Case law trends on discipline

1
Case law trends on discipline

• Conference on discipline management
• In the public service
• October 2006

Dr C Mischke
2
The general picture

• No general impression that public service
  discipline offences different from private sector
  offences.
• Relatively few reported bargaining council awards
  in respect of discipline.
• Some sectors focus is on promotion and unfair
  labour practices.
• Fraud (false qualifications) appears to be an
  issue.

3
Proceduralism

• General trend in SA to focus on procedural issues
  in dismissal.
• Also happening in public service cases.
• Decisions of Courts have contributed to this
  problem.

4
Procedural complication representation 1

• Issue of legal representation in disciplinary
  proceedings now more complicated.
• General sense of unease in respect of
  disciplinary proceedings and chairing hearings.
• Do these concerns lead to more settlements of
  issues by parties?

5
Procedural complication representation 2

• MEC Department of Finance, Economic Affairs
  Tourism, Northern Province v Mahumani 2005 2
  BLLR 173 (SCA)
• Chairperson of disciplinary hearing has a
  discretion to allow legal representation.
• Discretion must be carefully exercised
  administrative fairness relevant in this regard.

6
Discipline administrative justice2

• Increasingly complicated issue of whether
  discipline and dismissal also constitute
  administrative action.
• Two lines of thought.
• Labour Court focuses on employment matters.
• High Court takes wider approach.

7
Discipline administrative justice1

• In practice employee has a choice of remedy
  (either LRA and unfair dismissal or High Court
  and damages).
• No clear distinction between employment disputes
  and administrative justice issues.
• Trend will continue and will increase.

8
Managing the disciplinary process1

• Courts have no sympathy if disciplinary process
  is mismanaged.
• Important recent decision Nell v Minister of
  Justice Constitutional Development another
  (2006) 15 HC 7.2.1
• Allegations of bribery.
• Suspended for more than 5 years.

9
Managing the disciplinary process2

• Suspension lifted by bargaining council review
  application launched.
• Disciplinary hearings quash charges.
• Notice of dismissal from D-G.
• Employee approached High Court administrative
  justice and PAJA.

10
Managing the disciplinary process3

• D-Gs decision did not comply with PAJA.
• Decision to dismiss set aside.
• Argument High Court did not have jurisdiction
  (Labour Court instead).
• High Court rejected this argument.

11
Implications1

• Disciplinary process must be managed properly.
• Need to comply with arbitration awards or launch
  review application immediately.
• Delegations must be in place.
• Decisions must be informed and procedurally
  correct.

12
Implications2

• Jurisdictional issues will continue for
  foreseeable future.
• Employees may approach either High Court or
  Labour Court for relief.
• Disciplinary action in the public service even
  more complicated.
• Getting better or getting worse?

13
Points to ponder

• Relatively few disciplinary cases reported in law
  reports.
• Ways of appropriately managing disciplinary cases
  effectively.
• Taking into account all the complicating factors.
• How feasible does it seem to take disciplinary
  action against public service employees?

14
Questions?

• Dr C Mischke
• www.mischke.co.za
• 083 268 1903