Formal Disciplinary Hearings - Why?

Why do organisations still conduct formal disciplinary hearings? It is not a statutory requirement, yet it is still generally regarded as a necessity by employers and employees alike. Well, it depends on whom you ask....

Introduction

An article written by esteemed colleague Johann Scheepers ("The Deformalisation of Disciplinary Proceedings - Demise Of The Criminal Justice Model”) recently came up on LinkedIn again and provides an informative analysis of the historical development of disciplinary procedures in South African Labour Law. (I will be referring to extracts from this article as a basis for my discussion below, with thanks.)

Whilst formal disciplinary hearings had been insisted upon by the old Industrial Court in order to demonstrate procedural fairness under the 1956 Labour Relations Act, it is fairly clear at this point that the current Labour Relations Act (“LRA”) does not require such stringent procedures. Many legal voices, including the Labour Courts, have increasingly been calling on business and labour to move away from the ‘criminal justice model’ as it pertains to internal disciplinary proceedings.

Why then, is there still a thriving market (or ‘cottage industry’ as referred to by Scheepers) for everything related to formal disciplinary hearings? Extended training courses for initiators and chairpersons are offered in abundance and the services of independent chairpersons for internal hearings are in high demand.

In my view, it depends on whom you ask - and the various considerations (other than purely legal) that are part of the reality of conducting business in South Africa today.

?What are the legal requirements for a fair misconduct dismissal?

The dismissal must be both substantively and procedurally fair – these two requirements are independent from each other and must be independently satisfied.

When debating the need for a formal disciplinary process, most people taking part in the debate however only focus on item 4 of Schedule 8 of the LRA and the procedural requirements as summarised in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others [2006] 9 BLLR 833 (LC), i.e:

• an investigation must be conducted by the employer into any alleged misconduct;
• an employee against whom an allegation of misconduct is made must be given an opportunity to respond thereto;
• a reasonable period to respond should be allowed;
• the employee is entitled to be represented by a fellow employee or trade union representative;
• a decision by the employer;
• notice of that decision must be given to the employee.

I submit that this is not the only relevant consideration – but more about that later.

In the absence of any legally prescribed formal steps (subject to item 4), the arguments in support of moving away from formal disciplinary hearings have included the following:

1. That a high standard of procedural fairness which are lengthy, expensive, and ‘worthy of a criminal court’ is completely unnecessary and is not required by law, either by statute or legal precedent; and it only results in a costly duplication of process, with no tangible benefit to either employer or employee. (Scheepers, supra)
2. That a high standard of procedural fairness is not required at the pre-dismissal stage because employees are assured of a fair and formal hearing later – this was according to the court in Semenya SC & others v CCMA & others (2006) 27 ILJ 1627 (LAC), and referenced by Grogan on the basis that the employee will in any event find ‘true justice’ in the CCMA or Bargaining Council.
3. According to Avril Elizabeth (supra): That for employees, “...true justice lies in the right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting”; and that for employers, the right to expeditious and independent arbitration was aimed at promoting rational decision-making about workplace discipline; and that the elaborate procedural requirements were inefficient and inappropriate – that merely an opportunity for ‘dialogue and reflection’ is required in Schedule 8; and if the dismissal for misconduct was disputed, arbitration was the primary forum for the determination of the dispute by application of a more formal process.
4. That the LRA strikes a balance between the rights of employers and employees in that it recognises that managers are not experienced judicial officers and that workplace efficiencies should not be unduly impeded by strict and onerous procedural requirements. (Prof Le Roux in Current Labour Law 2007)
5. An increasing number of court judgements in recent times have also focused on different procedural aspects to emphasise the difference between disciplinary hearings and criminal proceedings (or the previously required criminal justice model), for example - 

• the formulation of disciplinary charges;
• competent verdicts (EOH ABANTU (Pty) Ltd v CCMA and Others [2019] ZALAC 57);
• the requirement that procedural deviations must have actually prejudiced the employee to be unfair.

See Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148; Woolworths (Pty) Ltd v CCMA and others (2011) 32 ILJ 2455 (LAC);  Dell v Seton (Pty) Ltd and Others (JR164/06) [2008] ZALC 98; [2009] 2 BLLR 122 (LC); and Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114.

Why then has the change to less formalised disciplinary proceedings been so slow?

There have been many opinions expressed to answer this question. Scheepers (supra) in his article concluded that because the LRA sets procedural fairness as an independent requirement of a fair dismissal, employers are obliged to demonstrate such fairness. He said that the fact that arbitrations are hearings de novo does not relieve arbitrators of their duty to consider procedural fairness – “it merely casts arbitrators in the dual and rather an ambiguous role of trial and reviewing court's role into one” – as the Act casts the duty to dismiss employees fairly on employers, not on Commissioners.

It is a valid point, especially since Arbitrators have by large continued to follow the requirements as set out in Mahlangu v CIM Deltak, Gallant v CIM Deltak (1986) 7 ILJ 357 as legal precedent, despite subsequent judgements indicating that under the new LRA, pre-dismissal proceedings should not be assessed too vigorously. (See Nitrophoska (Pty) Ltd v CCMA & Others [2011] 8 BLLR 765 (LC)). Employers were/are still being punished for slight deviations from disciplinary policies, even if there had been no prejudice to the employee.

Not surprisingly, employers and unions therefore also continued along this path - employers not redrafting their disciplinary policies in accordance with the new LRA and unions continuing to challenge the fairness of disciplinary procedures on the basis of the old policies and the old dispensation.

