts, the charges were supplied to the employee within the prescribed period, and the municipality complied with clause 6.3. The dismissal was therefore valid. The arbitrator erred in declaring the dismissal void and ordering reinstatement. The matter was remitted to the bargaining council...

Citation
[2017] ZALAC 37
Parties
Appellant: Matatiele Local Municipality; Respondent: Rashida Shaik (Carrim); Respondent: South Africa Local Government Bargaining Council; Respondent: Commissioner Mxolisi Alex Nosigqwaba
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
13 June 2017
Case Number
DA 3/2016
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal upheld; Labour Court order set aside; matter remitted for arbitration on fairness of dismissal; no order as to costs.
Judges
Tlaletsi, Ndlovu, Landman
Legal Topics
Disciplinary Code Collective Agreement, Unfair Dismissal, Jurisdiction of Arbitrator, Procedural Fairness, Condonation, Reinstatement
Labour Law Civil Procedure Disciplinary Code Collective Agreement Unfair Dismissal Jurisdiction of Arbitrator Procedural Fairness Condonation Reinstatement

Case Brief

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Parties

Matatiele Local Municipality

Appellant

Rashida Shaik (Carrim)

Respondent

South Africa Local Government Bargaining Council

Respondent

Commissioner Mxolisi Alex Nosigqwaba

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the employee was void due to the disciplinary hearing being held outside the time limit prescribed by clause 6.3 of the SALGBC Disciplinary Code Collective Agreement.
  2. 2 Whether an arbitrator has jurisdiction to remedy a void dismissal under the LRA.
  3. 3 When does the three-month period for instituting disciplinary proceedings commence under clause 6.3.

Ratio Decidendi

The Labour Appeal Court held that the three-month period prescribed by clause 6.3 of the SALGBC Disciplinary Code Collective Agreement commences when the municipal official authorised to institute disciplinary proceedings becomes aware of both the alleged misconduct and the identity of the perpetrator. The disciplinary inquiry 'proceeds' when the charges are formally furnished to the employee. On the facts, the charges were supplied to the employee within the prescribed period, and the municipality complied with clause 6.3. The dismissal was therefore valid. The arbitrator erred in declaring the dismissal void and ordering reinstatement. The matter was remitted to the bargaining council...

Court Disposition

Appeal upheld; Labour Court order set aside; matter remitted for arbitration on fairness of dismissal; no order as to costs.

Orders

  • The appeal is upheld.
  • The order of the Labour Court is set aside and replaced with an order granting the application to review and set aside the award of the third respondent issued on 21 April 2015 under case number ECD051408, and the award is set aside.