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DISMISSAL - MISCONDUCT: PROCEDURAL FAIRNESS

Identify the offense


1st Step – the accused person is an employee of the company

This might seem to be stating the obvious, but the first step in the investigation is to establish that the person accused of the misconduct is in fact an employee. It is necessary to establish this especially if you are an employer who employs contractors or subcontractors, who are in fact employees of other companies.


You cannot take disciplinary action against a person who is not your employee – that person’s employer must take disciplinary action. If they are not your employee, inform their employer and if it is a serious transgression, you may request the employer to remove them from your premises.


2nd Step – the complaint

The complaint must be in writing, and preferably identify the name of the person referring to the complaint.


If the complaint is made verbally, e.g., over the telephone or ethics line, or told by one employee to another, it should be investigated and confirmed in writing as soon as possible. Anonymous or verbal complaints are difficult to investigate and should be reduced to a formal written complaints as soon as possible. Although not always the case, if a person wishes to lodge a complaint against an employee, they must preferably be prepared to identify themselves, and they must be prepared to stand by their complaint and give evidence if necessary.


Some cases are sensitive and require anonymity and should preferably then be given to seasoned investigators or forensic auditors.


Ideally, the complaint must be in writing and signed by the person referring to the complaint. In most cases, the person referring the complaint will not be the initiator, but a witness. In less serious cases such as minor insubordination, the initiator will be the investigator and the initiator. For example, the manager gives the employee an instruction that is ignored. The manager will act as initiator as they have all the information and facts at hand.


Having established that the accused person is an employee, the investigator must now turn to the written complaint.


3rd Step – disciplinary action

The investigator must now determine if the complaint, on the face of it, warrants an investigation into a transgression being committed; therefore, they must establish the following:

  • Has a rule or standard been broken, or has a policy or procedure, or the employment contract been breached? and if so;

  • Was the rule or standard reasonable, lawful, and attainable?

  • Was the employer’s expectation of compliance with the breached rule or standard a fair and reasonable expectation?

  • Was the accused employee aware of the rule or standard or could they reasonably be expected to have been aware of it?

  • Did the accused employee understand the requirements of the rule or standard?

  • Has the rule or standard been consistently applied by the employer?

If the answers to the above questions are “yes”, then an incident of misconduct has been committed and an investigation must now ensue to determine the charges. Disciplinary action must be taken as soon as possible after alleged misconduct has come to the attention of the employer. If disciplinary action is unreasonably delayed, the dismissal may be found to be procedurally unfair.


What must the investigator look for?

The initiator must look for evidence that supports the allegation(s). This implies that the initiator should know what the definition or elements of the specific transgression are.


May an employer cure/rectify procedural defects after the dismissal of an employee?

A question that arises often is one; “may an employer who has through ignorance, anger or inadvertence fired an employee without a hearing make good the mistake by offering to hear the employee later?”. The Labour Appeal Court has the following answer:


To be fair a dismissal must be preceded by a hearing. But some employers manage to flout that principle through ignorance, anger, or inadvertence. How, if at all, can employers who find themselves in this situation correct their error if the dismissed employee cries foul? One solution is to relent and offer the employee immediate and unconditional reinstatement. However, that option would leave the employer with an employee who, perhaps for good reason, is no longer wanted. Another solution is to relent and offer the employee reinstatement, subject to the outcome of the hearing that should have been held in the first place. But the employee may reject that offer with the retort that it comes too late: the law requires a hearing before a dismissal; once the dismissal is effected, it is lasting and constantly stigmatised as procedurally unfair. If that argument holds, the employer who has failed to afford a dismissed employee a hearing is doomed to pay the employee compensation. The only argument then left to the employer would be that the employee was guilty of misconduct so serious that compensation should be denied or limited to an amount far short of the equivalent of 12 months’ remuneration allowed by the Labour Relations Act.


(Lesson – ALWAYS follow a fair disciplinary procedure, i.e., do not dismiss an employee without having a disciplinary hearing.)


