Disciplinary Hearings: Formal or Informal?

 
The question often arises as to whether or not an employer can issue a written warning or a final written warning without holding a disciplinary hearing. In NUMSA obo Tshikana / Delta Motor Corporation [2003] 11 BALR 1302 (CCMA) this question was addressed.

The applicant contended that the sanction of 1 day unpaid leave was an unfair labour practice, and was procedurally unfair because a formal disciplinary hearing was not held. It is one of the principles of a fair procedure that an accused employee must always be given the opportunity to state his case and to respond to the charges.

Schedule 8 to the Labour Relations Act - the Code of Good Practice Dismissal - also addresses such matters. In paragraph 3(2), the Code states that “ Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings.”

In paragraph 3(3), the Code states that:

“Formal procedures do not have to be invoked every time a rule is broken or a standard is not met.  Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. “

Paragraph 4(1)states : “The employee should be allowed the opportunity to state a case in response to the allegations.” Therefore, following a few simple rules, instances where dismissal is not contemplated can be handled by an informal disciplinary enquiry. In the case mentioned above, the employee was charged with gross insubordination and the employer did not even give a second thought to the question of dismissal.

He therefore held an informal enquiry, and the employee was “ suspended for 1 day without pay.” Put differently, the sanction was one day unpaid leave. The arbitration award in the above case stated that an employer cannot be expected to hold a formal disciplinary hearing every time an employee breaches a rule. “ if this were a requirement, employers’ human resources or industrial relation offices would be involved in hearings round-the-clock.”

The award stated further that “this does not mean that an employer has carte blanche to discipline at will, and unfairly. A good reason for discipline must exist.”

The arbitrator stated that insubordination is a good reason to discipline, and that in many cases insubordination would be considered to be a serious form of misconduct and that the majority of employers would consider dismissal as an option. In such cases, stated the arbitrator, an employer would or should conduct a formal disciplinary hearing.

In other cases where dismissal is not contemplated, an informal enquiry is considered to be procedurally fair.

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