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We continue our discussion from last week. In addressing the matter of the company's justification for embarking on a review procedure, the arbitrator noted that whilst the first chairman's written reasons for his verdict were not very clear, it was not difficult to understand the reasoning behind his verdict - and especially the reasoning for finding the employee not guilty of sexual harassment.
Some of the reasons were that in this employment situation there was a " culture of ribaldry" in which both the employee and the complainant had participated and which had not particularly offended a female colleague of the complainant. The chairman had reasoned that in this context, i.e. the widespread use of "ribald language" with sexual connotations in the workplace, made it a difficult to conclude that the accused employee was aware that his utterances were unwanted, or that he persisted with his behaviour after the complainant had objected.
These two elements are essential elements in the offence of sexual harassment - but the chairperson of the disciplinary hearing reasoned - quite correctly - that due to the circumstances, these elements had not been proved and he therefore found the employee not guilty of sexual harassment.
The arbitrator found that based on this, the ruling made by the chairperson of the second hearing was a fallacious and unfair conclusion. The only basis on which the company had justified overturning the chairperson's decision was that the employee occupied a senior position, and could not therefore hide behind the "culture" of the workplace.
The arbitrator also noted that to argue that the employee had failed to maintain a proper standard of decorum was one thing - but it was quite another thing to accuse him of sexual harassment. The presiding officer's decision to impose a final written warning for the charge of using ribald or abusive language could not therefore be said to be inappropriate to the extent that it warranted interference on a review by the employer.
The test as to whether or not a second disciplinary enquiry may be opened against any employee depends upon whether it is fair, in all the circumstances, to do so. It was noted that in labour law, fairness - and fairness alone - is the yardstick. The employer must also be careful not to contravene his own disciplinary code.
Generally, if his procedure does not provide for the review of the decision of the presiding officer in a disciplinary hearing, then he cannot do it. If his procedure does provide for it, then he can do it. But again it must be emphasised that he can only do it if it is fair, considering all the circumstances, to do so.
In the case we are looking at, it was also found that it would probably not be considered fair to hold more than one disciplinary enquiry, except in very exceptional circumstances.
This would imply that even if the employer has made provision for such a review in his disciplinary code, that procedure could not be applied simply willy-nilly to every disciplinary hearing - there would have to be exceptional circumstances to warrant the employer invoking that procedure.
The question addressed was whether an employer is bound by the outcome of the disciplinary process which he has adopted in his disciplinary code, or whether, in the event that senior management is dissatisfied with the outcome, it may overrule its own disciplinary process by unilaterally instituting a further procedure, with the possible consequence of a more onerous sanction against the employee. The arbitrator was of the view that the principle of whether or not, considering all the circumstances, it would be fair to hold a second disciplinary hearing should apply, and that the principle of fairness - and fairness alone -should be the yardstick.
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