HOW FORMAL SHOULD DISCIPLINARY HEARINGS BE?[Tuesday, March 10, 2020 12:23:59]
Employers often mistakenly assume that disciplinary hearings need to be in the form of a formal court-like procedure in order to be ‘legal’. This is not the case. Item 4 of Schedule 8 of the Labour Relations Act, 1995 (the Code of Good Practice: Dismissal), requires an employer to conduct an investigation to determine whether there are grounds for dismissal. Such enquiry need not be a formal enquiry. The employer should simply be timeously notified of the allegations in a form that the employee can reasonably understand and should be allowed a proper opportunity prepare and to state his/her response to the allegations. Thereafter the employee should preferably be furnished with written notification of the decision. Although the legislator, in enacting Schedule 8, has regrettably used confusing language by conflating an investigation with an enquiry, the essence of the rule is this: South African labour law does not require a formal court like process in order to ensure procedural fairness. This view was confirmed in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 1644 (LC), where Van Niekerk J said (on p 1651 of the judgment) that the LRA’s approach ‘represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court… . The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness.
Although formal disciplinary hearings are not legally required, most employers who are alive to the requirements of substantive and procedural fairness required by the LRA, have maintained a formal disciplinary hearing model, which is akin to a criminal trial. The court acknowledged this (on p 1654) by stating (on p 1654): ‘This is not to say that employers and unions cannot agree to retain the criminal justice model if they are so inclined, whether by way of a collective agreement… or by way of a contract of employment or employment policies and practices. In this instance, employers are obviously bound to apply the standards to which they have agreed or that they have established.’
Procedural Fairness versus Substantive Fairness
Procedural fairness refers to the way in which a disciplinary hearing is conducted. A hearing should be preceded by an investigation into complaints of misconduct to determine whether there are sufficient grounds to conclude that misconduct was committed and if so whether such misconduct warrants dismissal, in which case a disciplinary hearing ought to be conducted. Substantive fairness refers to the merits of the case, i.e. whether a workplace rule exists, whether there is sufficient evidence that the employee has contravened the workplace rule and whether dismissal is an appropriate sanction.
How precise must the charge sheet be?
The charge sheet should be sufficiently accurate to inform the accused of the alleged misconduct committed and the date, time, place and the nature of the workplace rule that was breached. However, the Labour Appeal Court recently set aside a court’s finding in SAPS v Magwaxaza & others (2020) 41 ILJ 408 (LAC). The employee killed another person and was charged for murder at a disciplinary hearing, found guilty and dismissed. The arbitrator found that the employee was not guilty of murder but rather of culpable homicide and reinstated the employee. On review, the Labour Court agreed. The LAC found that both the arbitrator and the Labour Court had adopted an unduly formalistic approach and had made the cardinal mistake of wrongly focusing the enquiry on whether it had been proved that the employee had murdered the deceased, as if it was a criminal trial. The true enquiry had to be about determining, in a manner which was not unduly formalistic, whether the employee’s dismissal was fair, taking into account the allegations made against the employee and the standard of conduct required of him.
Employers should opt for a more formal disciplinary process which would contain at least the following: 1. An investigation to establish whether misconduct committed and whether such conduct justifies dismissal; 2. The drafting of a proper charge sheet which sets out the alleged misconduct in sufficient detail to inform the employee of the charge; 3. The conducting of a disciplinary hearing which is chaired by a third party who specializes in labour law and who is not biased in favour of either the employee or the employer. By allowing a labour law practitioner to conduct the hearing, the employer will ensure that any dismissal is substantively and procedurally fair, thereby minimizing the risk of an adverse finding, should the dismissed employee refer a dismissal dispute to the CCMA.
Rudolf Kuhn- labour law attorney, Pretoria, March 2020