You cannot dismiss without following procedure

Ivan Israelstam
 

Sooner or later the labour law catches up with employers who fail to follow proper disciplinary procedure and to provide good reason for dismissals. This is because section 188 of the Labour Relations Act (LRA) gives the employer the onus of proving that it has been procedurally and substantively fair in dismissing employees. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

No Labour Court decision illustrates these points better than the one delivered in Riekert v CCMA and others (2006, 4 BLLR 353). In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management. He took the employer to the Council for Conciliation, Mediation and Arbitration (CCMA) but after hearing the facts, the arbitrator upheld his dismissal.

Riekert then took the arbitrator on review to the Labour Court where the judge made the following findings:

• The CCMA arbitrator had recognised that the employer had a very extensive disciplinary code in place but had not adhered to it in this case.
• Since the employer's disciplinary code was incorporated in his employment contract the employee was entitled to insist that it be complied with
• Despite the above the arbitrator found that the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines
• While it is true that disciplinary codes are merely guidelines this does not entitle employers to deviate from the procedures of the organisation as and when they liked
• It was unclear how the arbitrator arrived at the conclusion that the hearing was substantially fair.

This was because, contrary to the employer's own disciplinary code, the chairperson of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions

• The employer had waited six months from the time it became aware of the misconduct before bringing the charges against the employee.

This was despite the employer's own disciplinary code that required that charges be brought within a reasonable time.

• The employee had been denied the opportunity to call witnesses in his defence.
• The CCMA arbitrator had been wrong in accepting the employer's deviation from its own disciplinary code in the absence of any compelling reason for such deviation.
• No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis that would justify that charge
• The arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority.
• The employer's witnesses were not even able to remember the date of the alleged incident
• The arbitrator's finding that the employee had not been frank in his testimony had neither been justified nor reasoned
• The arbitrator had failed to apply his mind to the evidence at all
• The arbitrator's award was set aside
• The dismissal was found to be both substantively and procedurally unfair
• The employer was ordered to pay the employee R100 000 in compensation plus interest
• The employer was also ordered to pay the employee's legal costs.

This case is of great importance as it provides employers with a number of extremely valuable lessons on how to manage the disciplinary process in their organisations.

Among other things, they should not:

• ignore their own disciplinary codes
• allow any unnecessary delays in notifying employees of disciplinary charges
• prevent an employee from bringing witnesses to his/her disciplinary hearing
• forget, before attending a disciplinary or arbitration hearing, to gather and prepare all evidence thoroughly.

Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011- 888-7944 or via email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Our appreciation to Ivan and The Star newspaper for permission to publish this article