Saloojee v McKenzie NO and Others (C295/04) [2005] ZALC 43; (2005) 26 ILJ 330 (LC); [2005] 3 BLLR 285 (LC) (28 January 2005)

Saloojee v McKenzie NO and Others (C295/04) [2005] ZALC 43; (2005) 26 ILJ 330 (LC); [2005] 3 BLLR 285 (LC) (28 January 2005)

The court found that the transfer of the applicant was not made in the public interest but was effected for an ulterior motive, namely to remove the applicant after the employer failed to achieve dismissal through the disciplinary process. Section 14(1) of the Public Service Act does not authorise a transfer as a form of sanction. The respondent's actions amounted to an unfair labour practice, as the applicant's personal circumstances and pending appeal were disregarded, and the transfer undermined the disciplinary process. The court held that the transfer was not rationally connected to the purpose of the empowering provision and set aside the decision to transfer the applicant.

Citation
[2005] ZALC 43
Parties
Applicant: Riaz Saloojee; Respondent: Karen McKenzie N.O.; Respondent: Independent Complaints Directorate; Respondent: Minister of Safety & Security
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 January 2005
Case Number
C295/04
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The decision to transfer the applicant is reviewed and set aside. The applicant is reinstated pending appeal. No order as to costs.
Judges
Ngcamu
Legal Topics
Unfair Labour Practice, Public Service Transfer, Ulterior Motive, Disciplinary Procedure, Section 14 Public Service Act
Labour Law Administrative Law Unfair Labour Practice Public Service Transfer Ulterior Motive Disciplinary Procedure Section 14 Public Service Act

Case Brief

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Parties

Riaz Saloojee

Applicant

Karen McKenzie N.O.

Respondent

Independent Complaints Directorate

Respondent

Minister of Safety & Security

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the transfer of the applicant was authorised by section 14(1) of the Public Service Act.
  2. 2 Whether the transfer was effected for an ulterior motive rather than in the public interest.
  3. 3 Whether the applicant was subjected to an unfair labour practice by the respondents.

Ratio Decidendi

The court found that the transfer of the applicant was not made in the public interest but was effected for an ulterior motive, namely to remove the applicant after the employer failed to achieve dismissal through the disciplinary process. Section 14(1) of the Public Service Act does not authorise a transfer as a form of sanction. The respondent's actions amounted to an unfair labour practice, as the applicant's personal circumstances and pending appeal were disregarded, and the transfer undermined the disciplinary process. The court held that the transfer was not rationally connected to the purpose of the empowering provision and set aside the decision to transfer the applicant.

Court Disposition

Application granted. The decision to transfer the applicant is reviewed and set aside. The applicant is reinstated pending appeal. No order as to costs.

Orders

  • The decision of the first respondent to transfer the applicant to the post of Provincial Head of the ICD, Mpumalanga Province, announced on 25 June 2004, is reviewed and set aside.
  • The first respondent is directed to reinstate the applicant in his position as Provincial Head, ICD, Western Cape, pending the appeal.