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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.
Section 188 of the Labour Relations Act (LRA) gives the employer the onus of proving that it has been procedurally and substantively fair in dismissing employees. This forces employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.
No Labour Court decision illustrates these points better than the one delivered in Riekert vs CCMA and others (2006, 4 BLLR 353). In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management. He took the employer to the CCMA but the arbitrator upheld his dismissal.
He therefore took the arbitrator on review to the Labour Court where the judge made the following findings:
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- The CCMA arbitrator had recognised that the employer had a very extensive disciplinary code but had not adhered to it
- Since the employer’s disciplinary code was incorporated in his employment contract the employee was entitled to insist that it be complied with
- Despite the above the arbitrator found that the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines
- While it is true that disciplinary codes are merely guidelines this does not entitle employers to deviate from procedures as they liked
- It was unclear how the arbitrator arrived at the conclusion that the hearing was substantially fair since, contrary to the employer’s own code, the chairperson of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions
- The employer had waited six months from the time it became aware of the misconduct before bringing the charges against the employee. This was despite the employer’s own disciplinary code that required that charges be brought within a reasonable time.
- The employee had been denied the opportunity to call witnesses
- The CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation
- No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis for that charge
- The arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority. The employer’s witnesses were not even able to remember the date of the alleged incident
- The arbitrator’s finding that the employee had not been frank in his testimony had neither been justified nor reasoned
- The arbitrator had failed to apply his mind to the evidence at all
- The arbitrator’s award was set aside
- The dismissal was substantively and procedurally unfair
- The employer was ordered to pay the employee R100 000 in compensation plus interest
- The employer was to pay the employee’s legal costs.
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This case is of great importance as it provides employers with a number of extremely valuable lessons including that they should not:
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- ignore their own disciplinary codes
- allow any unnecessary delays in notifying employees of disciplinary charges
- prevent an employee from bringing witnesses to his/her disciplinary hearing
- forget, before attending a disciplinary or arbitration hearing, to gather and prepare all evidence thoroughly.
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