ZACC 03
Judgement Date:07 February 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday 7 February 2019 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against a decision of the Labour Court dismissing an application to review and set aside an award of a bargaining council.
On 22 July 2010 the applicant, Ms Stokwe, was charged with four counts of misconduct by the Eastern Cape Department of Education (Department) for awarding a service contract to her spouse’s company without the required approval and consent of her employer, the Department. Ms Stokwe declared the award of the service contract to her spouse’s company to Human Resources in accordance with the required procedure. However, she did not receive permission from the Head of Department to make the award.
Ms Stokwe’s disciplinary hearing was scheduled for 12 August 2010 but was ultimately held on 30 March 2011. On 22 June 2011 the Department informed Ms Stokwe that she had been found guilty of two of the four charges brought against her and that she was dismissed. Ms Stokwe noted an appeal to the Eastern Cape MEC for Education (MEC) against both the finding that she was guilty and the sanction. Because section 8(4) of Schedule 2 of the Employment of Educators Act (EEA) provides that a sanction may not be implemented pending the outcome of an appeal, Ms Stokwe was retained and remained in the employ of the Department. On several occasions Ms Stokwe requested reasons for her dismissal from the Department but received no response. Eventually she was advised that her appeal was unsuccessful. On 14 February 2014, almost five years after the misconduct occurred, the sanction of dismissal took effect and she was dismissed.
Aggrieved, Ms Stokwe referred a dispute to the Education Labour Relations Council, the third respondent, challenging the substantive and procedural fairness of her dismissal. The matter was set down for arbitration on 4 August 2014. The arbitrator, Mr Qotoyi, found that although three years in dealing with and disposing of a labour dispute is an inordinately long delay, any prejudice that Ms Stokwe may have suffered was ameliorated by the fact that she was gainfully employed throughout and the abandonment argument subsequently had to fail in light of the Department’s reliance on section 8(4). The arbitrator concluded that Ms Stokwe’s dismissal was substantively fair as her misconduct seriously and negatively impacted on the trust relationship with the Department. The arbitrator’s award was however silent on the procedural fairness of Ms Stokwe’s dismissal.
Dissatisfied with the arbitration award, Ms Stokwe approached the Labour Court to have the award reviewed and set aside. The application was opposed on the grounds that the arbitrator’s award was reasonable. The Labour Court upheld Mr Qotoyi’s finding that Ms Stokwe’s dismissal was substantively fair and dismissed Ms Stokwe’s review application. The Labour Court refused leave to appeal. Ms Stokwe’s application for leave to appeal in the Labour Appeal Court suffered the same fate.
In the Constitutional Court, Ms Stokwe advanced the same arguments that were before the arbitrator but further submitted that the delay was an unexplained and unjustified departure from the Department’s internal disciplinary procedure and was therefore unlawful and inconsistent with the Labour Relations Act (LRA). Ms Stokwe argued that the Department’s conduct was not only inconsistent with the tenets of procedural fairness under the LRA, but also amounted to a waiver of its right to discipline her.
In response the Department and the MEC argued that the Constitutional Court’s jurisdiction is not engaged and that the application for leave to appeal should be dismissed on that basis alone. The Department and the MEC submitted that although, ordinarily, they should be guided by the underlying principle that disciplinary proceedings must be concluded in the shortest possible timeframe, the principle and disciplinary codes serve as a guide and are not rigid rules on how disciplinary proceedings should be conducted. The Department and MEC relied on Ms Stokwe’s removal from the transport programme as indicative of a breakdown in the trust relationship.
In a unanimous judgment penned by Petse AJ, the Constitutional Court held that Mr Qotoyi was reasonable in finding that Ms Stokwe’s dismissal was substantively fair. Accordingly there was no basis for the Court to interfere with the finding of the arbitrator in respect of the substantive fairness of the dismissal. The Court did find it necessary to determine whether the dismissal was procedurally fair.
The Court held that both the EEA and LRA provide that the principles underlying any procedure to discipline an educator entail that discipline should be prompt and fair and that the disciplinary proceedings must be concluded in the shortest possible time frame. Further the Court held that if an employee is retained for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down. The Court concluded that the excessive delay in finalising the disciplinary process and failure to provide Ms Stokwe with adequate reasons for her dismissal was not acceptable. The Court therefore held that the delay did indeed render Ms Stokwe’s dismissal procedurally unfair. However, the Court found that the prohibition in Schedule 2 of the EEA had precluded the Department from implementing the sanction pending the decision on appeal so the delay could not in and of itself be taken to mean that the Department had waived its right to pursue disciplinary proceedings against Ms Stokwe.
In the result, leave to appeal was granted, the appeal upheld and the order of the Labour Court was set aside and substituted with an order finding that Ms Stokwe’s dismissal was procedurally unfair. The Court in turn held that the matter must be remitted to the Labour Court as a specialist cou
The Full judgment here.