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Section 188 of the Labour Relations Act (LRA) provides that, to be fair, a dismissal that is not automatically unfair must be for a fair reason and in accordance with a fair procedure.

  • The employer should investigate to determine whether there are grounds for dismissal. This does not need a formal inquiry.

  • 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 a response and to the assistance of a trade union representative of a fellow employee.

  • After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

The right to be informed of the charges

The charges must be clear

Employers should advise accused employees in advance of the precise charge(s) they are required to answer. The requirement flows from the need for adequate preparation. The charge should be formulated in precise and simple terms. Where information should be provided to make the charge(s) comprehensible, it should also be provided. However, charges need not be drawn up in the detail required for indictments in criminal proceedings.

No splitting or duplication of charges

It is unfair that an employee is charged with two or more separate forms of misconduct in circumstances where the conduct only constitutes one offense.

Where a single incident has different factual components that comprise different offenses and have distinguishable consequences, it is not splitting or duplication of charges.

The criminal courts make use of two tests to determine whether there has been an improper splitting of charges. The first test if the “single intent” or “continuous transaction” test, and the second one is the “same evidence” or “dominant intent” test. The latter is related to the intention of the accused person as they perform several acts which are logically and intrinsically connected to the one offense which they then commit. If the totality of the accused’s conduct can be accommodated in one single charge, the accused may not be found guilty on multiple charges.

The hearing must not be unreasonably delayed

A hearing must be convened as soon as possible after the incident which led to the disciplinary action so that the facts are still fresh in the minds of the parties and their witnesses.

The right to a proper opportunity to prepare

This can only happen if the employee has been given adequate time to prepare and enough information to understand the charges against them. What is reasonable will depend on the circumstances and the complexity of the issues. Short notice will render the dismissal unfair if an employee is materially prejudiced as a result. An employee may ask for a postponement if more time is required to prepare a response.

The employee’s right to be heard and to present a defense

The purpose of disciplinary hearings is to ensure that accused employees have an opportunity to lead evidence in rebuttal of the charge, and to challenge the assertions of their accusers before an adverse decision is taken.

The right to be fairly judged

The point of a disciplinary hearing is to enable the presiding officer (chairperson) to weigh the evidence for and against the employee and to make an informed and considered decision. This presupposes that presiding officers must have, and keep, an open mind throughout the proceedings.

Changing the finding of the chairperson on appeal

Employers are not always satisfied with the decision of its chairpersons, and the question them arises whether it can change the finding of the chairperson or not. In order for an employer to change a decision taken by a chairperson, its disciplinary code should provide for it or should the employer be involved in collective bargaining, the main collective agreement should provide for the employer to decide otherwise to that of the chairperson. Should an employer disagree with the decision of a chairperson, they can apply for a review under section 158(1)(h) of the LRA.

Double jeopardy

Double Jeopardy occurs when an employee is punished twice for the same incident of misconduct or poor performance. Normally, such discipline would be found to be unfair.

Can the employer discipline an employee twice for the same incident of misconduct? Under exceptional circumstances, a second disciplinary process might be justified if the employer is able to present evidence that:

  • is new and has therefore not been presented at the first disciplinary hearing;

  • is relevant to the charges;

  • is significant enough to merit a new hearing; and

  • the first sanction imposed was grossly unfair under the circumstances.

However, even these factors are not properly interpreted and applied by employers who continue to:

  • Give employees warnings and dismissals at the same time

  • Reopen cases that should be left alone

  • Set up new disciplinary hearings without good reason after the employee has already been disciplined for the offense

  • Open new hearings with newly formulated charges that are merely a different way of wording the same charge in respect of which the employee managed to avoid dismissal.

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