Employers too often get rid of employees for reasons unacceptable in law. Some of these reasons include:
The employer dislikes the employee for reasons unrelated to the workplace.
The owner wants a more attractive secretary
The employee is unwilling to grant her superior sexual favours
The employee has clashed with a key executive who has threatened to resign
The employee has reported the employer to SARS, the Department of Labour
or Department of Health for violating the law
The manager is under pressure to perform and uses the dismissed employee
as the scapegoat for performance problems
The employer feels that it is time that it shows the workers who is boss and
picks on the first employee who makes a mistake
The shop steward stands up for the employee’s rights and is labelled as a
Employers then conspire to get rid of such undesirables through the use of a
number of tricks including:
Firing the employee orally and then pretending that the employee absconded
Framing the employee for poor performance or misconduct
Provoking the employee into committing misconduct
Setting up a disciplinary hearing where the presiding officer has been primed
in advance to fire the employee.
This latter trick clearly renders the presiding officer biased. This constitutes a
serious breach of the employee’s right to fair procedure. Where the employer is
caught out using such a biased presiding officer the CCMA has no mercy. The
employee is likely to be reinstated with full back pay or to be granted heavy
compensation to be paid by the employer.
Such bias on the part of a disciplinary hearing chairperson can be discovered in
a number of ways including:
The chairperson grants the complainant (person bringing the case for the
employer) the opportunity to obtain more evidence, take adjournments or
interrupt the employee; but does not grant the employee similar rights.
The presiding officer ignores evidence brought by the employee
The chairperson is chosen to hear the matter despite having been the one
who caught the employee breaking the rule.
The chairperson says things early in the hearing that indicate that he/she has
decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs
Robben Marine cc (2006, 6 BALR 569) the employee was dismissed for
attempting to remove several frozen chickens that he had hidden in a bucket.
The arbitrator accepted that the employee was guilty of the offence but still found
the dismissal to be unfair. This was primarily because the chairperson of the
disciplinary hearing had revealed his bias by asking the employee at the
beginning of the hearing “do you have an excuse for stealing the chickens?”
In South African Policing Union obo Moorcroft vs South African Police Service
 11 BALR 1192 (SSSBC) the employee, who had been dismissed for
calling a colleague a “dom apie”, was reinstated. This was partially due to the fact
that the arbitrator found that there was a reasonable apprehension of bias of the
presiding officer because of his historical relationship with the accused.
The fact that arbitrators do not hesitate to punish biased or inept presiding
officers means that employers should:
resist the temptation to ‘fix’ the outcome of disciplinary hearings in advance
avoid misusing disciplinary processes to pursue private agendas
ensure that only impartial and properly trained persons chair disciplinary
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