The severity of the Sanction – can the Chairperson be overruled?

This question often arises – Can the employer, at an appeal hearing, increase the severity of a sanction imposed by the chairperson of the hearing? In other words, the chairperson imposes a sanction of final written warning, but the appeal chairperson increases that to a sanction of dismissal. Is he entitled to do so?This question was addressed in AUSA obo Melville / SA Airways Technical (Pty) Ltd [2002] 6 BALR573 (AMSSA).

In that case, the Arbitrator reminds us that the purpose of an appeal is not to allow the employer to have day "second bite at the cherry", but rather to allow the employee to try and persuade higher authority that the sanction handed down by the chairperson of the hearing was unfair.

We are further reminded that “It is in the nature of appeals in the disciplinary context, whether to an internal appeal body, or to an independent third party, that the contentions revolve around the fairness of the sanction already decided upon by the employer at the stage of the disciplinary enquiry. Should the appeal adjudicator believe a more serious sanction would have been justified, that only serves to support the conclusion that the sanction actually imposed was not unfair towards the employee.

A lot depends on the employer's policy and procedures, on his disciplinary code, and on his disciplinary procedure and appeal procedure.  In the above case, a lot of consideration was given to Main agreements, collective agreements and so on, in addition to the employer's own policies and procedures. The employer's procedures should make provision for a decision or sanction to be increased in severity, if that is what the employer requires.

However, any such provision must be fair, reasonable and lawful. The policies must clearly stipulate what powers of afforded to the chairperson of the disciplinary hearing, and what powers of afforded to the chairperson of the appeal hearing. It is pointless allowing the appeal chairperson limitless powers - that will make a mockery of your disciplinary hearing process.

In the case mentioned, the Main agreement made it clear that authority was given to the presiding officer of the disciplinary hearing to make the decision on a sanction, and that invoking the appeal procedure was entirely a decision to be made by the respondent. There was therefore no automatic right for the employer to invoke the appeal procedure as a means of increasing the severity of the sanction. The appeal procedure could only be invoked by the respondent.

In his findings, the arbitrator found that “I should stress that ……….. there would (not) be anything inherently improper about a procedure which made provision for a re-hearing of the merits if that was part of the existing procedures. Likewise, I see no reason why an employer might not wish to reserve the issue of determining a final sanction to a stage after the initial enquiry for the sake of preserving consistency of disciplinary standards. Obviously if it this was part of an agreed procedure that would be the end of the debate.”

Thus it can be concluded that if an employer wishes to reserve the right to review,  in an appeal hearing,  a sanction imposed by the chairperson of a disciplinary hearing, then this must be clearly stated in the appeal policy and procedure, and furthermore the employee should be warned by the chairperson of the disciplinary hearing, when advising the employee of his right to appeal, that his appeal may result in a more adverse outcome or may result in a stricter sanction being imposed. 

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