According to conventional wisdom a disciplinary hearing should be conducted like a criminal trial, with a complainant, witnesses, cross-examination and all the other formalities normally associated with such a trial. Failure to do so is subsequently procedurally unfair and could lead to a significant compensation award against the employer. The Labour Court has now indicated a different approach.
In a recent Labour Court judgment, Acting Judge Andre van Niekerk held that the CCMA cannot apply a stricter standard of procedural fairness than that provided by the Labour Relations Act ("the LRA").
The Court held that the LRA’s approach to procedural fairness is a "fundamental" departure from the almost “criminal justice” model that was developed by the old industrial court under the previous Act. It recognises that managers are not experienced judicial officers and that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures will interfere the aim of the LRA to deal with dismissal disputes expeditiously on the merits.
The court accordingly held that there is no place for formal disciplinary procedures incorporating all the characteristics of a criminal trial, including the leading of witnesses, technical and complex "charge sheets", requests for particulars, the application of the rules of evidence, legal arguments, and the like.
The Code of Good Practice: Dismissal, in Schedule 8 of the LRA, provides that the employer should:
- conduct an investigation,
- notify the employee of any allegations resulting from that investigation,
- give the employee an opportunity, within a reasonable time frame, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee,
- allow the employee an opportunity to state a case in response to the allegations.
The Code further provides that the employer should communicate the decision taken, preferably in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her right to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement. Neither the Act nor the Code obliges an employer to provide any workplace right of appeal against the decision to dismiss.
It is this standard of procedural fairness that must be applied by commissioners. They are obliged to do so in terms of Section 203 of the LRA, which requires that any person who interprets or applies the Act must take into account any relevant code of good practice.
Employers and unions may agree to apply a stricter approach to procedural fairness (based on the criminal justice model) if they wish, whether by way of a collective agreement or as an agreed term of employment. In this instance employers are obliged to apply the standards which they have agreed to or which they have established. In the public sector administrative law considerations might also require a greater degree of formality in disciplinary hearings.
Unfortunately the case does not indicate what level of formality is required. CCMA commissioners also continue to adopt widely varying approaches to the issue of procedural fairness. So where does this leave the lay person?
While Judge van Niekerk’s approach is a welcome development, we would nevertheless advise for the time being that employers should continue to conduct disciplinary hearings in the manner that they have established. A disciplinary hearing should, as far reasonably possible, be chaired by an independent chairperson from within the organisation. Although a disciplinary hearing does not have to be conducted like a criminal trial, there should be a structured approach, including the opportunity for the employee to state his or her case and cross-examine his or her accusers. This will help to minimise any perception of bias, and contribute to an orderly hearing where the employee is given a proper opportunity to state his or her case. Where Judge van Niekerk’s approach will probably benefit employers most is in those arbitrations where allegations of procedural unfairness are made on the basis of mere technicalities.
Written by Jan Truter and Barney Jordaan for 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 firstname.lastname@example.org.