Dr Hilda Grobler

An accredited arbitrator and mediator, Hilda has over three decades experience in conducting arbitrations, mediations and workplace facilitations, as well as chairing of disciplinary enquiries and appeal hearings. She presided in the Industrial Court from 1990 until 1999 and is currently a senior commissioner at the CCMA and a number of bargaining councils. Hilda has conducted a host of investigations for municipal, academic and private organisations. She is an experienced trainer and lecturer, and currently teaches the Legal Drafting modules in the Post Graduate Diploma in Industrial Relations at the University of KwaZulu-Natal. Hilda serves as a chairperson for the KZN Provincial Treasury Municipal Bids Appeal Tribunal.

The Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act states that employers are entitled to satisfactory conduct and work performance from their employees, failing which they may take disciplinary steps against those employees.

In many instances, employees who have committed serious misconduct are dismissed following a disciplinary hearing.

The Code cautions employers that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure. How the disciplinary process unfolds depends fully on the employer. An employer often discovers too late that lack of preparation and/or mistakes made during the process have the potential to come back to haunt them, sometimes at great cost. 

What can possibly go wrong?

In principle, disciplining an employee should not be punitive but rather corrective, which means that employees are typically given a verbal, written or final written warning in an attempt to correct the unacceptable behaviour and ensure that they abide by the workplace rules in future.

Very serious transgressions which pose a risk to the business, however, such as dishonesty, sexual harassment, assault, etc invariably result in dismissal. An estimated 90 percent of dismissed employees then turn to the CCMA or a Bargaining Council, alleging that they were unfairly dismissed. Approximately 75 percent of the almost 200,000 disputes that are referred annually to the CCMA claiming an unfair dismissal are resolved at either conciliation or arbitration resulting in the employer reinstating or compensating the employee for unfair dismissal.

When an arbitration runs its course, the dismissal may be upheld or, if the employer has failed to show that the employee was dismissed for a fair reason, the arbitrating Commissioner may direct the employer to reinstate the employee with back pay.

Employers are forewarned

These facts tell us that employers must accept that every disciplinary hearing may potentially end up at the CCMA/Bargaining Council, or at the Labour Court, Labour Appeal Court or even at the Constitutional Court up to seven or eight years later.

It is also worth noting that, although the employer’s disciplinary code may state that a warning must be issued for a less serious transgression, the employee may still challenge such a warning at the CCMA in terms of the unfair labour practice section of the Labour Relations Act (LRA). This is especially possible where a final written warning was issued. Section 186(2)(b) of the LRA refers to “any other unfair disciplinary action short of dismissal”. Therefore, if there were no or insufficient grounds to have issued the final written warning it will be set aside in terms of this section of the LRA.

Although it is the employer’s prerogative to call an employee to a disciplinary hearing for alleged serious misconduct, they cannot do so on a hunch or merely because they suspect that the employee was in breach of a rule. An investigation must have been conducted to show that there is sufficient objective reason to allege that an employee has committed serious misconduct warranting a disciplinary hearing.

Preparation and training is key

Thorough preparation is necessary prior to a disciplinary hearing to ensure that a finding of guilt and any sanction imposed is unassailable. Once employers have made a decision to proceed to a disciplinary hearing, they must be thoroughly prepared regardless of whether the alleged transgression falls into the disciplinary code category styled as “less serious misconduct” or “serious/very serious misconduct”.

Employers often appoint senior managerial staff to chair and/or initiate a disciplinary hearing. There is nothing wrong with this approach when lesser transgressions are dealt with in a relatively informal manner.

 It is imperative, however, that staff members who are appointed to chair or initiate at a disciplinary hearing must have undergone appropriate training and must thoroughly understand the process to be followed.

External chairpersons and/or initiators can sometimes be appropriate

Most internal disciplinary hearings will not require the chairperson or initiator to engage extensively with the complexities of labour law. However, when an employee faces allegations of “serious” or “very serious” misconduct, the evidence might be complex, and questions of law may very well arise. In such cases, employers may well be advised to approach an external party to chair and possibly even to initiate the case. This is because the organisation’s own managerial staff might lack the ability to analyse and evaluate the evidence in order to make a proper finding on a balance of probabilities. Apart from this shortcoming, these staff members are typically not legally trained and are more frequently than not unaware of material developments in labour law. The failure to keep abreast with the latest legal developments is understandable. They have no reason to remain up-to-date with the latest case law as chairing and/or initiating hearings is not their core function.

The inability of the chairperson or initiator to properly analyse evidence or to apply the law correctly, however, invariably results in the dismissed employee turning to the CCMA or a Bargaining Council in an effort to get their job back.

Arbitration is a de novo process

Arbitration at the CCMA or a Bargaining Council is a de novo process, meaning that the case will be heard again from the beginning. The Commissioner considers the allegations – often referred to as charges – and evaluates the evidence given under oath to determine whether the dismissal was both substantively and procedurally fair.

The Commissioner does not kowtow to the employer. He or she makes a finding on what is placed before them during the arbitration, and the courts have repeatedly told us that the Commissioner’s sense of fairness determines the outcome.

Employers are often shocked by the outcome of unfair dismissal arbitrations

Employers are regularly quite shocked when they receive the arbitration award declaring that the dismissal of the employee was unfair, and which directs them to retrospectively reinstate the employee to the same position and on the same terms and conditions as those that prevailed at the time of the dismissal. Not only do employers then have to take the employees back into employment, but they also have to pay them their salary from the time that they were dismissed!  

Instead of asking themselves what went wrong at the disciplinary hearing, employers will often turn to the Labour Court in the belief that the Commissioner made a mistake. Sometimes they succeed in having the arbitration award set aside or remitted to be arbitrated by a different Commissioner, but when they don’t, the Labour Court instructs the employer perhaps at least two or three years later that they must retrospectively reinstate the employee, which is a bitter pill to swallow.

In conclusion, failure to thoroughly prepare for disciplinary hearings could lead to a protracted and very expensive exercise which ultimately leaves the employer disillusioned and with a bloodied nose. 

Compliance Matters (Pty) Ltd www.compliancematters.co.za