WHAT ARE THE KEY PROCEDURAL REQUIREMENTS FOR A FAIR DISCIPLINARY ENQUIRY?[Monday, October 14, 2013 11:01:26]
Section 185(a) of the Labour Relations Act, 66 of 1995 (as amended) (“the LRA”) provides that every employee has the right not to be unfairly dismissed. Item 4 of Schedule 8 of the LRA states the following regarding procedural fairness:
(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. …
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
[own emphasis added]
The wording used in Schedule 8, can lead to confusion, especially if a manager of an employer is attempting to comply with the law in dismissing an employee without the assistance of a labour law expert. The term “investigation” is used interchangeably in Schedule 8 with “enquiry”, whereas the two terms denote quite separate processes. An investigation normally precedes an enquiry, and is similar to a criminal investigation. The difference is that in an internal disciplinary process, the employer is not acting on behalf of the State [such as the SAPS who investigate the commission of a crime and then hand the docket to the public prosecutor], but rather, it seeks to protect the operational efficiency and of its business and to instil discipline in its workforce.
In the disciplinary context, a manager or owner of a business will investigate an allegation of misconduct by interviewing witnesses, by viewing video footage or by perusing documentary evidence. Once the decision maker [who is often a manager, supervisor or the human resources manager], has considered the evidence, he/she will decide whether the alleged misconduct is of such serious nature that the employee ought to be dismissed. At this juncture, a decision is then taken to hold a disciplinary enquiry [also referred to as a “disciplinary hearing”] and whether it is necessary to suspend the employee [on full pay], pending the finalization of the enquiry/hearing.
Although it is not necessary in terms of Schedule 8, for the enquiry/hearing to be a formal process, it is suggested that a formal disciplinary enquiry/hearing be held because of the following reasons:
- A notification and charge sheet usually informs the employee of the date, time and venue of the hearing and also of the allegations/charges against him;
- The allegations need to be adequately formulated with respect to what the alleged incident is, when and where it occurred and who was involved;
- The employer should provide sufficient information to the employee to enable him/her to understand the details of the charges and to properly prepare his/her response/defence to the charges;
- Once the employee pleads guilty or is found guilty by the chairperson of the enquiry/hearing, the employee should have a proper opportunity to present evidence or argument in mitigation of sanction. This will enable the chairperson [and ultimately the employer] to apply his/her mind as to whether dismissal is warranted.
The Labour Court, in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC) emphasised that an employer need not be formalistic when embarking on a pre-dismissal procedure. However, employers should note that the Avril Elizabeth case is not authority for dispensing with a disciplinary enquiry altogether. In JDG Trading (Pty)Ltd v Brunsdon (2000) 21 ILJ 501 (LAC), the Labour Appeal Court found that an employer must afford an employee notice that it intends dismissing the employee, before dismissing the employee. In Choene v Mitsui & Co Southern Africa (Pty) Ltd (2012) 33 ILJ 2872 (LC), the Labour Court [in an automatically unfair dismissal case] awarded the employee four months’ salary due to lack of proper pre-dismissal procedures having been followed, in spite of the Court’s finding that dismissal was warranted.
An employer should be aware of the minimum procedural requirements for a fair disciplinary enquiry. It is vital to understand and apply these requirements before deciding to dismiss an employee, even if the employer is sure that there are grounds for dismissal.
Rudi Kuhn- labour law attorney, Pretoria, October 2013