Time: is it the enemy?

           
We often get asked the question regarding the time limit between the commission of an offense of misconduct, and the date on which disciplinary action is taken? In labour legislation, there is no time limit stipulated. However, as with all things, there must be a reasonable relationship between the date of commission of the offense of misconduct and the date on which disciplinary action is taken.

In Department of Public Works, Roads & Transport v Motshoso & others [2005] 10 BLLR 957 (LC), the employer only instituted disciplinary action against the employee 3 years after commission of the alleged offense. The applicant in this matter had been dismissed because of various acts of misconduct performed with a firearm. At the arbitration, the arbitrator repeatedly asked for an explanation of the reason for the delay in instituting disciplinary action, but the question was never answered,  and was in fact evaded. Because there was no satisfactory explanation for the delay, the applicant was reinstated.

In Riekerk v CCMA & others [2006] 4 BLLR 353 (LC), the employer delayed instituting disciplinary action for six months after the commission of the offense. The applicant had been dismissed by the employer after having been found guilty on charges that he had gained access to management information without authorization, and with undermining the good relations of company management.  The arbitrating commissioner upheld the dismissal, but on review the applicant contended that his dismissal was both substantively and procedure unfair.

They were a lot of other issues raised, the important one being that the Court noted that the employer had taken more than six months to notify the applicant of the charges. Again, there did not seem to be any apparent reason for this delay.

Thus the question is not "what is the maximum period allowed between commission of the offense and the institution of disciplinary action," but rather the reason for the delay is the important factor. In disputes of this nature, the employer would be required to explain the reasons for any undue or unreasonable delay. Provided that the delay can be justified - and provided that the employee was kept of progress during the investigation, or kept informed of the reasons for the delay, there should not be a problem. It would be unfair to both the employer and employee if the employer were to rush through an investigation into an allegation of misconduct, with the sole aim and object of instituting disciplinary action as quickly as possible.

All offenses of misconduct require a proper investigation, and this would include taking reasonable time and making reasonable effort to properly investigate the allegations, and this would include the requirement to establish whether or not an act of misconduct has been committed,  and if so, whether or not disciplinary action is necessary or required. One cannot be expected to comply with the requirements of a fair procedure if one is to rush through an investigation merely to save time. If a delay is likely, keep the employee informed.

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