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Often, employers make mistakes when conducting a disciplinary hearing – usually a procedural error of some sort. We are only human, after all – and taking into account the pressure and stress of a disciplinary hearing, usually accompanied by the fear of "what if he takes us to the CCMA?" mistakes are bound to occur. But all is not lost – a procedural error does not necessarily mean that you are in trouble,
In Group Five Civils Ltd [1993] IC Pretoria, the employer refused to allow the employee's attorney to represent him at the disciplinary hearing. The court held that the applicant was entitled to representation by a legal practitioner of his choice and was therefore unlawfully and unfairly denied it. However, the court found that despite this procedural defect, it had been established that the employee did partake in a scheme to defraud his employer.
The fact that he had been denied representation by his attorney would not have brought about a different outcome to the disciplinary hearing, and therefore, despite the procedural defect, the dismissal was found to be substantively fair and there were no grounds for the court to interfere in the dismissal of the applicant.
In SACWU & others v Harry Duncan Rods (Pty) Ltd [1990] IC Pretoria, the applicants had been dissatisfied with their wages and then decided to take industrial action in the form of a go slow. A meeting had been held between the parties, but an acceptable compromise had not been reached. Applicants had been dismissed a day after the meeting.
The applicants approached the court alleging that their dismissals had been unfair because the respondent had dismissed the individual applicants without giving them a final ultimatum and had failed to conduct proper disciplinary enquiries into the alleged misconduct of the individual applicants. With regard to the respondent's failure to conduct disciplinary hearings, the court held that the go slow amounted to a strike in terms of the LRA. Further the go slow was illegal as none of the procedures required by section 65 of the LRA had been followed.
The individual applicants had been fully aware of what a go slow entailed and knew that it was illegal. The court concluded that in the circumstances, it would serve no purpose for the respondent to have held disciplinary hearings and that the individual applicants had waived their right to a disciplinary hearing as a result of the illegal strike action.
The court concluded that the dismissal of the individual applicants had been substantively fair and the go slow action embarked upon by the applicants amounted to an illegal strike and it could not be argued that the go slow was the only avenue open to the applicants to bring their demands to the notice of the respondent.
With regard to the procedural fairness, the court again pointed out that the individual applicants had waived their right to a disciplinary hearing. However, that alone did not satisfy the requirements of procedural fairness - the effect of the respondent's failure to issue an ultimatum to the individual applicants also had to be considered.
The court held that it was in the interests of sound industrial relations that an employer should make it clear to its employees when its patience had finally been exhausted. At that point, unambiguous ultimatum should be issued to the employees giving them sufficient time to reconsider their conduct.
The court held that the absence of an ultimatum should be regarded as a procedural defect. The court held that the issuing of an ultimatum could not be said to be an absolute prerequisite for the dismissal of illegal strikers to be fair. In this case the individual applicants had been warned repeatedly about the consequences of their actions and could have been in no doubt as to the respondent's attitude and probable course of action.
It was only the respondent's timing that they had caught them by surprise. Second, the respondent had offered to take all employees back the day after the dismissal but none of them availed themselves of the offer. Taking these factors into account the court concluded that the respondent's failure to issue an ultimatum was not of such magnitude as to render the dismissal is unfair
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