The Labour Relations Act does not prescribe that a disciplinary hearing must take place before an employee may be disciplined or dismissed for misconduct. Procedurally, only an “investigation” and compliance with a few other principles are required for a fair process.  Achieving substantive fairness is somewhat more complex and this should be the determining factor in deciding on the format of the disciplinary process.

Introduction

The cornerstone of South African labour law, including workplace discipline, is fairness. The Labour Relations Act requires employers to demonstrate both procedural and substantive fairness when disciplining employees for misconduct. The one without the other is not sufficient.

Procedural fairness is easy enough to understand – most employers realise by now that an employee cannot simply be dismissed or even given a warning ‘on the spot’ without some sort of process or interaction with the employee taking place first.  Substantive fairness means that there must be merit to the allegations and that there must be sufficient information to determine that the employee has indeed transgressed.

Before looking at these fairness principles in more detail, it is important to understand what constitutes misconduct.  Misconduct in the work environment is when an employee has breached a valid rule or standard, and it was his/her fault. If intention or negligence on the part of the employee in breaching the rule cannot be found, there is no blame or guilt to be assigned.

Procedural fairness

There are no prescribed procedures to follow when investigating misconduct and/or disciplining an employee. The “rules of natural justice” together with the procedural principles found in Schedule 8 of the LRA, should guide the employer towards achieving procedural fairness. It is important to note that these principles apply to formal as well as informal disciplinary processes.

1. The employee must understand the allegations against him/her -

• sufficient information regarding the allegations must be given to the employee in order for him/her to be able to respond;
• the terminology used must be understandable to the recipient;
• it should be explained in a language that he/she understands.

2. The employee must be given an opportunity to present a case in response to the allegations, including -

• reasonable time to prepare a response;
• representation / assistance by a co-worker;
• an interpreter, if required.

3.     The person taking the decision must be neutral / objective and inform the employee of the decision reached.

So when a manager has to embark on a disciplinary process, it is not a legal requirement to have a formal hearing. The steps above can be equally complied with by following an informal process, or a ‘disciplinary interview’ of sorts. Indeed, ever since the Labour Court judgement in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others [2006] ZALC 44, the courts have advocated that an internal disciplinary process should not be legalistic and should be conducted with a minimum of formalities, as opposed to the criminal justice model that had been developed prior to 1996.

The argument in Avril Elizabeth was that the external arbitration process at the CCMA (or similar) is meant to be the primary forum for determination of a disciplinary/dismissal dispute – and that this is where the more formal processes would be applied. The court observed that  there is no benefit to either the employee or the employer to duplicate the formal hearing process, even if the result is dismissal of the employee.

Now, one would wonder – if an informal decision about the employee’s guilt and dismissal would satisfy the procedural requirements of the Act, why do so many employers still insist on conducting internal hearings and spend lots of money on disciplinary training for their managers? If you think about it, it should be obvious to anyone invovled in the practical side of employment relations. The CCMA does not have the capacity to function as the ‘primary forum’ to determine misconduct disputes – as it is, commissioners are pushing for settlements whenever they can, instead of having to arbitrate. I also do not know how comfortable a prudent employer would be with dismissing an employee after an informal chat, without having had the opportunity to hear witnesses, consider evidence and test conflicting versions. Shooting from the hip and then waiting for the CCMA to properly hear the case for the first time - and ending up with a reinstatement or compensation order for a substantively unfair dismissal, is hardly good business.

So – in my view, formal internal disciplinary hearings has its place, although not so much to satisfy procedural requirements, but for the sake of substantive fairness, especially when there are numerous factual disputes.

Substantive fairness

This requires a fair evaluation of the available facts to determine whether the employee is indeed guilty of the offence, and if so, deciding on an appropriate penalty.

Schedule 8 of the Labour Relations Act stipulates a number of aspects that must be investigated and satisfied in order to determine the guilt of the employee:

1.     Existence of the rule / standard that has allegedly been breached.

• The rule / standard must be valid, lawful and reasonable;
• It should generally be justifiable with reference to the operational requirements of the employer.

2.     That the employee was aware, or could reasonably be expected to have been aware, of the rule or standard. All rules need not be written down – some rules are common knowledge; or custom and practice; or communicated at meetings and on notice boards. Some exist because of the nature of the employment relationship – which automatically requires an employee to serve the employer faithfully and honestly, and to protect the employer’s interests.

3.     The rule must be consistently applied by the employer in the workplace.

4.     The employee’s breach of the rule / standard must be proved (who, what, when, why, how, where).

5.     Once breach of the rule by the employee has been established, it would still only constitute misconduct if there was fault / blame on the part of the employee in doing so (this is a common law requirement).

• Intention – a deliberate or “don’t care” approach to breaching the rule and any possible harmful consequences;
• Negligence - if a reasonable person in the position of the employee would have foreseen possible harm being caused by his/her actions or omissions and would have taken steps to prevent such harm; but the employee in question failed to do so.

6.     After the employee has been found guilty of perpetrating misconduct, the last element of substantive fairness is to determine an appropriate and fitting disciplinary sanction from a range of warnings to dismissal.

The employer must be able to motivate and justify its decision in this regard. Too often managers slavishly follow a company disciplinary matrix without having regard to the circumstances of the particular case. Defending their decision at the CCMA by saying that they followed their Disciplinary Code, or that they “always dismiss” for a particular type of misconduct, is not going to be enough. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22 made it very clear that the arbitrator as a ‘reasonable decision maker’ has to apply its own sense of fairness in deciding whether a dismissal was fair, and that there is no obligation on said arbitrator to defer to the employer in this regard.

The key is therefore for the employer to be able to explain its decision with reference to its business and the impact of the employee’s misconduct thereon, in order to demonstrate that the sanction was appropriate. In deciding on a balanced sanction, consideration must be given to the circumstances of the offence, the circumstances of the employee as well as the interests of the employer and the other employees. Factors such as the risk of continued employment of the employee; the message sent to other employees regarding misconduct of that nature; and a lack of acknowledgement of wrongdoing / remorse on the part of the employee, are all important aspects to consider. (See De Beers Consolidated Mines (Pty) Ltd v CCMA & Others [2000] 9 BLLR 995 LAC)

The breakdown of the trust relationship is very important in relation to dismissal, but it is not something that an employer can simply declare and have it accepted as fact. The Supreme Court of Appeals in Edcon Ltd v Pillemer NO and Others [2009] ZASCA 135 made it quite clear that an employer needs to provide evidence to support such a claim - to demonstrate how the trust relationship has been destroyed by the conduct of the employee.

These are basic minimum principles as regards fair discipline in terms of statute and case law. If an employer has to comply with additional obligations in this regard in terms of its own comprehensive disciplinary code and procedure, a collective agreement or some such, then of course things may be somewhat more complicated. It would perhaps also be prudent for such an employer to review its position in this regard and return to the basics. Less can really be more.

Written by By Judith Griessel, Griessel Consulting