Discipline and Dismissal

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Fair procedure

Nicolene Erasmus

 

Introduction

Section 188 of the LRA provides that, to be fair, a dismissal that is not automatically unfair must be for a fair reason and in accordance with a fair procedure.

 

The employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. 

 

The right to be informed of the charges

Charges must be clear

 

Employers should advise accused employees in advance of the precise charge or charges they are required to answer. This requirement flows from the need for adequate preparation. The charge should be formulated in precise and simple terms.

 

In Le Roux and GWK Ltd (2004) 25 ILJ 1366 (BCA) the employee, Le Roux was found guilty on a charge of a breakdown of the trust relationship and dismissed. The arbitrator held that “the nature of the charge that Le Roux had to meet was vague and confusing. The breakdown of the relationship is a consequence of an aberrant act on the part of the employee and is not a discrete offence for which an employee can be disciplined.

 

Where information should be provided to make the charge comprehensible, it should also be provided[1].  However, charges need not be drawn up in the detail required for indictments in criminal proceedings.  The commissioner in Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO found that the dismissal of a clerk for fraudulently claiming pay for hours he had not worked was procedurally unfair because the employer had failed to specify all the fraudulent entries in the charge sheet. The court accepted that the charge sheet did not detail each fraudulent entry, but held that employers are not required to draft charge sheets that meet the standards of criminal indictments. In any case, the employee had clearly understood the nature and import of the charges he was required to answer, which were made still clearer in the later de novo arbitration proceedings. The award was set aside. On appeal the Court held that “I do not think that, viewing the issue holistically, the third respondent did not receive a fair hearing. Of course, the procedure was not without some flaws but these to me were not so gross and of the nature as to justify the vitiation of the process. Granted, the charges as reflected in the notice of enquiry did not specify with any degree of certainty what it was that the third respondent was alleged to have done which supported the charges preferred against him. According to Binks, the charges were explained to the third respondent at the disciplinary hearing. In any event, it did appear from the nature of his defence and evidence which he adduced that the third respondent fully understood the import of the charges against him and conducted his defence thereto reasonably well. This position was further better demonstrated during the arbitration proceedings, which was a hearing de novo of the dispute. Indeed, it could not be expected of a company official who was not legally trained to have drafted and formulated a charge-sheet as, for example, was seen to be done in a court of law.

 

No splitting or duplication of charges

 

It is unfair that an employee be charged with two or more separate forms of misconduct in circumstances where the conduct only constitutes one offense. 

 

Where a single incident has different factual components that comprise different offenses and have distinguishable consequences, it is not a splitting (or duplication) of charges.

 

The criminal courts make use of two tests to determine whether there has been an improper splitting of charges. The first test is the “single intent” or “continuous transaction” test, the second one is the “same evidence” or “dominant intent” test.  The latter is related to the intention of the accused person as he/she performs several acts which are logically and intrinsically connected to the one offence which he/she then commits.  If the totality of the accused’s conduct can be accommodated in one single charge, the accused may not be found guilty of multiple charges. 

 

In Ntshangane v Speciality Metals CC [1998] 3 BLLR 305 (LC), on 23 December and 2 and 3 January the employee stayed away from work without permission.  He was also late for work on 24 December.  When he eventually reported for duty he tendered an explanation which was later found to be false. On 7 January the employee was handed a charge-sheet detailing the following charges:

 

  1. Late for work without good reason/permission.
  2. Absent from work without good reason/permission.
  3. Breach of employee's duty of good faith to the company.

 

On charge one the applicant was given a written warning valid for 6 months. On charge two he was given a final warning which was valid for 12 months. On charge three he was dismissed. Charge three was based on the employee’s false explanation of his whereabouts on 23 December 1996 and 2 and 3 January.

 

The employee referred the matter to the CCMA and was reinstated.  The commissioner held that:

 

“It is clear from the above that not only was the fact that the explanation given by the employee used to make the findings on count one and two but these apparent lies were used to build the case that there had been a breach of the employer’s good faith. No attempt can be made to effect a comprehensive statement of all the implications following from this general duty as they may vary from case to case. Apart from the fact that employee told lies and his absence had cause (sic) some inconvenience and embarrassment there was not evidence in what manner the position of trust was damages”.

