There is ongoing debate as to what constitutes disciplinary action short of dismissal under the Labour Relations Act, 1995 ("LRA"). Section 186(2) of the LRA sets out a number of employer actions that can constitute an unfair labour practice. One of these is found in section 186(2)(b), which reads as follows: -

"(2) Unfair labour practice means any unfair 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 wording of the section indicates that only suspensions that take the form of a disciplinary sanction fall within its scope. Nevertheless, the courts have interpreted the definition to include precautionary suspensions prior to the institution of disciplinary charges.

The decision of the Labour Appeal Court ("LAC") in Department of International Relations and Cooperation v Laubscher and others deals with a further attempt to extend the scope of the section. Mr Laubscher was served with a notice to attend a disciplinary hearing for alleged misconduct where he was accused of unlawfully approving the payment of medical expenses to himself and other employees. Mr Laubscher and the employer agreed to have an arbitrator conduct an inquiry in terms of section 188A of the LRA into the alleged misconduct. Later the employer withdrew all disciplinary charges that had been levelled against Mr Laubscher.

He then referred an unfair labour practice dispute to the General Public Service Sectoral Bargaining Council ("GPSSBC") and argued that the employer's action constituted a disciplinary sanction short of dismissal in terms of section 186(2)(b) of the LRA.

The GPSSBC held that the employer's action fell outside the scope of section 186(2)(b). On review, the Labour Court ("LC") set aside the arbitration award and found that the conduct of the employer fell within the ambit of section 186(2)(b) of the LRA.

On appeal, the LAC overturned the LC's decision. In reaching its conclusion, the LAC relied on the meaning attributed to this phrase in item 3 of the Code of Good Practice: Dismissal.

It reasoned as follows --

"[27] The phrase "short of dismissal" in section 186(2)(b) is linked to the "disciplinary action". On the plain reading of the phrase "short of dismissal" in section 186(2)(b), conjunctively with item 3 of the code of good practice, it refers to a sanction less severe than dismissal. It means therefore that the employee would have been subjected to discipline resulting in a sanction other than dismissal. A disciplinary enquiry which had not commenced or has been abandoned without the imposition of a disciplinary penalty on an employee cannot be equated to a disciplinary action short of dismissal as contemplated in section 186(2)(b) of the LRA. It follows that the unfair labour practice as set out in section 186(2)(b) does not embrace the dispute which the employee had referred to the GPSSBC for resolution. The Labour Court erred in finding differently."

The LAC also found that Mr Laubscher had subjected himself to a voluntary and consensual process in the form of a section 188A enquiry. It was therefore untenable/ and or indefensible for Mr Laubscher to allege that he was subjected to an unfair labour practice.

This decision makes it clear that Mr Laubscher could not utilise the provisions of section 186(2)(b) to seek a remedy against an employer that has withdrawn disciplinary charges. This does not mean, however, that an employee in his position may not have a remedy. For example, in certain circumstances the fact that disciplinary proceedings have been stopped, together with other factors, may give rise to a delictual claim against an employer. Furthermore the employer's conduct may, in certain circumstances, lead to a claim based on constructive dismissal.

Reviewed by Peter le Roux an Executive in the ENSafrica Employment department

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