In the recent Labour Appeal Court case of Tshabalala v Moqhaka Local Municipality and Another (JA88/2024) [2024] ZALAC 60 (21 November 2024), a municipal manager (the employee) at Moqhaka Local Municipality (the employer) was suspended on the 1st of March 2024, due to alleged misconduct.
After receiving the notice to attend a disciplinary hearing on the 31st of May 2024, the employee reported to work on the 3rd of June 2024, claiming that their suspension had expired. After exchanging correspondence with the parties’ respective attorneys, the employee lodged an urgent application requesting the Labour Court to declare that the suspension had lapsed on the 31st of May 2024, per regulation 6(6) a of the Local Municipality Disciplinary Regulations for Senior Managers. The employee argued that the employer breached regulation 6(6), which provides that disciplinary hearings for senior staff must commence within three months of suspension, failing which the suspension will lapse.
However, on the 12 of July 2024, the Labour Court dismissed the application and held that:
“A disciplinary hearing commences upon the service of the disciplinary charges and the notice of disciplinary charges. The service of such is an external manifestation that another party is beginning to claim something from the other party. As stated in the Goba matter, it will be incongruent to suggest that the proceedings commence only when the matter sits for trial.”
“In this case, the disciplinary proceedings against the applicant commenced upon the service of the notice of disciplinary proceedings, which was before the expiry of the three-month period. Her suspension has not lapsed.”
The employee appealed this judgment, arguing that the Labour Court failed to distinguish between the commencement of the disciplinary proceeding and the hearing itself. The Labour Appeal Court found merit in this argument, noting that while disciplinary proceedings may begin with the charge sheet, the regulations specify when a disciplinary hearing begins, including the appointment of an external presiding officer and the serving charges within a specified timeframe.
This construction has previously been upheld and applied by the Labour Court. In Mgengo v Lekwa-Teemane Local Municipality (2020), ZALCJHB 255, Nkuta-Nkotwana J (as she then was) said the following:
“The issuing of the charge sheet and the notice to attend the disciplinary hearing do not commence the disciplinary hearing but facilitate the process towards its commencement. I agree with Cele J that the disciplinary hearing can only commence in the actual sitting when the presiding officer officiates over the proceedings or proverbially takes the captainship and navigates the ship. This construction accords with Regulation 10(1)(a) which states that the disciplinary hearing must commence within three months from the date that the Municipal Council resolved to institute a formal disciplinary hearing.”
“I get the impression that the purpose of the Disciplinary Regulation is to ensure that the suspension and disciplinary hearing of a senior manager in the Municipality is attended to expeditiously to avoid prolonged leadership vacuity, which could impede the rendering of Municipal services. Also, it cannot be overstated that ‘suspension is a measure that has serious consequences for an employee and is not a measure that should be resorted to lightly.’ Hence, it is perfectly logical that once the three-month period of suspension lapses, the Municipal Council is debarred by Regulation 6(6)(b) from extending it. In my view, it is incumbent upon the Municipal Council to act with the speed of a gazelle consequent to the resolution to institute a formal disciplinary hearing against a senior manager.”
A contrary view, on which the Labour Appeal Court relied, was expressed in Goba v Rand West City Local Municipality (2021) ZALCJHB 397, where the Court held that a disciplinary hearing commenced when the charge sheet was served on the employee. The reasoning of the Court in that matter was that the grammatical meaning of the word ‘commence’ meaning to begin or start (in a legal context, by the issuing of a statement of claim or summons or notice of motion), overlooks the fact that the object of the verb ‘commence’, as regulation 10 (3)(a) indicates, is ‘the disciplinary hearing’, and not the disciplinary proceedings. The error in Goba, perpetrated by the Labour Court in the present instance, is demonstrated in the Labour Court’s conclusion that “(a)s stated in the Goba matter, it will be incongruent to suggest that the proceedings commence only when the matter sits for trial’. Regulation 6 makes no reference to the commencement of ‘proceedings’ – what is at issue is the commencement of the disciplinary hearing.
The Labour Appeal Court held that the disciplinary hearing did not commence within three months of the date of the employee’s suspension, which was on March 1, 2024. The suspension lapsed on 31 May 2024. The Labour Court thus erred in applying the ratio in Goba, and the appeal was upheld. The employer was ordered to reinstate the employee.
In conclusion, employers have a duty to uphold procedural fairness when an employee is suspended pending a disciplinary hearing. This entails providing sufficient notice of the hearing and conducting it within a reasonable timeframe, avoiding undue delays.
Article by Thina Madubela
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)