The only other option is to acknowledge the omission and offer the employee a hearing so that the decision to dismiss can be reconsidered. Most employers, employees, arbitrators, and judges have generally thought that this option is not open to employers, because the hearing would come too late: the stable door would by then have been opened and the way cleared for action for unfair dismissal by the bolted employee. But is it so that an employer, who has omitted to afford employees hearings before deciding to dismiss them for misconduct, cannot rectify the omission by granting them a hearing?


The Labour Appeals Court has the following judgment – “It is not our law that an opportunity to be heard that is given after the relevant decision has been taken is never good enough. Although generally speaking, such an opportunity should be given before the decision can be taken, there are circumstances where an opportunity to be heard that is given after the decision has been taken is acceptable. Where the opportunity to be heard is given after the decision has been taken and it is one of those situations where it is acceptable and the person concerned spurns that offer or does not make use of it, it cannot lie in such a person’s mouth to say that they were not given an opportunity to be heard. In such a case an opportunity to be heard has been given and rejected. The Audi alteram partem rule has been complied with in such a case.”


(Audi alteram partem - Audi alteram partem is a Latin phrase meaning "listen to the other side", or "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.)


In other words, the principle that a person must be heard before an adverse decision is taken is not flexible.


What, then, are the situations in which it is acceptable to grant a hearing after the decision?


The court thinks it is inadvisable to attempt to give an exhaustive list of such situations. It is safer to describe their essence. What the court had in mind were situations “where it can be said that the opportunity to be heard is given after the decision has been taken is no less fair than the opportunity that should have been given before the decision could be taken”.


At first glance, the “test” may seem somewhat redundant. The Audi alteram partem rule is one of the principles of procedural fairness. In the classic formulation, that rule requires people to be given an opportunity to state their cases before decisions are taken that adversely affect their rights, interests, or legitimate expectations. The rule serves various functions, the most important of which is to promote rational decision-making. That function is in turn premised on the idea that a decision-maker is likely to take a more rational or considered decision if they hear both (or all) sides of the issue that arises for decisions. In judicial or “quasi-judicial” contexts, when the decision-maker must decide whether a person contravened a rule, the Audi principle is more than an aid to rational decision-making; it is indispensable.


As any judge or arbitrator will confirm, a proper decision requires ventilation of all versions from which the truth – which often falls somewhere between conflicting versions – may be extracted. A hearing of all sides can self-evidently not serve this function if it occurs after the decisions.


In the nature of things and particularly human nature, it is far more difficult to persuade a person to change their mind than to persuade a person who has approached an issue with an open mind to reach a particular decision. This is why the Audi principle is so intimately linked to the second fundamental principle of natural justice – nemojudex in suacausa (nobody shall be a judge in their own case).


Where the opportunity to be heard is offered after the decision has been taken but the person who will consider the representations and decide on whether the decision should be in favour or against the affected person is a different person from the one who initially made the decision and is independent of their organisation and can act impartially and make a fresh decision on the matter, there is no reason in principle why an opportunity to be heard given after the decision had been taken could not be accepted as satisfying the Audi alteram partem rule. In such a case that opportunity to be heard, though given after the decision, is as fair as, if not in fact fairer than, the opportunity that should have been given before the decision.


Leaving aside for the moment the question of whether there are other situations in which a hearing after the decision to dismiss an employee may be justifiable, it is worth considering the limits of the exception cited by the court – i.e., when the employer offers a hearing chaired by an “outsider”.


The above suggests that a hearing after the decision is acceptable where the person charged with the responsibility of taking the final decision is (i) different from the person who took the initial decision; (ii) independent of the first decision-maker and their organisation; (iii) impartial. Whenever these three requirements are met, natural justice will be served by a hearing after the decision.


Note: Provided the opportunity to be heard that an employer offer is as fair as, or, even fairer than, the opportunity to be heard that an employee was entitled to before a decision was taken and a fresh decision can be taken, that is good enough. In such a case it matters not that the employer may not have had an acceptable explanation for not giving the opportunity to be heard before the decision. The form must not be observed for its own sake. The effect must be given substance. Accordingly, if a person was offered such an opportunity to be heard after a decision had been taken and rejects such an offer simply on the basis that it was made after the decision had been taken and with no regard to how fair an opportunity to be heard was, such a person cannot be heard to complain.


