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PROCEDURAL FAIRNESS - FORMULATING THE CHARGES

Deciding on the charges

Another common procedural error occurs when the employer decides to charge the employee. Many employers have a comprehensive disciplinary code and procedure which provides for a whole array of different transgressions and proposed sanctions. It is often a difficult task to decide which charge in the disciplinary code and procedure fit the transgression. It is, however a very crucial and necessary exercise to perform, as the employer will be stuck with their charges right through the life of the disciplinary action and possible arbitration thereafter.


This is when if the complainant does not apply their mind when charges are split and employees end up with a host of charges when scrutinized ends up to be charging the employee twice or even more for the same offense.


Another practice frequently used by employers is to use overarching charges such as conduct in breach of the trust relationship. Breach of the trust relationship is the test to be applied to determine whether the employee should be dismissed or not. If there is no evidence of such a breach, then the employer cannot dismiss and should apply corrective action.


Employers use various charges for dishonest offenses and often and purposefully word the charges as comprehensively as possible to ensure that the evidence supports the claim. How do you prove that the trust broke down in order to warrant dismissal?


Generally, the Supreme Court of Appeal’s decision is now cited as authority for the proposition, and, given the widespread impact this has on disciplinary inquiries and subsequent arbitrations, it is an important decision as regards day-to-day practice. No employer should ignore this decision and its implications. In any case, where the question of breach of trust becomes relevant, it should be led by evidence by the employer and chairpersons should not assume a breakdown by virtue of their knowledge of the employer’s business or their own views.


In a particular case, the Supreme Court of Appeal looked at what evidence would be necessary to show a breach in the trust relationship:


  1. Policy document(s): It found that it is a document and is just that – a policy – and is no evidence of the consequences of misconduct based on it. The mere production thereof would not suffice to justify a decision to dismiss.

  2. The crux of the case against the employee was that their conduct breached the trust relationship. Someone in management who had dealings with the employee was required to tell in what respects the employee’s conduct breached the trust relationship.

  3. No evidence was adduced to identify the nature and scope of the employee’s duties, their place in the hierarchy, the importance of trust in the position that they held or in the performance of their work;

  4. Or the adverse effects, either direct or indirect, on the employer’s operations because of the employee’s retention, e.g., because of precedent or example to others.

  5. Furthermore, the seriousness of dishonesty – i.e., whether it can be stigmatised as gross or not – depends not only, or even mainly, on the act of dishonesty itself but on the way, it impacts the employer’s business as well. Evidence showing adverse impact, if any, on the “business” is critical and must be presented via evidence or testimony.

  6. Importantly it should be remembered that the chairpersons of the disciplinary hearing and appeal hearing are not witnesses and cannot provide the management view regarding the damaged trust relationship. Their role in those proceedings was not as witnesses. In this particular case, a witness actually stated that they could work with the employee in the future.

  7. The employee’s record also played a role. They had very long years of service which was considered by the commissioner.

Duplication or splitting of charges

It often happens that a single incident could be related to various charges. It is, however, not acceptable to charge an employee with multiple charges when the same facts will be required to prove these charges. This is called the impermissible splitting of charges. If the chairperson finds the employee guilty of all the charges and then states that because the employee committed all of these offenses, a more severe sanction would be appropriate, the decision could be found to be substantively unfair. It is thus preferable that the employer complainant chooses the charge, which they believe has the best prospects of proving.


Double jeopardy

According to the double jeopardy principle, it is generally unfair to re-open proceeding against an accused person once the matter has been finalised and the person is either acquitted or has been found guilty and a penalty imposed.


In criminal law, the former situation gives rise to a plea of autrofoisaquit (refers to an accused who cannot be tried for a crime because the record shows they have already been subjected to trial for the same conduct and was acquitted); the second situation gives rise to a plea of res judicata (literally “a matter judged”, which is the principle that a matter may not, generally, be relitigated once it has been judged on the merits). In criminal law, these principles are applied absolutely (except, possibly, where a mistrial has constitutional implications). If the accused can prove that the second prosecution arose out of the same set of facts as the first, the second must be abandoned. In labour law, however, the situation is less certain.


The following gives an indication of the difficulties employers may face when faced with a decision to discipline for a second time.


Double jeopardy: Are duplicated disciplinary inquiries allowed?


It is a fundamental principle of justice that a person should not be prosecuted twice for the same offense. Whether the principle should apply in the workplace is a question that has split the Labour Appeal Court.


