Back to basics: Rethinking disciplinary hearings
The challenge
South African employment law is perceived by many organisations and companies as being somewhat onerous on employers. However, there is one area where it is the employer who has arguably become its own worst enemy – disciplinary proceedings.
A review of the case law and of employers’ disciplinary codes often reflects that the requirement of procedural fairness has been interpreted by employers to mean that employees be afforded the rights of a criminal defendant and in many instances disciplinary hearings have been turned into mini criminal trials. This often results in protracted and costly internal disciplinary hearings.
Furthermore, as hearings in the CCMA or relevant industry specific Bargaining Council are hearings afresh, the employer is required to repeat the whole process at arbitration.
This position has been exacerbated by the fact that many CCMA commissioners have adopted, as law, the formalistic approach to disciplinary enquiries traditionally followed by employers and require employers to show that they have acted in accordance with this high standard in order to discharge the onus of proving that the employee’s dismissal was procedurally fair.
So how do employers break this cycle and get back to basics?
The solution
In terms of the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) (“the Code”) all that is in fact required of an employer to show that it has followed a fair procedure in the case of misconduct is the following:
- The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry.
- The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
- The employee should be allowed the opportunity to state a case in response to the allegations.
- The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative (shop steward) or fellow employee.
- After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
- If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a Bargaining Council with jurisdiction or to the CCMA (or to any dispute resolution procedures established in terms of a collective agreement).
A reading of the Labour Court’s recent judgments on the issue of procedural fairness in misconduct dismissals, most recently Nitrophoska (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 1981 (LC) and Munnik Basson Dagama Attorneys v CCMA & Others (2011) 32 ILJ 1169 (LC), shows an increasing frustration on the part of the Labour Court with the formalistic criminal procedure style adopted by employers in disciplinary hearings, and reinforced by the CCMA.
In Nitrophoska, the Court reiterated that the Code was intended to do away with the rigid 'criminal procedure style' provisions that had proliferated under the Labour Relations Act, 1956 and acknowledged that, regrettably, the flexibility introduced by the Code has not always been recognised by arbitrating commissioners, thus imposing an unnecessary burden on employers without advancing the protection of workers.
The Court in both Nitrophoska and Munnik Basson quoted with approval the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC) where Van Niekerk J held that the signal of a move to an informal approach to procedural fairness was clearly presaged by the explanatory memorandum that accompanied the draft Labour Relations Bill (now the current Labour Relation Act), which memorandum stated that what was required was “a fair, but brief, pre-dismissal procedure ..... more flexible, less onerous, approach to procedural fairness”. In his judgment, Van Niekerk J held that there was no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial and that when the Code refers to the opportunity that must be given to the employee to state a case in response to any allegations, this means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.
The Courts have further found that the above principles have even greater application where senior managerial employees are involved and that the form of observance of the audi alteram partem rule may be relaxed in the case of a senior manager.
From the above, it is clear that the formalistic and technical “criminal trial” approach to disciplinary hearings adopted by employers is not in fact a requirement of South African law and that employers are entitled to move away from this approach (and hopefully with them the arbitrators assigned by the CCMA and Barging Council to adjudicate such matters).
