The review of a disciplinary finding or sanction in terms of section 158(1)(h) of the labour relations act 66 of 1995
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
- Authors: August, Joshua Cliff
- Date: 2024-12
- Subjects: Labor discipline , Labor laws and legislation -- South Africa , South Africa.-- Labour Relations Act, 1995
- Language: English
- Type: Master's theses , text
- Identifier: http://hdl.handle.net/10948/68670 , vital:77080
- Description: When an employer subjects an employee to a formal disciplinary process, the employer appoints a presiding officer to whom it cedes either wholly or partly its decision-making powers. Wholly in that the presiding officer would render a finding and impose a sanction. Partly, in that the presiding officer would render a finding and only provide the employer with a recommendation on sanction, which the employer would either accept or reject. The State in its capacity as employer has been afforded the ability to utilise section 158(1)(h) of the Labour Relations Act, 1995 (LRA) to review the decisions of presiding officers appointed over internal disciplinary proceedings. Despite the wording of section 158(1)(h), the courts have restricted its use by employees employed by the State. The courts have held that a State employee would have to utilise the ordinary dispute resolution pathways made available in the LRA to challenge the decisions the State takes in its capacity as an employer. When exercising the prerogative to discipline, all employers, including the State, must primarily comply with the substantive and procedural requirements outlined in Schedule 8 of the LRA. Notwithstanding the primary measure of fairness, the employer’s decision to discipline and dismiss would also be pitched and measured against its adopted internal disciplinary code and procedure document. It has been questioned in a Labour Court judgement whether the State should continue to be afforded the benefit of the section 158(1)(h) review. The Labour Court judgement ventures into the consequences the use of section 158(1)(h) would have on the unfair dismissal dispute resolution pathway afforded by the LRA and proposed that it would be ideal for the State to utilise alternatives when attempting to alter the sanction or finding of its internal presiding officers. The alternatives proposed include the internal review of findings or sanctions, the unilateral substitution of sanctions, increasing sanctions on appeal and the practice of subjecting the employee to a second hearing. Applying the alternatives to the current circumstances and collective bargaining agreements applicable in the public service, the State would not be able to utilise the alternatives, save for subjecting the employee to a second hearing in exceptional circumstances. In all other instances, including convening an internal review, increasing a sanction during an appeal, or unilaterally substituting the sanction would conflict with the prevailing internal disciplinary code and procedure in the public service. In as much as the Labour Court judgment attempts to put into perspective the consequences the use of section 158(1)(h) would have on the subsequent dispute resolution pathways, the State should not be unduly bound by irrational findings or sanctions imposed by presiding officers appointed to preside over its internal disciplinary hearings. , Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Full Text:
- Date Issued: 2024-12
Suspension in the disciplinary process
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
- Authors: Grigor, Charles Miller
- Date: 2013
- Subjects: Employees -- Suspension , Labor discipline
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10255 , http://hdl.handle.net/10948/d1020966
- Description: Employers often wrestle with whether or not to suspend an employee and the issue is what needs to be done before an employee could be suspended. Suspending an employee means to deprive him or her from entering the work place for a period of time, due to alleged misconduct which, due to the nature of the alleged misconduct and in the opinion of the employer, warrants the employee not to be in or near the workplace. Section 23 of the Constitution of the Republic of South Africa, affords every employee the right to fair labour practices and this right should be affected by the Labour Relations Act, 1995 (LRA). Unfortunately the LRA only deals with the unfair suspension under the definition of an unfair labour practice in section 186(2) by stating that the meaning of unfair labour practice is any act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The focus of this document thus is to scrutinise the lack of legislative guidelines relating to the procedural fairness of suspension of employees. It would thus necessitate an overview of the nature of suspension which would be discussed in length by way of referring to the right to suspend an employee as well as the application of the courts in such cases, the distinction between suspension as a preventative, or as a punitive measure and the possibility of suspension resulting in an unfair labour practice. The distinction between preventative and punitive suspensions are highlighted. Since it is not clear when, how and for how long an employee may be suspended, in the absence of clear guidelines, employers have to turn to the courts’ interpretation to get the necessary guidance on the application of a suspension. In order to ensure that the employer, experiencing unnecessary difficulty with the implementation of procedural fairness of suspensions, in a meaningful way, be assisted by the proposal that legislature consider to address this by including clear guidelines under Item 3 of Schedule 8 of the LRA.
- Full Text:
- Date Issued: 2013
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