What, if anything, can an employer do if it has instituted disciplinary action against an employee, found that there was insufficient evidence to convict them, and subsequently unearths new evidence to prove that the employee did indeed commit the misconduct or committed misconduct far more serious than with which the employee was initially charged? May the employer re-open the matter, or is it bound by the principle that a person, once acquitted on charges arising from a particular set of facts, cannot be tried again on new charges arising from the same facts?


According to the Labour Appeal Court, where new evidence can justify that it cannot sustain the employment relationship and that the employer has lost all confidence in the employee, the employer cannot be compelled to retain an employee and a second hearing can be held and justified. In labour law, the main consideration is fairness to both employers and employees, however, there are two limitations to the test of fairness. One is that a second inquiry might be precluded by the employer’s disciplinary code and the second is that the right to hold more than one disciplinary inquiry applies only in “exceptional circumstances”.


Whether an employer is entitled to subject an employee to more than one disciplinary hearing arises in the context of a broader question of whether or not the dismissal of the employee is fair. In order to decide whether the dismissal of the employee is fair, it must be determined whether or not the employer was entitled to subject the employee to more than one disciplinary inquiry, It seems that in that context one cannot answer the question as to whether the dismissal of the employee is fair where such dismissal is the result of a second disciplinary inquiry by saying the employer is entitled to subject the employee to a second disciplinary inquiry if it is fair to do so. It appears to be circuitous reasoning. The correct test would be one that takes into account the interests of employers as well as those of employees and seek to balance them while mindful of the objects of the Labour Relations Act and the fact that labour law does not exist in a vacuum but is part of the whole legal system. Fairness alone can never provide a justification for holding two disciplinary inquiries against an employee.


Not circuitous

There is nothing circuitous about a finding that a dismissal is unfair because, for example, it is unfair to allow a person with a bias against the employee to decide upon it. Just so, it would seem, there is nothing circuitous about deciding that a dismissal is fair because it was, in the circumstances, fair to follow a person who might conceivably be regarded as biased against an employee from deciding their case – as, for example, a court might find in the case of a one-man business where there is nobody other than the owner to play the role of judge. If there is any logical flaw in the majority’s reasoning it is the suggestion of the Labour Appeals Court that the exceptions of “fairness’ and “exceptional circumstance” are distinct tests. They are, in reality, part and parcel of the same test. It is impossible to imagine any circumstances in which it would be deemed to be fair to subject an employee to more than one disciplinary hearing except in exceptional circumstances.


The law is replete with examples of situations in which departments from rules and principles are permitted in exceptional circumstances. One can cite, as obvious cases, the rules that permit a person to kill another in circumstances of necessity or self-defense. The law permits people to depart from rules because, in every case that they are permitted to do so, it would be unfair to visit the consequences of an act that would be unlawful but forgiven, and exceptional, circumstances. Employers are encouraged to conduct thorough investigations before initiating disciplinary action against employees, promote certainty and stability, prevent possible harassment of employees and bring labour law into line with other areas of the law and the rule of law which will preclude employers from holding second disciplinary inquiries in appropriate cases.


Labour law serves a purpose different from criminal and civil law. Whether an act is fair is a question different from whether it is lawful because acts may be lawful, yet unfair, and fair acts may be illegal. In labour law – and especially dismissal law – the Courts are charged with the duty of ensuring that employers and employees act fairly towards each other. Employees who steal from or defraud their employers do not act fairly toward their employers. A dishonest employee acts more unfairly towards their employer than the employer can be said to have acted unfairly by some bona fide procedural lapse, like a second disciplinary inquiry. This is not to say that labour courts should sanction gross violations of the rules of procedural fairness simply because an employee was guilty of misconduct. As it happens, the courts have a way of upholding the rules of natural justice on principle but, at the same time, avoiding rewarding fraudsters and thieves. They do this by holding that the employer acted procedurally unfairly, and by denying the employee relief.


Exceptional circumstances

Circumstances are found to be “exceptional” when: (i) an employee is guilty of serious misconduct; (ii) the employer, though not as assiduous as it might have been before and during the first disciplinary inquiry, was nevertheless bona fide; (iii) facts which could be classified as new and material, in the sense that they cast the employee’s conduct in a different light, came to the employer’s attention after the first disciplinary inquiry; (iv) the employer was not negligent in failing to obtain such facts before the first hearing.


These requirements, it would seem, are preconditions for exempting an employer from the rule against holding a second disciplinary inquiry after acquitting an employee on a charge of misconduct. In the absence of any of them, the double jeopardy principle will prevail.


When to hold a formal disciplinary hearing?

