Fairness central to disciplinary action
OUR LABOUR law has a golden thread running through it – fair treatment.
Every employee, no matter what they do, is entitled to fair treatment and to be heard.
Our arbitrators from the CCMA and the Bargaining Councils, as well as our judges from the Labour Court, have outlined the essentials needed to ensure disciplinary inquiries can be said to be even handed.
The employer needs to ensure the employee is aware of the time, date and place and the nature of the allegations against them. The allegations should preferably be outlined in writing, in clear and concise language that is easy to understand. They should be worded in such a way that the employee is aware of what needs an answer. The employee should at least have two clear working days’ notice in order to prepare for the hearing.
The chairperson of the hearing must be independent and objective.
The chairperson should not have knowledge of the allegations and the situation. It is expected of the chairperson to be independent and able to assist either of the parties to get to the truth of the allegations or the defence.
Our law outlines that the employer who alleges wrongdoing must be able to show, via witnesses or other evidence, that the allegations are truthful and constitute wrongdoing.
The employee should be made aware that witnesses can be brought to the hearing and evidence should be produced. It must be explained to the employee that the company’s evidence can be challenged, and witnesses can be questioned (cross-examined).
Many employers have disciplinary codes and documents outlining the procedure. The employer is obliged to follow the outline of the document in order to ensure there can be no allegation of a breach of the procedure.
If there is no such document, the employer would look to the Labour Relations Act, in particular Schedule 8, for guidance.
The notification, hearing and conduct of the hearing should be kept simple, not bogged down by legalese.
Unfortunately, our arbitrators and judges have complicated the procedures over the past 20 years. Disciplinary hearings have becoming complicated and structured. Employees and employers have involved lawyers, labour consultants and trade union officials who have made the process burdensome and cumbersome.
Many of the hearings have taken months and even years, and invariably landed up in courts before the parties even handled the merits of the dispute.
In a well-reasoned and well-structured judgment of the Avril Elizabeth Home for the Handicapped, the Labour Court found that the law should be informal, expeditious and nothing more than a dialogue.
The judge said there should be an opportunity for both parties to be heard and there should not be a rigid disciplinary procedure.
Furthermore, the judge said disciplinary hearings could not be equated to criminal charges and should not be reflective of court proceedings. Despite the judgment, our arbitrators and judges have been testing the fairness of the procedure against criminal law.
In a recent judgement (ELH Abantu (Pty) Ltd vs CCMA), the Labour Appeal Court confirmed the sentiments of the Avril Elizabeth Home case. The judge outlined that disciplinary processes should not be formal or legalistic. The disciplinary hearing should not be run like criminal trials and it would be sufficient if the employee had been given the bare basics as outlined above.
The CCMA uses a simple formula by investigating whether there is a workplace standard and whether it has been contravened.
The question would be whether the employee knew or reasonably should have known about the standard and had breached it. It is reasonable to expect a chairperson of a disciplinary hearing to be independent and objective and to make recommendations if there is a conclusion of wrongdoing.
Disciplinary codes are guidelines and if there are minor deviations, this will not destroy the case. It would be useful to keep written minutes of the inquiry. It is the employer’s duty to ensure that the procedure is correct, fair and objective. Even if an employer does not follow procedure initially it has the right to revisit the disciplinary inquiry in order to ensure the procedure is properly implemented.
Procedure that is delayed could be deemed unfair. In an interesting Labour Court decision, an employee who was dismissed two years after the incident challenged the procedure.
The court said the gross deviation from a fair process would lead to an unfair result. Employers who delay instituting action without a reasonable explanation will suffer the consequences. To sum up, disciplinary procedure at the workplace does not have to slavishly follow the onerous structures as demanded by our criminal law. The procedure merely has to show that both sides were heard and an objective chairperson came to a reasonable recommendation after having taken into account all the evidence.