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Fairness of disciplinary hearings still a problem
By Ivan Israelstam
Item 60.4 of
the draft CCMA Guidelines: Misconduct Arbitrations states that it is not unfair
for employers to use third parties such as attorneys or labour law experts to
chair disciplinary hearings.
However, these highly important new guidelines do not give disciplinary hearing
chairmen the right to conduct such hearings in a biased manner.
The guidelines oblige commissioners to assess whether workplace dismissals are
fair or unfair.
It is extremely difficult to see how dismissals can be declared fair if the
presiding officer is biased and if it is shown that such bias results directly
in prejudice to the employee.
In the case of Chirwa v Transnet Ltd (2009 4 BALR 350) the dismissal was found
by the CCMA to be procedurally unfair.
This was due to the bias of the presiding officer of the disciplinary hearing,
whose relationship with the accused employee had clearly been fraught with
animosity for a long period of time.
A review of disciplinary cases shows that employers are still falling short in
regards to employees' rights to an impartial hearing.
The reasons for this include:
-
The employer's intention
is to hold a kangaroo court and get the employee fired, regardless of the
consequences.
-
Those employees assigned
the task of chairing hearings are not properly trained.
-
The employer does not
understand what constitutes bias and does not realise that the hearing is in
no way impartial.
There are in
fact a number of factors that may suggest that the hearing chairman could be
biased.
These include, among others, situations where the presiding officer:
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Has previously had a
clash with the accused employee.
-
Has prior knowledge of
the details of the case.
-
Unreasonably turns down
requests from the employee for representation, for specific witnesses to
appear, for the services of an interpreter, or other requirements.
-
Makes a finding that is
unsupported by the facts brought before the hearing.
What does
not necessarily constitute bias is the relationship of the chairman to the
employer's representative or refusal by the presiding officer to allow legally
impermissible evidence, to hear irrelevant testimony or to allow unjustified
adjournments.
However, it is extremely difficult for a hearing chairman to distinguish fairly
between reasonably and unreasonably turning down the accused's request for a
witness, representative, adjournment or other requirement.
The ability to make rulings in this regard that will stand up in court can only
be acquired via substantial formal training and solid experience of the
presiding officer.
In the case of FAWU obo Sotyato v JH group Retail Trust (2001, 8 BALR 864) the
employee confessed to having stolen two bottles of beer from the employer and to
drinking one of them during working hours.
The arbitrator did not accept the confession as valid and also found that the
chairman of the hearing was biased.
This was because the chairman had caught the accused employee with the beers and
had been involved in drawing up the charges.
This created a reasonable apprehension of bias and rendered the dismissal
procedurally unfair.
The employee was reinstated with full back pay.
In Slabbert v Ikhwezi Truck Tech (Pty) Ltd (2008, 1 BALR 75) the employee
alleged that the chairman of the disciplinary hearing had been biased because he
had wanted the employee's job for himself.
However, the arbitrator found the dismissal to be fair because:
-
The employee had
provided no proof of the allegation that the chairman wanted the employee's
job.
-
There was no evidence
that the chairman had behaved unfairly in conducting the disciplinary
hearing or in arriving at his decision.
To ensure
that employers do not lose cases due to chairman bias or alleged bias at
disciplinary hearings, employers must ensure that:
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Hearing chairmen have no
involvement in or knowledge of the case prior to the hearing.
-
Hearing chairmen have a
solid understanding as to what constitutes apprehension of bias.
-
They contract in a
labour law specialist to chair hearings where the employer has no internal
official with the necessary qualifications and knowledge to carry out the
task properly.
Ivan Israelstam is chief
executive of Labour Law Management Consulting. He can be contacted on 011 888
7944 or
labourlaw@absamail.co.za.
Our
appreciation to Ivan and The Star newspaper for permission to publish this
article.
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