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LABOUR APPEAL COURT CONFIRMS: A DISCIPLINARY HEARING IS STILL NECESSARY, EVEN IN THE FACE OF SERIOUS

[Thursday, January 18, 2018 14:04:30]

Introduction

Employers may be forgiven for thinking that a disciplinary hearing is not required when the alleged misconduct committed by an employee is so serious or egregious that the employee would in any event be dismissed, as a result of the employee’s misconduct. One can think of a few examples of extremely outrageously serious conduct in the workplace: a disgruntled employee setting the managing director’s office on fire, the rape of a co-employee, or even causing the death of a fellow worker or client.

But is it still necessary to go through the arduous process of a disciplinary hearing, especially where dismissal seems to be a foregone conclusion? The short answer is yes. The need for disciplinary hearings are often misunderstood by managers and human resources practitioners, when they have regard to item 4(1) of Schedule 8 to the Labour Relations Act. [1] It states:

“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry.” [own emphasis added]

This item in the Act is confusing: It states that the employer should conduct an investigation. At the same time, it states that “this” [with reference to the “investigation”] need not be “formal”, while referring to the same process [i.e. the investigation] as an enquiry. In my view, these are two separate processes: The employer firstly investigates- i.e. gathers information by for example speaking to witnesses, perusing documents and viewing video footage. Once the employer establishes that misconduct has taken place, the employer decides the degree of seriousness. If the misconduct is minor, a warning is issued to the employee. If it is more serious and dismissal is warranted, then a disciplinary enquiry [also known as a disciplinary hearing] is convened.

A disciplinary hearing in some form or another, is still a requirement in terms of South African labour law. If the employer is a smaller business, then a less formal disciplinary hearing, or even a disciplinary meeting should be held. If the employer is a large corporate entity, or a state owned monolith such as Transnet or Eskom, formal disciplinary hearings [and often, with lawyers] are held. If the employer’s disciplinary code requires a formal disciplinary hearing, then the employer should follow the code.

The Labour Appeal Court [“LAC”], in SA Medical Association on behalf of Pietz v Department of Health, Gauteng & others [2]confirmed the principle that a hearing should always be held, in order to ensure fairness to the accused employee. This principle must always be followed, unless it would be impracticable, such as in the case where a violent strike or a threat of violence prevents the employer from conducting a hearing.

In the Pietz case, a medical doctor’s negligence caused the death of a baby at childbirth and the employer dispensed with a disciplinary hearing. The arbitrator found that the dismissal was substantively fair but that, although the dismissal was procedurally unfair, the substantive issues militated against the granting of compensation. The Labour Court confirmed the arbitrator’s decision on review. However, the LAC found that when an arbitrator determines whether or not to award an employee compensation for a procedurally unfair dismissal, he exercises a moral or value judgment, and factors that he must take into consideration include the nature and extent of the deviation from the procedural requirements by the employer and the nature and gravity of the misconduct of the employee. The court further found that the arbitrator was wrong in his decision not to grant compensation for procedural unfairness and by unduly emphasising aspects of substantive fairness in the exercise of his discretion whether to award compensation for procedural unfairness. Such approach was patently unjust and inequitable. The court accordingly awarded the equivalent of three months’ remuneration for the procedurally unfair dismissal.

Conclusion

The law requires the employer to conduct a disciplinary hearing- always. If an employer is unsure, it is advisable to consult a labour law expert.

 

Rudolf Kuhn-  labour law attorney, Pretoria, January 2018



[1] Schedule 8 is the Code of Good Practice for Dismissals in the workplace.

[2] (2017) 38 ILJ 2297 (LAC).


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