Procedural unfairness in disciplinary hearings

Employers often find themselves having to pay out money in compensation at the CCMA because of procedural unfairness. This is usually brought about by a failure on the part of the employer to follow fair procedure, or a failure by the employer to follow his own disciplinary procedure. However, not all departures from a fair procedure would be so grave as to render the procedure unfair. In other words, certain errors might be permissible.

In Group Five Civils Ltd – case number NH11/2/8938 – 26^TH May 1993, Industrial Court Pretoria, at the disciplinary hearing the employer refused to allow the employee's attorney to represent him. The court ruled that the employee was entitled to such representation, by a legal practitioner of his choice and was unlawfully and unfairly denied it.

However the court found further that despite this procedural defect, the employee had taken part in a scheme to defraud his employer and the fact that he had been denied representation by his attorney would not have brought about a different outcome to the disciplinary hearing. Despite this procedural defect, the dismissal was found to be substantively fair.

In SACWU & others v Harry Duncan Rods (Pty) Ltd case number NH11/2/1622 – 17^th August 1990  - Industrial Court Pretoria, the employees went on a go slow strike because they were dissatisfied with their wages. A meeting was held between the employees and the employer, but agreement had not been reached and the employees were dismissed the day after that meeting.

The employees maintained that their dismissal had been unfair because the employer  dismissed them without giving them a final ultimatum and had failed to conduct a proper disciplinary enquiry. The court found that the go slow amounted to a strike, and it was illegal because the employees did not follow the procedures of the LRA.

The court found that the employees had been fully aware that what they were doing was illegal, and that no good purpose would have been served for the employer to hold disciplinary hearings, and that in the action of an illegal strike the individual employees had waived their right to a disciplinary hearing. The dismissal was therefore substantively fair, and the court found that the employer's failure to issue an ultimatum was not of such magnitude as to render the dismissals unfair.

In Madondo / SA Breweries [2001] 8 BALR 875 (CCMA), the employee was dismissed for refusing to attend a “goal setting” meeting. The employee stated that he wished to be accompanied by a representative to this meeting and the employer informed him that the right to representation did not apply to such meetings. Upon being informed of this,  the employee was discourteous to his supervisor, and the arbitrator found that the employee was guilty of disobeying a reasonable and lawful instruction,  and also of unacceptable behaviour.

The employee was also on a final written warning for various incidents of misconduct, and his disciplinary record showed that he had been found guilty of other incidents of misconduct which indicated that this employment relationship was intolerable. However at the disciplinary hearing, the chairman refused to allow the employee to have representation because the representative that he had chosen was not a shop steward.

The employee then found another representative, but when he asked the chairman to recuse himself, the chairman expelled both the employee and his representative from the disciplinary hearing. The arbitrator found that this defect was so gross as to render the dismissal procedure to be unfair, and the employee was entitled to compensation. He was awarded a compensation of 12 months salary.

Thus it can be seen that while caution should be exercised by employers to ensure that they do follow a fair procedure, it does not mean that they must stick to a procedure absolutely to the letter - minor deviations from procedure would probably be allowed and would not be found to be unfair.

Serious deviations, however, would not receive the blessing of the court.

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