The introduction of the Labour Relations Act 66 of 1995, included Schedule 8: Code of Good Practice Dismissal. The Code introduced the possibility of a less formal approach to disciplinary procedures, than the previous form, which more closely resembled criminal procedures. This week Ivan Isrealstam explains his view that without formal processes, it will be difficult to meet the requirement on the employer to prove a fair procedure. (Remembering that a dismissal needs to be both substantively and procedurally fair.)
The Code Of Good Practice: Dismissal in Schedule 8 makes it clear that, while the disciplinary process can, under certain circumstances, be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.
While it is clear that the abovementioned Code Of Good Practice provides that the disciplinary hearing need not be formal section 188(1)(b) of the Labour Relations Act (LRA) requires that the employer has the onus of proving that a dismissal was procedurally fair. The key question is ‘How can the employer go about proving that the dismissal was procedurally fair, without using formal processes to ensure fairness and to demonstrate that the procedure was indeed fair?’ For example, the Code Of Good Practice does accord the employee the following procedural rights:
- The right to be informed as to what the charges are – proof would be a written charge sheet, receipt, for which has been signed by the accused employee;
- The right to a proper opportunity to prepare - proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt, for which has been signed by the accused employee well in advance of the hearing date;
- The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses, and cross-examine evidence brought against him/her.
Consequently, once one introduces the use of records such as minutes, hearing notices, and charge sheets, one is converting the disciplinary process into a formal one. In my view this conversion is reinforced by the need to separate the complainant role, from the presiding officer role in order to eliminate bias.
However, it appears that my view is in conflict with that of one Labour Court Judge. In the case of Avril Elizabeth Home for the Mentally Handicapped vs CCMA and others (2006, 9 BLLR 833), the finding of the Court suggests that avoiding of bias at a disciplinary hearing is not a requirement. Other findings that came out of this case are as follows:
- Video coverage does not have to be absolutely conclusive to be accepted, it need only satisfy the balance of probabilities requirement; and
- The procedure bringing about a dismissal does not have to be a formal enquiry unless the parties have agreed that it will be a formal hearing.
I am in agreement with the honourable Court as regards the principle of balance of probabilities and as to the fact that The Code Of Good Practice does not require a formal hearing. I have, however, explained why, in practice, it is very difficult for an employer to comply with the requirements of The Code Of Good Practice without using the mechanisms of a formal process. This is necessary, not because the Code says so, (which it does not), but rather to make sure that the employer can satisfy its onus of proving that it has complied with the content and spirit of that Code.
As regards the apparent finding that an unbiased chairperson is not necessary at a disciplinary hearing, I respectfully believe that, if the Court really meant to say this, its decision cannot be correct and will be overturned sooner rather later. I would prefer to believe that the Court only meant that the test for bias of the chairperson should not be as stringent as that applied in criminal law.
My view is based on the fact that The Code Of Good Practice requires that the employee is afforded the opportunity to present his/her case, and the central core of labour law requires fairness. I submit that no employee can present his/her case fairly before a biased chairperson. To allow biased chairpersons to chair internal disciplinary hearings, and then dismiss employees, would make a mockery of such hearings. The employee would lose his job and livelihood unfairly, and could then lose his/her house, car and other assets, while he/she is waiting for the labour law process at CCMA, and Labour Court to take its course. Allowing such a situation would be akin to allowing a kangaroo court.
In summary, the employer’s onus to prove that all the employee’s rights have been complied with, makes a formal and expertly controlled disciplinary hearing essential. This holds true, even if the only procedural rights an employee has, are those few specifically provided for in The Code Of Good Practice.
While the officials who carry out the corrective procedure do not need to be lawyers, they do need to be well skilled in disciplinary procedure, in order to make sure that each and every legal right of the employee is strictly adhered to.
Therefore, managers must either be thoroughly trained in disciplinary process, or the employer must hire a reputable labour law expert to chair its hearings.
The article has been edited by the skill portal.
To view the debate contributions of our labour law experts on crucial labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the main menu.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Web Address: www.labourlawadvice.co.za.