Workplace Discipline: Limiting delay in disciplinary processes

Introduction Typical disciplinary processes: – Follow a formal tribunal style process – Often take a long time – Can be expensive – Lead to disputes (if dismissal) – Count for no more than procedural fairness – Must be duplicated at arbitration

What does the law require? Section 188 of the Labour Relations Act requires that a dismissal must be not only for a fair reason but “effected in accordance with a fair procedure” taking into account “any relevant code of good practice” issued in terms of the Act. Schedule 8: Code of Good Practice that: – the employer notify the employee of the allegations – the employee be allowed an opportunity to respond to the allegations (dialogue and an opportunity for reflection) – the employee be entitled to representation by a fellow employee or trade union representative; and – the decision of the enquiry must be communicated to the employee, preferably in writing.

Van Niekerk J in Avril Elizabeth Home for the Mentally Handicapped [2006] 9 BLLR 833 (LC) – confirmed that item 4 of the Code of Good Practice on Dismissal does not require an employer to convene a formal disciplinary enquiry when enforcing workplace discipline. – a “significant and fundamental departure” from the criminal justice or adversarial model developed by the Industrial Court and applied under the old unfair labour practice definition – true justice lay in 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 decision is found wanting (at 839). – the employee’s right to resort to expeditious arbitration was intended to promote rational decision-making and to do away with the inefficient and inappropriate procedures adopted before the new Act in – no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex charge sheets, requests for particulars, the application of the rule of evidence, legal arguments and the like (at p839). Managers are not intended to be experienced judicial officers and workplace efficiencies should not be impeded by lengthy procedural requirements.

Avril Elizabeth has subsequently been confirmed: – Ngutshane v Ariviakom (Pty) Ltd t/a Arivia.kom & others [2009] 6 BLLR 541 (LC), it was held that in circumstances where an employee’s misconduct is manifest, common cause or not in dispute, a less formal process will suffice. – Tshongweni v Erkuhuleni Metropolitan Municipality (JS 637/07) [2010] ZALC 84 (18 May 2010) Van Niekerk J again stressed that the standard against which procedural fairness must be determined is that established by the LRA. He stated that “(i)f an employer in its folly chooses to engage an independent counsel to conduct a hearing to a standard that would make a High Court judge proud, it does not follow that the CCMA (or this court) must act as if it were the Supreme Court of Appeal when determining whether a dismissal was procedurally fair”.

ILO Convention 158 on the Termination of Employment – requires procedures to promote compliance with the obligation to ensure that dismissals are based on valid reasons – International labour standards give content to our constitutional right to fair labour practices. ILO committee of experts (referring to article 4 of convention 158) – no need for an adversarial proceeding – dismissal must be preceded by dialogue and reflection between the parties

Why the reluctance to apply Schedule 8? Internal disciplinary codes and procedures often unduly onerous and outdated Past practice and expectation Understanding of the law Inadequate training Poor advice Weak lawyers Undue caution Weak chairpersons

The future More formal processes used when dispute exists or if parties decide to use such processes Avoiding delay – Acting on dilatory tactics such as medical certificates, unnecessary requests for postponement – Postponements: be unequivocal in all communication – Documents: ensure documents are made available timeously – Representation: ensure representative available – Medical certificates: In Mgobhozi v Naidoo NO [2006] 3 BLLR 242 (LAC) medical certificates no different to other documentary evidence, constitutes hearsay in the absence of an affidavit from the doctor concerned

Notice and comment procedure – On paper – Senior employees? – Particularly where no disputes of fact – On the basis of allegations and the opportunity to respond via representations – No hearing convened – Decision in writing – Complies with Schedule 8

Conclusion Advise on discipline and disciplinary codes with caution Consider Schedule 8 Make the speedy resolution of labour disputes a reality Hold processes which are fair and equitable but not unduly procedural or technical In the words of Van Niekerk J: “If an employer in its folly chooses to engage an independent counsel to conduct a hearing to a standard that would make a High Court judge proud, it does not follow that the CCMA (or this court) must act as if it were the Supreme Court of Appeal when determining whether a dismissal was procedurally fair”.