ABOUT 50% of all arbitrated alleged unfair dismissal cases result in it being held that the dismissals were unfair.
This is not a particularly encouraging statistic, especially in light of the fact that the Commission for Conciliation, Mediation and Arbitration (CCMA) gets about 750 referred labour disputes every working day, across the country, with an estimated 80% of those cases being alleged unfair dismissals. Our case law reaffirms that workplace disciplinary hearings were never intended to be conducted in a formal and legalistic manner, akin to the requirements of criminal cases in a court of law.
On the contrary, workplace disciplinary procedures are meant to be conducted with minimum formality, ensuring that certain basic procedural rights are tendered to employees in the process. Workplace discipline is assessed in accordance with the principles of procedural and substantive fairness. In other words, was there a fair reason for the discipline applied and did the employer follow a fair procedure? The requirements for the fair application of workplace discipline can be reduced to 10 factors.
To begin with, does the employer have sufficient proof of misconduct? The employer is required to prove that the employee is guilty on a balance of probabilities. In short, is there sufficient proof that the employee is “probably” guilty of the alleged misconduct.
Secondly, the employer must prove that the employee can be held blameworthy for, and committed, the act/omission. Employers frequently overlook the fact that it is not merely the alleged act or omission that must be proved. For misconduct to be proved, it must be proved that the alleged act or omission occurred and that the employee can rightfully be held blameworthy for the act or omission alleged. For example, an employee can never be held blameworthy or guilty for having contravened a company policy if it cannot be proved that the employee had no prior knowledge of that policy.
Thirdly, are witnesses available and agreeable to testifying or is other evidence available? An employee can only be found guilty on that proved at the disciplinary hearing. This may or may not correlate with what the employer knows to be true. Documentary evidence should be handed to the employee before the hearing for his/her perusal.
Fourthly, written allegation(s) must be furnished to the employee clearly, in a form and language that the employee can reasonably understand.
Fifthly, the employee must be afforded reasonable time to prepare for a disciplinary hearing. In practice, no less than two working day’s notice is considered reasonable, unless additional time is warranted in more complex cases.
The sixth key factor is that employees have a right to an interpreter and representation. The employer must afford the employee the right to an interpreter when they deem this necessary, and the right to an internal representative.
Next, employees have a right to submit a defence and cross-examine employer witnesses. All employees have the right to reply to the allegation(s) being levelled against them and challenge employer evidence, normally by cross-examination. Employees found guilty have the right to submit factors in mitigation before a sanction being imposed and the right to have those submissions carefully considered by the chairperson.
The penultimate factor is that of the imposition of an appropriate sanction. Put differently, the punishment must fit the crime, taking “the totality of circumstances” into consideration. The Labour Court usually refers to this aspect of sanction selection by imploring employers not to select a sanction that makes the court “whistle”.
Finally, alleged unfair dismissals may be referred to the CCMA or a Bargaining Council. Employees should be provided with the reasons for their dismissal and informed of their right to refer the alleged unfair dismissal to the CCMA or a Bargaining Council with jurisdiction within 30 days of the dismissal. Disciplinary hearings are invariably chaired by internal managerial employees or, on occasion, by externally qualified persons trained to fulfil this function. It goes without saying that workplace discipline must be applied consistently. Such consistency in the application of workplace discipline is assessed in three ways.
Firstly, an employer may not discipline today for an act or omission that was, for example, overlooked yesterday, as it would be considered inconsistent to do so.
Secondly, all employees deemed guilty of having committed an act misconduct should be disciplined. Thirdly, if all are found guilty, they should, all things being equal, receive the same sanction.
Tony Healy is the managing director at Tony Healy & Associates Labour Law Consultants. Visit www.tonyhealy.co.za