The conduct of the chairperson
Johanette Rheeder
Some employees drive us around the bend! They are unmanageable, frequently misconducts and simply do not understand the rules other employees seem to easily comply with. Sometimes it is also linked to personal problems such as marital problems, and alcohol abuse or dependency, the latter which seems to be a universal problem many employers have to deal with. This will inevitably lead to disciplinary action. Schedule 8 of the Labour Relations Act, 66 of 1995, requires employers to deal with alcohol dependency as an incapacity rather than misconduct. It is trite however, that misconduct can be coupled with the alcohol abuse, as is what happened in the case of Mitchell / SA Multi Loan (Pty) Ltd, (2011) 20 CCMA 7.1.4, also reported in [2011] 9 BALR 964 (CCMA). The applicant in this case was the employer’s operational manager and was suspended from duty and summoned to a disciplinary hearing to face a number of charges, including neglecting his duties, sleeping on duty, unprofessional conduct and adopting an “intimidating attitude” to junior staff.
Another factor that played an important role in the dismissal of the applicant was the alleged abuse of alcohol by the applicant. It was common cause that the applicant had attended a clinic for the treatment of alcohol abuse, over a period of 21 days during 2008, at the insistence and cost of the employer. During arbitration he denied that he had an alcohol problem at any stage; he attended the clinic because he was told by the CEO that if he did not, he would face dismissal.
In a disciplinary case, as well as an arbitration, the onus rests on the employer to prove the allegations on a balance of probabilities, i.e. the substantive fairness of the dismissal. At the commencement of the arbitration, the applicant raised certain alleged procedural defects, and the onus then also rests on the employer to prove the procedural fairness of the dismissal on a balance of probabilities. The employee had various procedural complaints, The first was the four disciplinary notices which were served on the employee, in each case a further charge(s) were added. This was the first mistake the employer made to keep on adding to the charges (the commissioner, however did not give any ruling on this issue). Upon suspension, the employee was charged with seven allegations. On the day of the hearing, the proceedings were postponed and an amended charge sheet was later served on the applicant, containing a further eighth allegation that the applicant smelt of liquor/was under the influence of liquor on the first date of the disciplinary hearing. Later on, two further amended charge sheets were given to the applicant, in terms of which two further allegations were included. Although it may not be incorrect to add charges at a later stage, employers should heed against this practice, especially where it is the result of sloppy investigation work and charges being added as the investigation progresses. There is also nothing wrong with adding charges of which the employer got knowledge of, only after the first charge has been served already. In principal, the employee should always be treated fairly, therefore, adding to the charges should not amount to victimisation and the employee must have enough information to identify what he has been charged with, and have enough time to prepare for his defence against the charges at the disciplinary hearing.
In this case, the added charge, dealing with his intoxication at the first hearing, had a direct impact on the chairperson, but the employer failed to notice this procedural irregularity when the chairperson continued with the second hearing. At the arbitration, the conduct of the chairperson came under scrutiny. During the course of the cross-examination of the chairperson, it became clear that the complaint against the chairperson was that he was biased in that he should have withdrawn as chairperson as he became a witness in respect of allegation 8 (the applicant smelling of liquor / being under the influence of liquor at the first disciplinary hearing), which was added to the charges after the first postponement, when the same chairperson postponed the disciplinary hearing.
The commissioner found that the chairperson, realising that he was a witness to the very event he was to adjudicate (the intoxication of the employee at the first hearing), should have withdrawn as chairperson, but he did not. Under these circumstances, the disciplinary hearing was procedurally unfair: a chairperson cannot be allowed to adjudicate factual issues which he had witnessed. This is such an elementary rule, according to the commissioner, that it is difficult to understand how the employer could have stooped below this accepted norm. This procedural unfairness of the dismissal, was found to be of such a nature that it deserves strict censure and the employee was awarded 6 months compensation.
Many employers still have an appeal process written in their codes of conduct. Sometimes this process is also a sham and a rubber stamp of the disciplinary finding. In the case of Sibisi / Metcash Trading Africa (Pty) Ltd (2009) 18 CCMA 7.1.7, also reported in [2009] 4 BALR 389 (CCMA), the chairperson of the appeal hearing did not follow the disciplinary code in that he found in the favour of the employer, but did not hear argument from the employer about the issues that formed part of the appeal. The employee complained about the conduct of the chairperson, including his bias, in the disciplinary hearing.
The commissioner looked at the policy and found that: “it is apparent from this policy that the intention thereof is that the parties to the dispute are permitted to present argument and that the chairperson must make his findings based on these arguments”.
It is common cause that the applicant employee placed her argument about the bias of the chairperson before the appeal chairperson, but the respondent (employer) failed to appear to present its argument as to why the conduct of its chairperson at the disciplinary hearing was above reproach and fair. It therefore follows, said the commissioner, that the chairperson had only the applicant’s version before him and should have made a finding on the version that was before him. Instead, the appeal chairperson found in favour of the employer and it follows, according to the commissioner, that the chairperson could not, in the absence of any submissions made by the employer, have found in favour of the employer.
What should the appeal chairperson have done? He should not have extended the parameters of the enquiry before him. He should also not have accepted the minutes as the true version of what occurred, and made a finding thereon. It should be noted that the minutes of a disciplinary hearing, (in the absence of a recording) is the second hand version or interpretation of the person taking the minutes and can either be lacking on specific issues or be incorrectly taken down. Employers who allow for appeals should consider recording the proceedings, rather using the transcription of the record, than the written minutes. Surely, if the minutes were taken by the chairperson, it should not be submitted!
The commissioner further found that he misunderstood the terms of reference before him as to what his duties were in terms of the code and should have conducted the appeal hearing as required by the terms of the respondent’s policy. He should have concentrated on the relevant issue before him. Had he dealt with the appeal in terms of the substance thereof, he would have had to call the employer so that he could investigate the applicant’s allegations against the disciplinary chairperson (bias, unfairness, interference with the cross-examination, the chairperson’s ignorance as to what the process required and the prejudice to the applicant). He should not have speculated in the absence of the representation of the employer as to what the outcome may have been, but should have been mindful of what the minutes show. Had he done that, he may very well have referred the matter back to the disciplinary hearing stage to be dealt with by a different chairperson. He therefore did not deal with these issues in an objective and fair manner. He therefore exacerbated the unfair conduct of the disciplinary hearing. The commissioner found that the manner in which he dealt with the appeal application was contrary to the respondent’s policy and contrary to the rules of fairness.
Prior knowledge of a case is always a contentious issue. It is not always possible for a chairperson to have no knowledge of the case, especially where the chairperson is part of the operations of the employer where the misconduct occurred. It is a fine line any chairperson should apply to determine whether she knows enough about the case to place her in a position where an opinion of guilt or innocence can be formed in her mind already. The golden rule should be that: if in doubt, rather recuse yourself and appoint another chairperson.”
In Manyama / Scaw Metals Chain Products (2011) 20 MEIBC 7.1.2, also reported in [2011] 8 BALR 803 (MEIBC), the employee, a sales representative, was dismissed for sending an e-mail to an acquaintance expressing interest in the trucking business. With regard to the applicant’s procedural complaint, the commissioner noted that the applicant had specifically pointed out during his disciplinary inquiry that the manager acting as presiding officer should not hear the matter because he had prior knowledge of the case. The manager conceded that he knew the basic facts, but had declined to recuse himself. The commissioner found that it was difficult to conceive how a presiding officer can be impartial when he had prior knowledge of the incidents giving rise to the charge. The dismissal was, accordingly, procedurally unfair.
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