MAY AN EMPLOYER SUBSTITUTE A WARNING WITH SUMMARY DISMISSAL?

In disciplinary proceedings, the employer is usually bound by its disciplinary procedure. If the procedure provides that a disciplinary chairperson provides a recommendation, it is up to the employer to either accept the recommendation and impose the recommended sanction or to impose a heavier or lighter sanction. Once the employer, or a person duly authorized by the employer, institutes a sanction, the employer is bound thereto, except if special circumstances warrant a departure.

In Central University of Technology v Kholoane & others (2017) 38 ILJ 167 (LC), the employee was found guilty of dishonesty and a final written warning valid for six months was recommended by the disciplinary chairperson. The recommendation was accepted by management of CUT. However, a few weeks later the manager changed his decision and informed the employee that he was to be dismissed with immediate effect. In unfair dismissal proceedings, the CCMA commissioner found that the employee’s dismissal was both substantively and procedurally unfair. CUT sought to review the award in the Labour Court. The court found that a provision in a disciplinary code that allows senior management to make changes to sanctions cannot be understood to give an unfettered discretion to management, but must be understood to be a tool to correct a sanction in circumstances where the sanction imposed by the disciplinary chairperson is wholly or shockingly inappropriate. In the court’s opinion, it was highly unlikely that a sanction that was listed as an alternative to dismissal could be viewed as inappropriate. There had, therefore, been no basis in fact and in law for the changes to the sanction imposed by the disciplinary chairperson. The court accordingly dismissed the review application with costs.

However, as the Constitutional Court in SARS v CCMA & others (2017) 38 ILJ 97 (CC) has now shown, a lighter sanction such as a warning, imposed by a disciplinary chairperson, may be substituted with dismissal if the misconduct is of such severity that dismissal is warranted. In the SARS case, the employee was upset after an argument with his supervisor and remarked “I cannot understand how kaffirs think”. The chairperson imposed a final written warning valid for six months, suspension without pay for ten days and counselling. Top management of SARS later substituted the sanction with a dismissal. The Concourt found that the employee’s misconduct was so serious, egregious and offensive as to warrant dismissal. The only consolation for the employee was the fact that the Concourt awarded him six months’ pay because of the failure by SARS to follow a fair procedure in failing to dismiss him and that each party had to pay their own legal costs.

Conclusion

It is suggested that the following procedure should be followed by employers when embarking on disciplinary hearings:

1.         Appoint an external chairperson who is independent of the employer, to conduct a disciplinary hearing;

2.         The chairperson should follow a two-stage approach in the hearing: first establish whether the employee is guilty of the alleged misconduct or not;

3.         Once the chairperson has established that the employee is guilty, he/she should illicit aggravating factors from the initiator and mitigating factors from the employee;

4.         The chairperson should then make a recommendation to the employer as to the appropriate sanction to be implemented;

5.         The employer should then consider the chairperson’s report and decide whether or not to implement the sanction which has been recommended. If the recommended sanction is too harsh, considering the misconduct, it would be prudent for the employer to be fair and to impose a less severe sanction. If, however, the misconduct is particularly serious, such as blatant racism, theft or sexual assault, the employer would be within its rights to increase the sanction to dismissal.

Rudolf Kuhn-  labour law attorney, Pretoria, August 2017

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