 

In an application to make the award an order of court, the Labour Court held as follows: 

 

“If applicant had a good and acceptable explanation for his lateness and absenteeism it would have been unfair to dismiss him under those circumstances. The fact that applicant had no good or acceptable reason for being late and absent made it proper for him to be charged. In charging him on account of lateness and absenteeism respondent made an election. Having made this election respondent went further and used applicant’s unacceptable and false explanation to formulate a third charge.

 

In my view this was unfair. It is clear that the basis for finding applicant guilty on the first two charges was applicant’s unacceptable explanation. Using the explanation to formulate a third charge took the issue beyond the realms of fairness. The picture would be different had the respondent charged applicant with only one charge relating to breach of trust.

 

My view is that Commissioner Pandya was correct in his award when he found that the reason for applicant’s guilty finding on charges one and two was because he had no good reason. He was therefore correct in finding that there was unfair splitting of charges relating to the third charge”.

 

The hearing must not be unreasonably delayed

 

A hearing must be convened as soon as possible after the incident which led to the disciplinary action so that the facts are still fresh in the minds of the parties and their witnesses.

 

In ECCAWUSA obo JAFTA v Russells Furnishers [1998] 4 BALR 391 (CCMA) it was held that “the mere fact of a delay cannot in itself be fatal to the fairness of the employer’s actions, in the absence of any indication as to how and why that delay unfairly prejudiced an employee. In the present matter no evidence was led in respect of prejudice to the employee as a result of the delay. Hence there is no justification for finding the dismissal of the employee unfair on this basis.”

 

The right to a proper opportunity to prepare

 

This can only happen if the employee has been given adequate time to prepare and enough information in order to understand the charges against him.  What is reasonable will depend on the circumstances and the complexity of the issues. Short notice will render the dismissal unfair if an employee is materially prejudiced as a result.  An employee may ask for a postponement if more time is required to prepare a response.

 

In Miksch v Edgars Retail Trading (Pty) Ltd (1995) 16 ILJ 1575 (IC) the Industrial Court held that “it was grossly unfair of Mr Bruwer, despite the fact that applicant had consented thereto, to have suggested that the disciplinary hearing should take place virtually within a few hours after the applicant had been  informed of a magnitude of serious charges against her. He must have known that the charges might lead to her dismissal. From what I've been made to understand he also knew that she was a rather strong-willed person and that she did not hesitate to stand up for her views and even clashed at times with her superiors when they did not agree with her. It was these personality traits and resultant clashes, apparently even with Mr Bruwer himself, which caused the applicant to allege that he had a personal vendetta against her. The fact that the applicant eventually conceded her guilt and the fact that her dismissal was substantively fair is in my view altogether irrelevant when considering this aspect of the case. The end result was that she had no time for reflection, no time to prepare her case or obtain advice and she had lost out on the opportunity to be represented at the disciplinary hearing. The fact that she cooperated and was a willing participant in her own undoing is in the circumstances of minor consequence. I am therefore satisfied that the respondent had in this regard committed an unfair labour practice against the applicant.

 

The employee’s right to be heard and to present a defense

 

The purpose of disciplinary hearings is to ensure that accused employees have an opportunity to lead evidence in rebuttal of the charge, and to challenge the assertions of their accusers before an adverse decision is taken. 

 

In Semenya & others v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 1627 (LAC) the third respondent (employee) was called to a meeting with the appellants at which she was advised that her contract of employment was being cancelled. She regarded this as a dismissal and pointed out that no pre-dismissal procedure had been followed. She asked that the meeting be postponed for a week to enable her to respond to their allegations. The appellants then offered the third respondent a disciplinary hearing to be chaired by an independent person of her choice. She did not accept the offer, expressing the view that they could do as they pleased as she had already been dismissed in an unfair manner.

 

The Labour Appeal Court held that it may be possible to correct a procedural error by offering the employee a hearing later. But the facts of that case must be carefully noted. The respondent employee was informed by her employers, a group of advocates, that they had decided to terminate her contract. When the employee pointed out that she had not been afforded a hearing, her employers offered to arrange a disciplinary hearing chaired by an independent 'outsider'. The employee rejected that offer out of hand because, she said, it had come too late. She was then dismissed without a hearing.

 

The Court held further that “both the court a quo and the commissioner expressed the view that the third respondent's conduct in rejecting the appellants' offer of a disciplinary hearing was understandable because her dismissal was already a fait accompli. I do not agree. It may well be that the third respondent's dismissal may have been a foregone conclusion if the hearing that the appellants had offered her would have been chaired by one or more of them and if one or more of them would have had to make the decision whether she was guilty and, if so, whether she should be dismissed. However, it was not part of the offer that one or more of them would chair that hearing and make such decision. Indeed, the appellants' offer was that the hearing be chaired by a third party of the third respondent's choice.

