Discipline and Dismissal

Employers need to know meanings of prejudice

Ivan Israelstam

 

The word prejudice can have any number of different meanings. Any employer needs to understand these meanings in the context of labour law because all South African employers are bound by numerous strict labour laws.

The first meaning of prejudice refers to an opinion formed before the receipt of the relevant facts. It appears that the word prejudice has the same root as the word prejudge.

Therefore, the chairperson of a disciplinary hearing or an arbitrator could be described as prejudiced if he or she makes a finding that is based less on the facts of the case than on their opinions or feelings towards the parties in the case.

For example, the disciplinary hearing chairperson might find a driver guilty of damaging the company vehicle because the driver had once been rude to the chairperson. The chairperson therefore has a personal reason for disliking the driver. He or she might therefore make up his or her mind that the employee is guilty even before the hearing gets under way.

This could result in a dismissal despite the fact that the complainant brings no proof at all of the driver's guilt. Such prejudice or bias would be grounds for the employee to take the employer to CCMA. It could also occur, for example, that an arbitrator might prejudge a case based on who the parties are even before hearing the evidence. 


That is, the arbitrator might decide right at the outset to find in favour of the employee because they are both of the same race or gender, despite the fact that the employer then brought much stronger proof of its case.

Should this occur, the employer would have the right to take the arbitrator to Labour Court on review on the grounds of prejudice. The second meaning of prejudice is related to the first one. It occurs at the workplace when, for example, an employer dislikes people of a certain race.

This could result in mistreatment of employees who are members of that race and could lead to a CCMA case. The third meaning is used in the phrase "without prejudice" and, where it appears in a letter, means that the writer is reserving his or her legal rights despite the content of the letter.

The fourth meaning of "prejudice" means detriment. That is, if a party to a CCMA matter argues that it could suffer prejudice this means that the party believes it could suffer detriment or loss or be negatively affected in some way.

For example, an employee who has referred a case late to the CCMA may argue that, despite his or her lateness, the CCMA should hear the case because failure to do so would result in prejudice to the employee. That is, the employee could argue that he/she would lose his or her opportunity for justice if the case is dismissed.

Another example of this fourth meaning of prejudice came up in the case of Dell v Seton 2009, 2 BLLR 122). In that case the employer failed to keep to its own disciplinary code when dismissing an employee. However, the Labour Court found that the procedure that was followed, despite deviating from the disciplinary code, was not unfair and that the deviation did not result in any prejudice to the employee.

This meant that the deviation from the code did not, in itself, result in any detriment to or negative effect on the employee. The court, therefore, upheld the fairness of the dismissal.  In the case of Slabbert v Ikhwezi Truck Tech (Pty) Ltd (2008, 1 BALR 75) two different meanings of the concept of "prejudice" came up.

The company's managing director was fired for allegedly taking a bribe. The dismissed employee claimed:

  • That the chairperson of the disciplinary hearing was prejudiced because he had wanted the employee's position of managing director (MD) and dismissed him in order to clear the way for his own move into the post of MD.

 

In this sense the word prejudiced was used to mean bias; and that the chairperson's refusal to allow him a legal representative at the hearing prejudiced his chances of a fair hearing.  In this sense the word prejudiced was used to mean negatively affected. The arbitrator did not accept either of the employees arguments and upheld the dismissal.

The arbitrator found that:

  • The chairperson had not been prejudiced (biased) because of wanting the the MD's position for himself; and
  • The refusal to allow the employee a legal representative at the hearing did not prejudice (negatively affect) his chances of a fair hearing.

 

Employers should be sure that they not only understand the different meanings of the concept of prejudice but also train their management to avoid infringing the law in respect of these concepts. This requires intensive training of managers in the chairing of disciplinary hearings, handling of CCMA cases and the management of employees.

  • Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or [email protected]
  • Our appreciation to Ivan and The Star newspaper for permission to publish this article…

 

Subscribe to our free newsletter

* indicates required
 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Upcoming Courses

 

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management (Legal Liability) 

28 July 2022 (08:30 - 16:00)

Interactive Online Course

29 July 2022 (08:30 – 16:00)

Emperors Palace: Convention Centre 

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

29 July 2022 (08:30 - 12:30)

Interactive Online Course 

 

August

New Code of Good Practice: Harassment in the Workplace New Course

04 August 2022 (09:00 - 12:00)

Interactive Online Course

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

12 August 2022 (09:00 - 15:30)

Cape Town: Protea Hotel Tyger Valley

The formulation of disciplinary charges Online Course

12 August 2022 (09:00 - 12:00)

Interactive Online Course

Chairing Disciplinary Hearings

18 & 19 August 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 August 2022 (08:30 - 16:00)

Interactive Online Course

Shop Steward Training

19 August 2022 (09:00 - 16:00)

Interactive Online Course 

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

25 August 2022 (09:00 - 13:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

26 August 2022 (08:30 - 16:00)

Interactive Online Course

 

September

Retrenchments Simplified

02 September 2022 (09:00 - 12:00)

Interactive Online Course

Introduction to Mediation New Course

08 September 2022 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

09 September 2022 (09:00 - 16:00)

Cape Town: Protea Hotel Tyger Valley

Negotiation Skills New Course

22 September 2022 (08:30 - 16:00)

Interactive Online Course

 

Our Clients