Normally a formal Disciplinary Hearing should be held when:

  1. Action stronger than a verbal warning may be warranted;

  2. The accused employee has already received a final written warning;

  3. The accused employee has already received a written warning or final written warning for an act of misconduct and has committed a repeated action of a similar nature.

Procedural fairness in general terms refers to a Disciplinary Hearing that has to be held to afford the employee to state their case. This requirement is derived from the audi alterem partem rule that requires, in the labour context, an employer to afford an employee an opportunity to be heard. The requirement of procedural fairness is also contained in section 188(1)(b) and item 4 of Schedule 8 – the Code of Good Practice: Dismissal – of the Labour Relations Act.


In cases of minor transgression, where perhaps a verbal warning will suffice, or even a written warning, an informal meeting can be held. Management should meet with the employee, in the presence of (should the employee request representation) a fellow college, union representative, and or shop steward (where applicable), and explain the nature of the rule and standard they are alleged to have breached and give the employee an opportunity to explain their conduct. If possible, a mutually agreed remedy on how best to address the issue of misconduct should be arrived at. The remedy can be applied, and a notation made in the employee’s personal file of the incident and the sanction applied.


Such a process does not constitute a formal hearing and is a quick way of resolving minor transgressions at a shop floor level.


Suspension of the employee

An employer’s code should provide for instances of suspension. Two types of suspension apply. The one where the employee is suspended pending an investigation. This takes place with pay and the second instance is the suspension without pay as an alternative to dismissal or separate sanction.


An employee may be suspended from duty on full pay, pending a Disciplinary Hearing, where the continued presence of the employee at the workplace may jeopardise any investigation or if it is thought that the employee may interfere with the evidence or witnesses, including intimidation or for their own safety or for the safety of other employees or safeguarding of the employer’s property. Many codes also provide for suspension in the event of serious offenses such as theft, fraud, or assault.


The Labour Court found the suspension to be constituted specific unfair labour practice both substantively and procedurally unfair when an employee is left in the dark regarding the nature of the offense and is not given an opportunity to say why they should not be suspended. The suspension usually prejudices an alleged offender, not only psychologically, but also in respect of future job prospects. There is substantial social and personal implication inherent in a suspension. The employee suffers a real prejudice to their reputation, advancement, and fulfillment in their job. Employers should hold a suspension discussion with the employee and heed the effect thereof on the employee, their reputation, and prospects to re-enter the work environment again.


Informing the employee of the charges

Normally, the Initiator or the Complainant charges the employee. This is because they are the representative of the employer who is actually chagrining the employee. This could be done in the presence of the Human Resources officer or a co-employee as a witness. These elements of a fair procedure should be explained to the accused employee when being charged. A record should be kept that this has been done.


This will happen after it has been established that a Disciplinary Hearing is necessary and then the accused employee must be notified in writing of the following:

  1. To the assistance of a fellow worker from their place of work or a registered trade union to assist if a member thereof;

  2. The date, time, and venue of the hearing;

  3. Full written particulars of the charges against the employee;

  4. Has been afforded at least three clear working days in which to prepare their defense;

  5. That they are entitled to the services of an interpreter;

  6. That they are entitled in preparing their defense; to assist them in presenting their defense at the hearing, to assist them in cross-examining witnesses or re-examining witnesses at the hearing, and to assist them with a plea in mitigation;

  7. That the employee must personally attend the hearing;

  8. That the employee is entitled to present evidence at the hearing;

  9. That the employee is entitled to call witnesses to testify on their behalf;

  10. That the employee is entitled to cross-examine the Initiator’s witnesses;

  11. Should the employee be found guilty as charged, the parties may present any mitigating or aggravating circumstances for consideration by the Chairperson in deciding upon a sanction (if any) to be imposed;

  12. That the employee’s non-attendance at the hearing without showing could cause such non-attendance will imply that the accused employee;

(a) Waived their right to be heard at the Disciplinary Hearing;

(b) Waive their right to present their defense against the charges;

(c) Waives their right to challenge the evidence of the Initiator;

(d) That their non-attendance at the hearing will entitle the Chairperson to make a finding based on the evidence presented to them at the hearing.


The employee should sign a copy of the notification to signify that they have received a copy. Should the employee be illiterate, the content of the information should be explained to them in a language that they can easily understand. Should the employee refuse to sign for a copy of the notification, the employer must hand it to the employee in the presence of a witness who will endorse the employer’s copy of the notification as follows:


“A copy of this notification was handed to the accused employee (state employee name and surname) on (enter day and date and time) in my presence.”

Witness signature _______________ Date _____________________



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