NEHAWU and Another v McGladdery NO and Others (D137/2010) [2011] ZALCD 51 (1 November 2011)

NEHAWU and Another v McGladdery NO and Others (D137/2010) [2011] ZALCD 51 (1 November 2011)

The court held that the termination of the employee's service was effected by operation of law under section 17(3) of the Public Service Act, not as a dismissal for misconduct under the LRA. The employer did not exercise discretion in effecting the termination, and therefore, the bargaining council lacked jurisdiction to hear the dispute as an unfair dismissal. The discretion of the employer arises only at the stage of considering reinstatement on good cause shown, and the court's power is limited to reviewing that decision. As the applicant did not make out a case for review of the employer's refusal to reinstate, and the commissioner’s ruling was reasonable, the application was dismissed.

Citation
[2011] ZALCD 51
Parties
Applicant: NEHAWU; Applicant: PT Maphanga; Respondent: S McGladdery N.O; Respondent: General Public Service Sectoral Bargaining Council; Respondent: Department of Justice and Constitutional Development
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
1 November 2011
Case Number
D137/2010
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Reddy
Legal Topics
Deemed Dismissal, Public Service Act, Jurisdiction of Bargaining Council, Review of Administrative Action, Unfair Dismissal
Labour Law Administrative Law Deemed Dismissal Public Service Act Jurisdiction of Bargaining Council Review of Administrative Action Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

NEHAWU

Applicant

PT Maphanga

Applicant

S McGladdery N.O

Respondent

General Public Service Sectoral Bargaining Council

Respondent

Department of Justice and Constitutional Development

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the termination of the employee's service was a dismissal for misconduct or a termination by operation of law.
  2. 2 Whether the bargaining council had jurisdiction to hear the dispute.
  3. 3 Whether the employer was required to hold a disciplinary hearing prior to termination.

Ratio Decidendi

The court held that the termination of the employee's service was effected by operation of law under section 17(3) of the Public Service Act, not as a dismissal for misconduct under the LRA. The employer did not exercise discretion in effecting the termination, and therefore, the bargaining council lacked jurisdiction to hear the dispute as an unfair dismissal. The discretion of the employer arises only at the stage of considering reinstatement on good cause shown, and the court's power is limited to reviewing that decision. As the applicant did not make out a case for review of the employer's refusal to reinstate, and the commissioner’s ruling was reasonable, the application was dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.