Because .......  the reality of the actual stakeholders has been different from the philosophical or even the legal one. Which brings me to my own observations in respect of this issue.

The reality and the role players

Managers and business owners mostly rely on the Human Resources department/consultant to know and apply all things relating to staff management, including discipline. If they do not have an HR resource, they probably also do not have the time to study legal developments and most likely just carry on doing what they have always done when it gets to discipline. Lawyers and consultants cost money and ‘templates’ from a previous company, a friend or from the internet, are firm favourites.

HR practitioners are generally not lawyers or ER-specialists who would independently examine the legal effect of changes in legislation and study case law on the subject. Even if they might be so inclined –

• they probably inherited a policy manual with a detailed disciplinary code and procedure, forms and processes that had become entrenched in the workplace;
• they had been told by their seniors/mentors that “this is how discipline works” and that they should have every step written down and checklists for everything so that the line managers do not step out of line and make procedural mistakes that might count against the company later;
• they are constantly challenged by union representatives and employees on procedural issues, because it is easier to fight a case on clear-cut procedures than to argue the merits;
• their experiences at the CCMA / Bargaining Council do not correspond with what they read in case law or what their lawyers tell them – even if they make those legal arguments, chances are that these will be rejected by the arbitrator;
• they are held responsible if cases are lost at the CCMA/BC and the company cannot afford to take every second case on review to prove that the arbitrator was wrong and did not follow legal precedent - so they’d rather do too much than too little;
• if dismissed employees are reinstated, HR has to manage the blow-back – the ire from the CEO for losing the case; and the fact that the ‘win’ for the employee encourages more challenges and more referrals, whether an employee has a case or not.

Union representatives generally have to learn on the job when it gets to disciplinary issues -

• they follow the examples of their predecessors, because this is what they know;
• they get stuck on procedural issues, because it is easier to understand and argue about the contents of a document than to prove a defence on the merits;
• it can be a useful strategy to make the case about procedure if you want to distract people from the merits.

Employees (generally) fight to keep their jobs. They want to use every possible aspect, process and protocol to prevent being dismissed (rightly or wrongly). The longer the disciplinary hearing takes, the longer they know they’ll get paid.

The bigger argument

The root of the issue, in my opinion, is that the philosophy on which the new dispensation is premised, is somewhat idealistic. If the argument were only about procedure, for the sake of procedure, fair enough. But it is so much more than that.

True, the principle of having an external dispute resolution forum does encourage rational decision-making about workplace discipline – mostly. (I have indeed come across some employers who are utterly indifferent towards any semblance of fair treatment towards their staff). However, one cannot generalise and assuming that an employer is trying to treat its employees fairly but also has business risks to manage, it becomes much easier to understand why formal disciplinary hearings are still very much alive.

It has not been my experience that employers regard the CCMA/BC as a place where they would happily go to for a wise and benevolent commissioner to properly examine all the facts of the alleged transgression (for the first time, after the fact) and then to advise whether the employer should take back an employee it has already dismissed. Arbitration is an adversarial process, where you win or lose, and it takes time and resources. It is not, in fact, regarded as an employer-benefit that the CCMA/BC is said to take on formal hearings in the employer’s stead (as the primary forum for determining the dispute) so that they can focus on their operations and be spared from having to obtain expertise in such matters.

It has also not been my experience that only employees who truly believe that they had been unfairly dismissed, would refer a dispute to the CCMA in order to receive ‘true justice’.

Unless the presumption really is that an employer would not end up at the CCMA/BC unless it had treated the dismissed employee unfairly, the reality for most employers is that they would rather find out beforehand if there are sufficient substantive reasons to dismiss an employee for misconduct – and if not, to deal with that appropriately in a way that would be conducive to its employment relations and other risk considerations. The problem is that in the majority of disciplinary investigations where dismissal is contemplated, there are always factual disputes – so how are those adequately resolved through mere ‘reflection and dialogue’?

It is simply not a premise based in reality to believe that employers will take a tentative decision to dismiss based on superficial information, and risk reinstatement due to a lack of evidence once the case gets to arbitration. Employers want to know with reasonable certainty if they are taking a decision that is defensible. Perhaps some would advise them to then simply make sure that they settle at conciliation (which would delight commissioners no end) – but is that fair to the employer? If an employer is known to ‘settle’, employees will believe that they can make their price and referrals will escalate. Must the employer simply accept this as a further “cost of doing business” to budget for, even when it has done nothing wrong and the employee is actually at fault?

The part I do agree with, is the unnecessary duplication when a complicated disciplinary hearing has to be repeated at arbitration. It happens far too often. It is my view that there is a much bigger place for the Inquiry by Arbitrator (s188A of the LRA) – a process that many employers are not even aware of. It makes absolute sense to utilise a procedure like that, for all the reasons I have mentioned. Whether the current dispute resolution infrastructure is sufficiently geared to do this at scale, is however a separate issue. 

Conclusion

The Employment Relations landscape in South Africa is in my opinion not conducive to the legal ideology in the LRA as it relates to procedures around misconduct dismissals. Procedural fairness cannot be compartmentalised and conceptualised as a theorem without considering some very real workplace issues and the interests of the various role players.     

For now, I shall remain available to chair disciplinary hearings.

? Judith Griessel

November 2019

Judith Griessel is a legal consultant specialising in labour law and a director of Griessel Consulting (Pty) Ltd.

https://www.helpingyouwork.com; https://www.helpingyouknow.com