 

From the above it can be inferred that it was going to be such third party as chairperson of the disciplinary hearing who would have had the power and the duty to determine whether the third respondent was guilty of misconduct and, if so, whether dismissal was the appropriate sanction. That being the case, it seems clear that the appellants would have had no power to make such decisions or that they would have been bound by the findings and decisions of the chairman of the enquiry. In a way it seems that what the appellants offered the third respondent resembled to a very significant extent a situation where two parties choose a private arbitrator. The only difference was that, if the third respondent was not happy with the findings and decision of such arbitrator, she would not have been confined to the remedy of a review as is normally the case with private arbitration. There is no doubt that she would still have been able to exercise her rights to refer an unfair dismissal dispute to an appropriate forum in terms of the Act for conciliation and, thereafter, for arbitration. In other words she was going to have the best of both worlds. First, her disciplinary hearing would have been chaired - not by her employer or employers - but by a third party of her choice and, yet, second, she would not have been bound by the decision of such third party if she did not like it.”

 

The right to be fairly judged

 

The point of a disciplinary hearing is to enable the presiding officer to weigh the evidence for and against the employee and to make an informed and considered decision. This presupposes that presiding officers must have, and keep, an open mind throughout the proceedings.

 

In NUFAWSA obo Matiti v Svencraft CC [2006] JOL 18717 (BCFMI) a claim that the chairperson was biased was considered. A reasonable apprehension of bias arises when the chairman sits in judgement over matters concerning himself or person with whom he associates; in matters in respect of which he has prior personal knowledge or experience; matters in which he has an interest in the outcome; or matters in which he has bias or an inclination in respect of the parties.

 

According to the commissioner actual bias is likely to be present when the above factors or some of them are sufficiently present.

 

The perception of the employee is important. But suspicion only will not be sufficient. Allegations of bias, in this case, must be seen in the sense of impeding justice. I find that the chairperson as the human resources manager and an employee of a company of 30 employees had an interest in the outcome. He had prior personal knowledge of the offence where he was the person who had been involved with the investigation. It is a matter of public record that Dyers's arbitration took place on 26 June 2006, and Matiti gave evidence on his behalf. This was a day before Matiti went to the wage negotiations. The employer's bundle indicated that it had sent a notice to the union on 5 July about the pending disciplinary hearing for Matiti in respect of the employee's false entry on the leave form. Where only one week previously Carsten had reprimanded the employee and indicated that a disciplinary hearing would follow, this would have been very fresh and prominent in the employee's mind that the employer intended to take disciplinary steps against him. Dyers, after all, had been dismissed for not following the leave form procedure. It mattered not that the disciplinary hearing did not take place. It matters not that the employer had no objection to him chairing the hearing. Grogan in Workplace Law (7 ed) at 177 states:

 

“…the officer presiding at a disciplinary hearing must not only be impartial in fact, but also that there should be no grounds for even suspecting that his or her decision might be shaped by extraneous factors, even if this is in fact not actually the case.”

 

I find that "a reasonable apprehension of bias" arose when Carsten chaired the hearing "over matters concerning himself or person with whom he associates". His deference to the employer's lack of objection demonstrated his bias or inclination in favour of the employer. It may be said he had an interest in the outcome. The conclusion drawn is that Carsten's actions in chairing the hearing was prejudicial to the employee, and impeded justice. I find that the employee has been able to discharge the onus to prove that the chairperson was biased. This renders the procedure to dismiss unfair.”

 

Changing the finding of the chairperson on appeal

 

Employers are not always satisfied with the decision of its chairpersons, and the question then arises whether it can change the finding of the chairperson or not.

 

When an independent chairperson did not dismiss the employee in SARS v CCMA & others [2010] 3 BLLR 332 (LC), the employer later dismissed the employee without holding another disciplinary hearing. The court found that this case is similar to similar to Country Fair Foods (Pty) Limited v Commission for Conciliation, Mediation and Arbitration & others [2003] 2 BLLR 134 (LAC). In the Country fair foods case the Labour Appeal Court  confirmed that without a provision in the employer’s Code permitting the managing director to interfere with the decision of the chairperson, such interference was unjustified.  In the SARS case, the court looked at the collective agreement regulating disciplinary hearings. In this instance, the collective agreement was silent about whether the decision of the chairperson of the disciplinary inquiry is final or not. It had no express provision that permits SARS to substitute the chairperson’s decision with its own. Instead, the collective agreement obliges SARS to implement the decision of the disciplinary chairperson. The LC found that as SARS did not reserve for itself the right to substitute the decision of the chairperson of the inquiry with its own, it was bound to implement the decision of the chairperson. However, if it disagreed with the chairperson’s decision, it could apply for review under section 158(1)(h) of the LRA.

