Department of Higher Education and Training Republic of South Africa v Nocha and Others (D314/2022) [2025] ZALCD 25 (14 July 2025)

Key Facts

Issues

• The court addressed whether the third respondent (disciplinary chairperson) properly applied Schedule 8 Item 3 of the Labour Relations Act (LRA) to assess the fairness of dismissal as a sanction, rather than erroneously referencing Item 7, which applies to reviewing existing dismissal decisions. The applicant argued that the chairperson's failure to use the correct guideline rendered his decision irrational and reviewable.
• The court examined the reasonableness of the applicant's application to substitute the imposed three-month suspension with dismissal, considering the gravity of the employee's misconduct (including dishonesty in inflating student test marks for payment and demanding sexual favours) and whether the employment relationship was irreparably damaged. The court concluded the chairperson failed to adequately consider all relevant factors, necessitating remittal for reconsideration.

Holdings

• The court found that the third respondent's decision to not impose dismissal was based on flawed reasoning, including the incorrect assumption that the first respondent's suspension had been lifted. This error necessitated remittal for reassessment of the appropriate sanction under the correct legal framework.
• The court determined that the third respondent's sanction was unreasonable as it failed to consider all relevant factors, including the serious nature of the misconduct involving dishonesty and the irretrievable breakdown of the employment relationship. The lack of explicit reasoning in the original report rendered the decision irrational.
• The applicant's review application is reinstated, and condonation for the late delivery is granted. The third respondent's sanction of a three-month unpaid suspension and final written warning is reviewed and set aside. The matter is remitted to the third respondent for reconsideration of the appropriate sanction due to insufficient reasoning in the original decision.

Remedies

• The issue of the appropriate sanction is remitted to the third respondent for reconsideration.
• The applicant is granted condonation for the late delivery of its review application.
• The sanction of a three-month unpaid suspension and final written warning is reviewed and set aside.
• The applicant's review application is reinstated.

Legal Principles

• The court applied the principle that dishonest misconduct inherently implies a breakdown in the employment relationship, as established in cases like Autozone v Dispute Resolution Centre. It held that the respondent's acts of financial and sexual misconduct, which involved deceit, sufficiently demonstrated untrustworthiness, making dismissal a reasonable sanction without requiring additional proof of irreparable damage.
• The court applied judicial review principles to assess the third respondent's sanction of a three-month suspension and final written warning. It concluded the decision was unreasonable under Item 3 of Schedule 8 to the LRA, which requires employers to consider the gravity of misconduct and other factors before determining a sanction. The court emphasized that the employer must demonstrate that the employment relationship is irretrievably damaged, which was not adequately addressed in the original decision.
• The applicant challenged the third respondent's treatment of hearsay evidence during the disciplinary hearing, arguing it was excluded and contributed to an unfair sanction. The court acknowledged this issue but found it immaterial to the sanction review since the third respondent had already concluded the respondent was guilty of the charges. The admissibility of hearsay evidence did not affect the court's assessment of the sanction's reasonableness.

Precedent Name

• Autozone v Dispute Resolution Centre of Motor Industry and Others
• Ntshangase v MEC: Finance Kwa-Zulu Natal and Another
• Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Others
• Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
• Gauteng Gambling Board v Silverstar Development Ltd and Others

Cited Statute

• Labour Relations Act, 1995
• Code of Conduct for the Public Service
• Code of Professional Ethics for the South African Council of Educators

Judge Name

Passage Text

• The effect thereof was that this court was unable to establish from the record the basis upon which the first respondent's suspension had been uplifted, whether possibly as a result of the effluxion of a mandatory time period, or because the applicant did not perceive the misconduct as having been an impediment to the first respondent's continued performance of his work functions. As this factor is of relevance to the determination as to whether the employment relationship has been destroyed as a result of the first respondent's misconduct, and this court is unable to make any finding in relation thereto, it is not in a position to make a determination as to whether the employment relationship has been irreparably compromised, and hence the appropriate sanction to be applied.
• In consideration of the possible substitution of sanction in the present instance, this court finds that there are certainly factors indicating that the first respondent's conduct has potentially rendered the continued employment relationship untenable: the misconduct was both serious and evinced dishonesty on his part. Moreover, in advancing his defence (impliedly rejected by the third respondent) he not only evinced a complete lack of contrition, but argued that the applicant itself had purposefully set about fabricating documentation and evidence in order to orchestrate his dismissal.