BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or via e-mail address: [email protected].

The word ‘prejudice’ has a number of different meanings. Any employer needs to understand these meanings in the context of labour law because all South African employers are bound by very strict and numerous labour laws.

The first meaning of prejudice refers to an opinion formed before the receipt of the relevant facts. It appears that the word ‘prejudice’ has the same root as the word ‘prejudge’. Therefore, the chairperson of a disciplinary hearing or an arbitrator could be described as prejudiced if he/she makes a finding that is based less on the facts of the case than on their opinions of feelings towards the parties in the case. For example, the disciplinary hearing chairperson might find a driver guilty of damaging the company vehicle because the driver had once been rude to the chairperson. The chairperson therefore has a personal reason for disliking the driver. He/she might therefore make up his/her mind that the employee is guilty even before the hearing gets underway. This could result in a dismissal despite the fact that the complainant brings no proof at all of the driver’s guilt. Such prejudice or bias would be grounds for the employee to take the employer to CCMA.

It could also occur, for example, that an arbitrator might prejudge a case based on who the parties are even before hearing the evidence. That is, the arbitrator might decide right at the outset to find in favour of the employee because they are both of the same race or gender despite the fact that the employer then brought much stronger proof of its case. Should this occur the employer would have the right to take the arbitrator to Labour Court on review on the grounds of prejudice. The second meaning of ‘prejudice’ is related to the first one. It occurs at the workplace when, for example, an employer dislikes people of a certain race. This could result in mistreatment of employees who are members of that race and could lead to a CCMA case. The third meaning is used in the phrase ‘without prejudice’ and, where it appears in a letter, means that the writer is reserving his/her legal rights despite the content of the letter.

The fourth meaning of ‘prejudice’ means detriment. That is, if a party to a CCMA matter argues that it could suffer prejudice this means that the party believes it could suffer detriment or loss or be negatively affected in some way. For example, an employee who has referred a case late to the CCMA may argue that, despite his/her lateness, the CCMA should hear the case because failure to do so would result in prejudice to the employee. That is, the employee could argue that he/she would lose his/her opportunity for justice if the case is dismissed. Another example of this fourth meaning of ‘prejudice’ came up in the case of Dell vs Seton 2009, 2 BLLR 122). In that case the employer failed to keep to its own disciplinary code when dismissing an employee. However, the Labour Court found that the procedure that was followed, despite deviating from the disciplinary code, was not unfair and that the deviation did not result in any prejudice to the employee.

This meant that the deviation form the code did not, in itself, result in any detriment to or negative effect on the employee. The Court therefore upheld the fairness of the dismissal. In the case of Slabbert vs Ikhwezi Truck Tech (Pty) Ltd (2008, 1 BALR 75) two different meanings of the concept of ‘prejudice’ came up. The company’s managing director was fired for allegedly taking a bribe. The dismissed employee claimed:

  • that the chairperson of the disciplinary hearing was prejudiced because he had wanted the employee’s position of MD and dismissed him in order to clear the way for his own move into the post of MD. In this sense the word ‘prejudiced was used to mean bias; and
  • that the chairperson’s refusal to allow him a legal representative at the hearing prejudiced his chances of a fair hearing. In this sense the word ‘prejudiced was used to mean negatively affected.

In this case the arbitrator did not accept either of the employees arguments and upheld the dismissal. That is, the arbitrator found that:

  • the chairperson had not been prejudiced (biased) because of wanting the the MD’s position for himself; and
  • the refusal to allow the employee a legal representative at the hearing did not prejudice (negatively effect) his chances of a fair hearing.

Employers should be sure that they not only understand the different meanings of the concept of ‘prejudice’ but also train their management to avoid infringing the law in respect of these concepts. This requires intensive training of managers in the chairing of disciplinary hearings, handling of CCMA cases and the management of employees.

For free access to our ongoing labour law debate, LABOUR LAW ON TRIAL please go to Labour Law Management Consulting and click on the Labour Law Debate item in the menu.

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