Can the Sanction be increased?

 

Derek Jackson

I am sometimes asked the question whether if the Chairman of an appeal hearing considers that the sanction imposed at a disciplinary hearing is not strict enough, can he increase the sanction? Put differently, if the employer feels that the sanction imposed was too lenient, can he increase the sanction?

This same question was raised in AUSA obo Melville / SA Airways Technical (Pty) Ltd [2002] 6 BALR 573 (AMSSA). Although it is not necessary for employers to have an appeal procedure in place (aggrieved employees can refer an appeal to the CCMA or Bargaining Council), most employers do have an appeal procedure in place, although very few actually stipulate in their procedure exactly what the powers of the appeal committee encompass.

In the above case, the arbitrator indicated that the appeal chairpersons powers should be indicated in the appeal procedure - in other words, the appeal chairperson must know exactly what he may and may not do. Further, this case involved the provisions of a collective agreement, as well as the employer's own disciplinary code. Obviously, the terms of the collective agreement are not applicable in the general sense.

The arbitrator referred to several other cases – Kohidh v Beier Wool (Pty Ltd - where the commissioner in that case assumed that if an employee initiates an appeal, he is taking the risk of having his sentence increased. In Strydom v Usco Ltd, and other cases, the employer simply changed the decision of the inquiry chairperson without any further hearing being conducted. In the case of Kohidh v Beier Wool (Pty Ltd, it was found that the employer could not change the decision of its agent, the chairperson of the disciplinary inquiry, and that it was bound by his decision.

It might also be construed that if an employer wishes to change (appeal against) the decision of the chairperson, it could be construed that the employer is appealing against his own decision – he did, after all, appoint the chairperson to act on his behalf - and this appointment implies that the chairperson has been given a mandate to make a decision.

In Strydom v Usco Ltd, where management substituted the decision of the disciplinary chairperson with a more severe sanction, it was found that the employer's disciplinary procedure had no provision to allow such a step to be made, and therefore the employer had acted against his own disciplinary code. The commissioner also held that the appeal inquiry amounted to exposing the employee to double jeopardy.

The arbitrator in AUSA obo Melville / SA Airways Technical (Pty)Ltd concluded that a procedure which made provision for a re-hearing of the merits of the case would not in itself be unfair, and he stated that he did not see any reason why an employer might not wish to reserve the determining of a final sanction to a stage after the initial inquiry, for the sake of consistency.

This would apply particularly in those instances where the chairperson is not given a mandate to make a decision, but only to make a recommendation. (Bhengu & others v Union Co-operative Ltd (1990) 11 ILJ 117 (IC)) The arbitrator also indicated that although he was unable to establish the right to increase a sanction on appeal in the case before him, the employee should at least be aware it of the prospect of an adverse revision of the sanction in an appeal hearing.

This strongly indicates that if the employer does have an appeal procedure in place, then this must be clearly stated in that procedure (that a more severe sanction could be imposed) , and another requisite would be that the appointed chairperson is given authority only to make a recommendation, and not a decision. It would also be required that, at the conclusion of the disciplinary inquiry, the employee must be expressly informed in writing that he does have the right to appeal, but that there is a risk that the sanction may be increased upon appeal.

But there is a way in which all those can be avoided. We are inclined to rather follow the view that it is in fact unnecessary for an employer to have an appeal procedure in place, because it has been shown that in almost every appeal, the decision or recommendation of the inquiry chairperson is upheld.

It is not a regular occurrence for employers to increase the severity of a sanction on appeal, and our belief is that it is far better, if the employee is dissatisfied with the sanction handed down at the disciplinary inquiry, he can appeal to the CCMA or Bargaining Council. In addition, we must emphasise the need for the chairperson of the inquiry to be a person who is properly trained in such matters, and that due consideration must be given in deciding on what sanction is to be imposed.

In our view, a chairperson who, with the exception perhaps of the most simple of cases, delivers a verdict within minutes of hearing the evidence, and delivers a finding on the sanction five minutes later, has not done his job. When a sanction is imposed, the chairperson must be satisfied within himself that the sanction is fair and reasonable in the circumstances, and that no bias has been shown in favour of either party. Acting in that manner will ensure the avoidance of a rough road and many potholes.

For further information, contact Derek Jackson on This e-mail address is being protected from spambots. You need JavaScript enabled to view it