- Title
- The review of a disciplinary finding or sanction in terms of section 158(1)(h) of the labour relations act 66 of 1995
- Creator
- August, Joshua Cliff
- Subject
- Labor discipline
- Subject
- Labor laws and legislation -- South Africa
- Subject
- South Africa.-- Labour Relations Act, 1995
- Date Issued
- 2024-12
- Date
- 2024-12
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/68670
- Identifier
- 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.
- Description
- Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2024
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (77 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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- Visitors: 12
- Downloads: 2
Collections
NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | AUGUST, J.pdf | 721 KB | Adobe Acrobat PDF | View Details Download |