Disciplinary action needs to happen as quickly as possible

Should you decide to institute disciplinary action against one of your employees, the time it takes for you to conclude the proceedings needs to be as short as possible. If it is not, you risk facing court cases in relation to this. The case of Stokwe v Member of the Executive Council: Department of education, Eastern Cape and Others CCT 33/18 February 7 2019 illustrates this point.

On July 22 2010 the employee was charged with four counts of misconduct by the Eastern Cape Department of Education (Department) for awarding a service contract to her spouse’s company without the required approval and consent of her employer. The service contract was awarded to her spouse’s company in accordance with the required procedure. However, she did not receive permission from the Head of Department to make the award.

The disciplinary hearing was scheduled for August 12 2010 but only happened on March 30 2011. On June 22 2011, the Department informed the employee that she had been found guilty of two of the four charges brought against her and that she would be dismissed.

She appealed in terms of section 8(4) of the Employment of Educators Act (EEA) which provides that a sanction may not be implemented pending the outcome of an appeal. Eventually she was advised that her appeal was unsuccessful, on February 14 2014, and she was dismissed. On August 4 2014, an arbitrator found the dismissal was substantively fair as her misconduct seriously and negatively impacted on the trust relationship between the employee and employer. The arbitrator’s award did not deal with the procedural fairness.

The employee approached the Labour Court to have the award reviewed and set aside. The Labour Court upheld the award. The Court refused leave to appeal. The application for leave to appeal in the Labour Appeal Court was also not successful.

On petition to the Constitutional Court, the employee submitted that the delay was an unexplained and unjustified departure from the Department’s internal disciplinary procedure. The Court held that the arbitrator was reasonable in finding that the employee’s dismissal was substantively fair. The court did find it necessary to determine if the dismissal was procedurally fair.

The Court held that both the EEA and the Labour Relations Act (LRA) provide that discipline should be prompt and fair, and that the disciplinary proceedings must be concluded in the shortest possible timeframe. The Court held that if an employee is retained for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down.

The Court therefore held that the delay did indeed render the employee’s dismissal procedurally unfair and that the matter must be remitted to the Labour Court as a specialist court for an appropriate remedy for the procedural unfairness to be determined, by that Court.

Jonathan Goldberg is CEO of Global Business Solutions.

In this weekly column, labour lawyer Jonathan Goldberg looks at various aspects of labour law. Readers can e-mail questions to news@dispatch.co.za.