How stringent is the requirement for a procedurally fair misconduct dismissal?
Avril Elizabeth Home for the Mentally Handicapped vs CCMA and others-(2006).
Many of us operating in the HR space have learned the finer detail of our profession from our predecessors or management inside our respective organizations. However, I have also come to realise over many years that the generational transfer of knowledge is not always correct and often lead to the incorrect application of laws in the workplace. One of these matters that so often transfers throughout the generation within a organization is the stringent requirement (or lack thereof) of a fair procedure when it comes to misconduct dismissal. This is now in terms of Schedule 8 (4) of the LRA.
How stringent should the typical disciplinary enquiry be before a potential dismissal may be considered fair? Many of us (myself included) have been the subject of many hours of labour experts teaching us the ‘criminal’ model of disciplinary hearings, i.e., the opening statement, evidence in chief, cross examination of witnesses, re-examination, mitigation, aggravation and closing arguments. I do admit that I am guilty of training my clients the exact same process. However, is this stringent form of holding a disciplinary hearing really what is required by our law or courts?
Schedule 8 (4) in the Code of Good Practice: Dismissals establishes the fair procedure to adopt in dismissal proceedings relating to misconduct. In Avril Elizabeth Home for the Mentally Handicapped vs CCMA and Others-2006, the Labour Court held a significant departure from the ‘criminal justice model’ that was developed and applied under the 1956 LRA, which likened a workplace disciplinary enquiry to a criminal trial. Even so, one often still find the Commissioners at the CCMA or Bargaining Council to adopt similar models, however it is important to realise that these are for procedure only and bears little value to either parties.
Van Niekerk AJ found that the rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. With reference to the explanatory memorandum that accompanied the draft Labour Relations Bill, the court held:
‘there is no place for formal disciplinary procedures that incorporate all of the items 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. '
With reference to article 4 of the ILO Convention 158 on the Termination of Employment and its interpretation by the ILO’s Committee of Experts, the court held:
‘When the code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before decision is taken to dismiss.’
In terms of how the courts considered procedural fairness, a fair procedure may be narrowed to the following extend: 1.) provided that the employee was entitled to respond to the allegations made against him and that the employer took a decision and communicated it to the employee; 2.) it is permissible for witnesses not to be called and for the employee instead to be provided with the complaint in writing and invited to respond thereto, but the employee must be advised of this at the outset and afforded an opportunity of obtaining representation; 3.) reliance on hearsay evidence may be permissible. 4.) where the misconduct of the employee is common cause, an invitation to the employee to make written representations will be sufficient. 5.) it is permissible for an employer not to follow a two-stage inquiry (guilt and sanction) and to deal with the merits and mitigation at once.
However, in a number of cases, the courts have found that the Commissioner applied too high of a standard: 1.) a finding that the employee was unaware of the charges against him, even though not formally charged, the employee was interviewed regarding the complaint against him; 2.) a finding that the employer acted procedurally unfair because the charges was on the day changed to ‘Gross’; 3.) a finding that the perception of bias arose by virtue of the fact that the chairperson was a subordinate of the initiator. 4.) a finding that the chairperson did not conduct the enquiry with sufficient detachment merely because he frequently intervened and descended ‘into the arena’.
It is worth noting that in Moropane vs Gilbeys distillers and Vintners (Pty) Ltd -1997, the Labour Court held:
“the guidelines in the Code of Good Practice: Dismissals do not give rise to rights. Only when their exercise or non-exercise leads to an unfair dismissal are, they recognized and can the results of a failure to abide by them be remedied.”
In BIFAWU & another vs Mutual and Federal Insurance Company Ltd -2006, the Labour Appeal Court held:
“Deviations from the provisions of the Code will not give rise to a finding of procedural unfairness where this causes no prejudice and where, judged holistically, the employee was afforded a fair disciplinary enquiry.”
It is also noteworthy that many small and medium size companies, do not have the resources to make use of expensive consultants and attorneys and that they do not necessarily posses the skill or knowledge to embark on overly complicated dismissal procedures. As such, the audi alteram partem rule (opportunity to be heard) merely requires a fair opportunity to defend allegations that was brought against an employee, that the employee had an opportunity to be represented, to an interpreter and that the procedure adopted was exercised consistently and fairly to both parties.
It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Senior Labour Relations Specialist for Ulwazi Labour Relations and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512 or visit:www.ihconsult.co.za/labour/