The most common disputes referred to the CCMA and or Bargaining Council and mistakes made by employers relate to procedural irregularities. This is unnecessary and there are a few guidelines given to employers in the Labour Relations Act (LRA) and Schedule 8 of the LRA. Section 188 of the Act requires that, in order to constitute a fair dismissal, an employer must act both substantively and procedurally fair. The burden of proof rests on the employer to prove that the dismissal is both substantively and procedurally fair. Procedural fairness is a yardstick against which the employers’ pre-dismissal actions are measured and have nothing to do with the merits of the case. Every employee is entitled to a fair pre-dismissal procedure no matter how guilty they are. If the employer has a disciplinary code regulating disciplinary hearing procedures and the Chairperson of the disciplinary hearing has followed a fair procedure, the employer should not have many procedural complaints.
Procedural complaints are mostly related to the investigation, the procedure prior to the disciplinary hearing, and the procedure followed by the Chairperson during the disciplinary hearing. The requirement of a fair procedure is meant to discourage arbitrary and spur-of-the-moment action by employers. This however does not mean that employers must follow rigorous standards similar to that of a court of law and an employee cannot be forced to attend a disciplinary hearing.
If the employer does not have its own disciplinary code on the procedure, Schedule 8 prescribes the following requirements with regard to a disciplinary inquiry:
Notify the employee of all allegations using a form and language that the employee can understand;
The opportunity to state their case in response to the allegations;
Reasonable time to prepare;
The assistance of the trade union Initiator or a fellow employee;
Written notification of the decision after the inquiry;
The disciplinary hearing need not be a formal inquiry.
These guidelines constitute the basic requirement and employers’ code of conduct should adhere to these guidelines as well.
The Labour Court set out the requirements for procedural fairness in disciplinary hearings. According to the Labour Court, the rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognise that for an employee, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of the employer's decisions is found wanting.
For employers, this right to resort to expeditious and independent arbitration was intended not to promote rational decision-making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the current LRA were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by application of a more formal process.
The balance struck by the LRA thus recognises not only that managers are not experienced judicial officers, but also that workplace efficiency should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits.
When Schedule 8 refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need no be a formal inquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstance, the substantive content of this process as defined, requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, with reasonable time to prepare a response to the employer’s allegations with the assistance of a trade union Initiator or a fellow employee, should the employee wish to be assisted.
The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for the dismissal and be reminded of their rights to refer any disputed dismissal to the CCMA and or Bargaining Council.
Employers who have certain procedures set out in disciplinary codes and procedures should adhere to those procedures, as well. This may include overturning a decision taken by the Chairperson and or the employee being afforded an internal appeals process, before referring a dispute.
Schedule 8 determines that an employee should conduct an investigation to determine whether there are grounds for disciplinary action. The purpose thereof is to establish whether there is a prima facie case against the employee. This procedure normally consists of an interview with the employee and the witnesses and the gathering of documentary or real evidence. The code does not prescribe representation during such an interview; however, complaints of duress or coercion during the interview can result in procedural claims which might render the information obtained during such an interview worthless. Employees should not be forced or threatened to make statements and they should be informed of their right not to do so.
The method by which the misconduct is investigated can also result in a claim of procedural unfairness. In certain circumstances, employers resolve to measures such as entrapment or lie detector tests, which can also form the subject of complaint.
Charging the employee
Claims of unprocedural actions or procedural unfairness start with the actions of the managers, Human Resources (HR), and investigators of the case. In most cases, the Initiator or manager charges the employee, in conjunction with HR, if the employer has an HR function in its organisation. The process of charging the employee is often the subject of a complaint.
Charging an employee should preferably be done in the presence of the HR officer or a co-employee, as a witness. The elements of fair procedure should be followed, and the rights of the accused employee should be explained to them when being charged. A record should be kept that this has been done. The best place would be on the charge form itself and the accused employee should be asked to sign that they received the charges and that their rights have been explained to them.
Depending on the code of the employer or Schedule 8, the accused employee has to be notified in writing of the following rights:
To the assistance of a fellow worker or union official from their place of work to represent them during the hearing;
The date, time, and venue of the disciplinary hearing;
Full written particulars of the charges against the employee;
At least 3 clear calendar working days in which to prepare a defense;
That the employee is entitled to testify at the hearing and present their defense, to cross-examine witnesses, call witnesses and present documentary or physical evidence;
Should the employee be found guilty that they may present mitigating or extenuating circumstances for consideration by the Chairperson in deciding upon a sanction (if any) to be imposed;
The employee is required to attend but if the employee refuses, then 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 notification should be explained to them in a language that they can easily understand.
Another complaint of procedural unfairness is that of inconsistent behaviour of the employer. Employers should treat similar cases alike, however, they should always remember that each case has its own special circumstance and that should always be considered. Therefore, accomplices should be charged as well and disciplinary rules should be applied consistently. The only reason why the employer may not treat cases differently is when the facts are different or if it is similar; there must be clear facts or mitigation that distinguish the cases from each other.
