Receiving notice of a disciplinary hearing that can lead to dismissal inevitably causes tension between employer and employee. The employee nevertheless has a duty to show respect for as long as the employment relationship continues.
Disrespectful behaviour during a disciplinary hearing can have far-reaching implications for the outcome of the case. This is indeed what happened in the case of Skosana vs Fisher. The employee, a domestic worker, was suspected of theft. She was given notice to attend a disciplinary hearing. At the commencement of the hearing the employee requested to read the disciplinary charges herself.
When the document was handed to her, she started tearing it into pieces. When the employer tried to retrieve the document, she resisted and shoved the torn pieces into her mouth. According to the evidence "she then chewed the papers into a pulp” and “abandoned the enquiry in a vociferous fit of fury whilst ranting and raving". The disciplinary hearing continued in her absence and she was dismissed, not for theft, but for her behaviour during the hearing.
The employee referred the matter to the CCMA alleging that her dismissal had been unfair. During the arbitration proceedings the CCMA commissioner pointed out that although the employee had been charged for alleged theft, she had been dismissed for gross insubordination/gross insolence/damaging the employer’s property.
He highlighted the traditional distinction between insolence (repudiation by an employee of the employee's duty to show respect) and gross insubordination (refusal to obey the employer’s instructions). Both forms of misconduct amount to a repudiation of authority. The commissioner concluded that the employee had displayed gross insolence ("appalling disrespectful behaviour") during the disciplinary hearing and found that dismissal was justified on that ground..
The CCMA commissioner did not consider it necessary to elaborate on the allegations of theft. He however remarked that the allegations of theft were no more than suspicions and, had the employee participated in the disciplinary proceedings, the chairperson would in all likelihood have found her not guilty. The commissioner further expressed the view that by deciding to abandon the disciplinary hearing, the employee had "made her bed" and now "she must lie on it". She could not be afforded "two bites at the same cherry" by expecting the CCMA to hear the merits of the theft charge for the very first time.
An interesting aspect of this case is that the procedural fairness of the dismissal was not challenged by the employee. It could be argued that if the employer had intended to dismiss the employee for misbehaving during the disciplinary hearing, the employer should have issued a new notice of a disciplinary hearing and again followed due process by giving her another opportunity to state her case in respect of the charge of gross insolence. Failure to do so could be regarded as being procedurally unfair.
On the other hand, this is one of those matters where the employee, through her conduct, could be regarded as having waived her procedural rights, not only in respect of the charge of theft, but also in respect of the charge of gross insolence.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or email@example.com.