 

On appeal[2] the following remarks were made:

 

The proper starting point for an understanding of the critical controversy is the jurisprudential character of the disciplinary enquiry chair’s decision. It is plain that the person appointed to perform that function is clothed with the persona of the employer. The chair’s decision is that of the employer. Anomalously, an employer that is an organ of state may review itself, an escape mechanism not available to employers in the private sector. But plainly, an employer that is an organ of state cannot unilaterally repudiate its own decision.”

 

If the substitution of a sanction is invalid, that invalidity vitiates the act completely; ie it cannot be made. Invalidity is more than procedural unfairness, it denotes an unlawful act; ie one the law will not acknowledge.”

 

The established law about an employer being disallowed from interfering in the outcome of a disciplinary enquiry where the chair has the power to make a final decision, which is the crucial issue in this appeal, has, as its aim, the protection of workers from arbitrary interference with discipline in a fair system of labour relations. This principle is worthy of preservation.

 

 

Double jeopardy

 

In Solidarity obo Van den Berg / Evraz Highveld Steel & Vanadium [2013] 6 BALR 584 (MEIBC) the applicant was charged twice for the same incident based upon the same set of facts and there was no striking difference in the charges. The respondent’s motive for initiating the second disciplinary enquiry was to be found in the email from human resources to the original chairperson. The respondent was facing a possible challenge at arbitration in respect of another dispute related to the breach of the email policy and sought to override the original chairperson’s decision on sanction in pursuit of a defence of “consistency”.

 

The commissioner held that the employer appoints the chairperson and should be bound by the decision of such elected office bearer, unless the employer can show the elements necessary for a holding of a second hearing. I am no ways shocked by the approach and or reasoning adopted by the original chairperson and there was no credible or reliable evidence to show me otherwise.

 

To punish an employee twice for the same offence infringes on a principle central to most legal systems: once an accused person has been tried and a court has imposed a sentence that person cannot be tried again on the same charges arising from the same facts. The respondent’s course of action was not through chasing the applicant through a second hearing, as our Labour Appeal Court has endorsed the principle that an employer dissatisfied with the sanction imposed by presiding officials may approach the Labour Court for relief.

 

Moyo / Avery Dennison SA (Pty) Ltd [2011] 4 BALR 347 (NBCCI)

 

Mr Moyo, the employee argued that he was dismissed during March 2010. No disciplinary hearing was held, and he referred an unfair dismissal dispute to the NBCCI. A settlement agreement was reached in terms of which Mr Moyo was reinstated. After reinstating Mr Moyo, the employer convened a hearing and dismissed him again.

 

Commissioner Cachalia held that “reinstatement of an employee in my view does not diminish an employer’s right to hold an enquiry and determine whether an employee is guilty of misconduct even though the employee had initially been dismissed on the basis of one of the allegations of misconduct without an enquiry. In my view, it would be unfair not to allow an employer to charge an employee for acts of misconduct allegedly committed by an employee.”

 

“Where an employer dismisses an employee without following a fair process and then reinstates the employee and holds an enquiry, it has rectified a wrong that it had previously made. One cannot state that the holding of an enquiry subsequent to reinstatement is double jeopardy. It may have been double jeopardy had the employee been found not guilty of the charges and then charged again on the same offences and dismissed. I use the word “may” because labour law is about fairness. However, I need not delve into this issue as the facts of this case are different.”

 

The employee’s dismissal was upheld.

 

 



[1] In Carolissen v City of Cape Town & others (2014) 35 ILJ 677 (LC) the manager faced a disciplinary hearing emanating from a forensic report, which the employer refused to make available.  It was held that “the very basis of the hearing that the applicant faces is the forensic report. That report does not approximate an independent legal adviser's confidential advice to the city. It is not enough to say that evidence arising from the report will be led at the hearing. It will severely hamper the applicant's preparation and thus impact on his rights to a fair hearing, should he be denied access to the report beforehand”. 

[2] SARS v CCMA & others, LAC

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