Employers should heed the situation where vast amounts of facts and different charges play a role. A Labour Court Judge found that they had no doubt in their mind that great prejudice would be suffered by an accused employee in having to prepare for charges of a vast nature. Ambiguity and vagueness and the lack of indication of when and where incidents took place make it difficult to prepare a defense that is not prejudiced against the accused. Furnishing factual information as to the nature of the allegation against an accused is important so that the accused can know what case to meet. The information on the charge sheet must be sufficient to make the accused’s right to prepare a real and not an illusory right.
Multiple accused employees:
The individuals accused, are entitled to the aforesaid details as to the role they played with regard to each of the counts as this would be necessary for them to, not only prepare their defense, but it may happen that, depending on the information furnished in the particulars with respect to the case against each of them, they might find that there is a conflict of interest between them in which case they may decide to be separately represented instead of being represented by one shop steward/co-worker/union representative. This is of significance as it goes to the right of the accused to be able to be represented by a shop steward/co-worker/union representative of their own choice.
The requirements for procedural fairness have three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary inquiry:
The person should know the nature of the accusation against them;
They should be given an opportunity to state their case;
The tribunal should act in good faith.
This confirms the core rights of Schedule 8 of the LRA. With regard to the supply of particulars in a disciplinary hearing, the facts and information contained in a notice to attend a disciplinary hearing must not only be unambiguous but must contain sufficient information to ensure that the right of the employee to prepare for the hearing is realised. The right to prepare for a disciplinary hearing may be undermined if insufficient or confusing information is provided. In other words, the requirement to provide concise and adequate information arises from the need for adequate preparation.
It is essential that the notice containing the charges should be precise and spell out in a precise manner the nature of the process that the accused person is to confront during the hearing. For sufficient information to meaningfully prepare a defense, questions such as “who?”, “What?”, “Where?”, “how?”, “seen by whom?”, “apprehended by?”, “overheard by?”, “what time?”, “what date?”, should be included as this will enable the employee to prepare a defense.
The disciplinary hearing
The next procedural complaint is when the employer failed to hold a disciplinary hearing. Normally a formal disciplinary hearing should be held in the case of:
Repeated misconduct, for which the employee has already received a warning;
Any serious misconduct that warrants more than a verbal warning;
In terms of Schedule 8, an incapacity hearing should be held in the case of medical incapacity or poor performance.
The requirement of a hearing is based on the principle of audia alterem partem (the right to be heard), which requires every person charged with an offense to be given the opportunity to defend themselves or confront their accuser. Procedural fairness in general terms refers to a disciplinary hearing that has to be held to afford the employee to state their case.
In terms of Schedule 8, in exceptional circumstances, if an employer cannot reasonably be expected to comply with the requirements to hold a disciplinary hearing, then the employer may dispense with pre-dismissal procedures. Such a circumstance will be when, objectively speaking, the employer could not reasonably have been expected to hold a hearing. Such circumstances might arise when the employer is compelled to dismiss instantly in order to protect lives and property or to adhere to an ultimatum in strike circumstances.
Another example is where the employee refuses to attend the disciplinary hearing or where the employee admitted guilt. Another claim of procedural unfairness might arise when the employer fails to hold the disciplinary hearing within a reasonable time. There is no fixed time limit and the requirement of fairness applies. If the employer takes a long time to hold a disciplinary hearing, it should have a good reason for doing so, to prevent a situation where the employee claims that the employee condoned the misconduct by not acting on it in time.
Conduct of the Chairperson and bias
Another procedural complaint relates to the conduct of the employer, the complainant, and the Chairperson during the disciplinary hearing. The conduct of the Chairperson during the hearing can contribute to allegations of bias. Examples thereof are when the Chairperson takes over the role of the complainant, becomes involved in the case, caucuses with other employees limits the accused employee to put forward a defense, cross-examine witnesses or calls witnesses.
The following is required of a Chairperson:
To keep a record by way of minutes (unless another employee is tasked to keep a record). The hearing should preferably be recorded;
Impartiality – keeping an open mind throughout the process;
Should know as little as possible of the case;
Making an independent decision;
Considering mitigating and aggravating circumstances;
Giving a fair sanction after taking into account the record of the employee.
Schedule 8 specifically states that the form and content of disciplinary rules vary according to the size and the nature of the employer’s business. Bigger organisations may be required to apply stricter procedural standards than smaller employers. The bigger organisation mostly has its own disciplinary codes prescribing its own rules for procedural fairness, in which instance the employer must comply with its own rules and standards.
In certain cases, arbitrators will be less stringent on procedural irregularities, especially when the nature of the offense is not so serious and where the dismissal is generally otherwise fair, but procedural unfairness can cost an employer up to 12 months of remuneration. Lesson to be learned - follow procedure before dismissal!