The focus should not really be on the culpability of the employer, but on that of the employee. In cases where employees reject offers of hearings that they have no reason to suspect would not be perfectly fair, they have no reason to complain. This is not really a case where the court holds that the Audi principle has been satisfied. It is rather a case in which the employee had waived their right to be treated in compliance with that principle. In such cases, the court observes that employees cannot expect sympathy because they have suffered no prejudice. The loss or harm of which they complain can only be the abstract loss of their right to a fair hearing. By the time they arrive before a court or arbitrator with that claim, the loss of which they complain will have been of their own making.


But what of the principle that in circumstances when employees decline or fail to attend hearings, employers should convene hearings in absentia and arrive at decisions as best they can by default? One of the underlying principles of the Labour Relations Act is that employers and employees should agree to disciplinary codes and procedures and “other dispute resolution mechanisms”. Where an employee agrees to have a third-party chair a hearing and make a final decision independently and impartially, the employer is bound by the third party’s decision, but the employee is free to utilise the dispute resolution procedures afforded by the Labour Relations Act if they were not happy with the outcome of the decision. Should an employee reject an offer of a third-party chairing or fail to attend a third-party hearing, the employer should unilaterally continue with the hearing in the absence of the aggrieved employee as the offer is an accepted rectification of an unfair procedure.


Where a person is entitled to a hearing at first instance as well as to an appeal or where they are entitled to two hearings, the holding of a fair appeal hearing when there was a defective first hearing or no first hearing at all, or the holding of one first hearing instead of two or the holding of a first defective hearing and a second hearing satisfies the requirement of the Audi alteram partem rule should a disciplinary code allow for two hearings and or an appeal procedure. In the absence of a binding disciplinary code, employers are entitled to negotiate a disciplinary hearing after the employer had decided to dismiss an employee without first having a hearing which in law an employee is entitled to.


The courts have found against employees who frustrate their employer’s bona fide attempts to correct past procedural errors. The courts have denied unfairly dismissed employee compensation because they declined their employer’s bona fide offers to reinstate them and grant them hearings after their reinstatement and this is because employees were to blame for not having enjoyed the procedural rights to which they claimed they were entitled.


Disciplinary defects can be cured by an internal fair appeals process, should the company prescribe such a process. An appeal takes the form of a complete rehearing. In Labour Law, whether or not an employee was denied a fair hearing or a fair appeal, or both, dismissed employees are granted the exceptional right to a further de novo (disregard whatever happened at the disciplinary hearing (the record of the disciplinary hearing or no record of a disciplinary hearing) as you are hearing the matter afresh and for the first time) hearing by a court or arbitrator at which either the procedure followed by the employer before the dismissal or the reasons for the dismissal or both, are subject to a complete inquiry, the result which confirms or replaces the employer’s decision. An internal appeal process can be achieved where an appeal body has the power to investigate a case afresh and to hear witnesses so that it itself decides on all aspects. The appeal body thus does exactly what the court or arbitration tribunal would do if the dispute came before it.


Employers are not relieved of their right to comply with the Audi principle before dismissing employees in all circumstances, it certainly only does where the employer later offers the employee a hearing by an independent third party. This is because, as the court put it, the concern that the person who has already taken the decision will be reluctant to change their mind does not arise when another person – particularly if they are independent of the first one – hears the representations of the affected party and make a fresh decision on the matter. If that is so, employers can be forgiven for wondering why they should go to the trouble of holding elaborate disciplinary inquiries when dismissed employees are assured of a fair hearing later if they want one.


“If they want one” – this lends itself to situational and circumstance specific. The EOHCB will always encourage employers to follow schedule 8 of the Labour Relations Act and promote fair disciplinary procedures before deciding to dismiss an employee.


In the absence of an acceptable situation or circumstance, an employer may face a situation of procedurally unfair dismissal, which has a maximum compensation award to an aggrieved employee of 12 months' remuneration, regardless of the substantive fairness of the dismissal.

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