Discipline and Dismissal

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We all know that employers must have a proper Disciplinary Procedure in place - namely, a procedure that is to be followed at disciplinary hearings. It is becoming quite common these days for employers to have a formal Disciplinary Procedure, and also an informal Disciplinary Procedure.


It is not necessary that an employer's disciplinary procedure should embody Court rules, or Court procedure - in fact, that is not only unnecessary, but also undesirable. However, the employer should have a formal procedure in place - however simple it might be - in the interests of consistency and to ensure that every employee is measured by the same standard.


The idea of disciplinary proceedings is to keep the matter short and sweet - to resolve the issue as quickly, efficiently and as simply as possible. Complicated procedures are therefore undesirable. Is it necessary for an employer to adhere absolutely to the last dotted " i " and crossed " T " of his procedure when contacting a disciplinary hearing?


Many disputes are referred by dismissed employees to the CCMA on the basis of "procedural unfairness." How important is it then for the employer to adhere to the last comma and full-stop in his procedure?


In Group Five Civils Ltd – case number NH11/2/8938 – 26th May 1993 – Industrial Court Pretoria :

The employer's disciplinary code did not make allowance for an employee at a disciplinary hearing to be represented to by his attorney. At the disciplinary hearing, the employer refused to allow the employee's attorney to represent him. The Court held that the employee was entitled to such representation. The court held that the applicant was entitled to representation by a legal practitioner of his choice & was unlawfully & 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 case number NH11/2/1622 – 17th August 1990  - Industrial Court Pretoria, the matter involved a strike (go-slow), and the employees contended that they had been unfairly dismissed because the employer did not issue an ultimatum and did not afford them a hearing prior to dismissal.


The court held that the absence of an ultimatum should be regarded as a procedural defect. The court declared that the effect which the failure to issue an ultimatum would have on the determination of the dispute between the parties would depend on how seriously the court viewed this failure. 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.


The court found that there were two mitigating factors to be taken into account in the  case. First, the individual applicants had been warned repeatedly about the consequences of their actions & could have been in no doubt as to respondent's attitude & probable course of action. It was only respondent's timing that had caught them by surprise. Second, the respondent had offered to take all employees back the day after their dismissal but none of them availed themselves of the offer.


Taking these factors into account, the court concluded that respondent's failure to issue an ultimatum was not of such magnitude as to render the dismissals unfair. It would therefore seem that absolute strict adherence to a disciplinary procedure is not necessarily required.


It would seem further that certain departures from the employer's disciplinary code could be condoned, depending of course on the seriousness of that departure – and on whether or not it constitutes a material breach of procedure – i.e., a breach of procedure of sufficient seriousness to render any dismissal unfair. Employers are nonetheless advised to adhere as closely as possible to their own procedures - there is no point in an employer compiling and introducing a procedure if he is not going to follow it.


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