Can the sanction imposed at a disciplinary hearing be increased by management?

[Friday, October 23, 2009 17:27:30]

Can the sanction imposed at a disciplinary hearing be increased by management?

This is a question which sometimes causes a conundrum for management in the workplace. It is trite law that disciplinary hearings must be fair to the employee. The Labour Court has also ruled that an employer is bound by its own disciplinary code. The purpose of entrusting a disciplinary hearing to a neutral chairperson, is to allow the chairperson to be fully neutral and independent of management’s influence. Management is therefore bound by the decision of the chairperson.

When the disciplinary code provides that a sanction may be increased on appeal, the employee must however be warned of this possibility. This principle was confirmed by the Labour Court in Rennies Distribution Services (Pty) Ltd v Bierman NO & others (2008) 29 ILJ 3021 (LC).

Care should always be taken by employers that their disciplinary code provides for an increase in the sanction and that the employee is given an opportunity to withdraw the appeal if he is at risk of being dismissed on appeal. However, if the Code does not provide for an increase in the sanction the employer must abide by the sanction imposed at the hearing.

Rudi Kuhn

Labour law attorney, Pretoria 


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