Ingrid Lewin

Ingrid Lewin is an admitted attorney and has acted as a Judge in the Labour Court. She was the first CCMA Convening Senior Commissioner for the Gauteng Province and as a full-time, part-time and accredited senior commissioner she has conducted conciliations and arbitrations for the CCMA and various private and public sector bargaining councils. Ingrid is a CD Direct panellist for whom she conducts mediations, arbitrations, facilitations and relationship-building initiatives. She has trained CCMA and bargaining council commissioners and continues to train government officials, managers, employees, shop steward, and trade union officials on all aspects of Labour Law and Labour Dispute Resolution.

The Labour Court, in an unreported decision (Bidvest Protea Coin (Pty) Ltd v Myeni and Others (JR1164/21) [2022] ZALCJHB 56 (15 March 2022)), has reminded employers and employees about the minimum requirements for procedural fairness in disciplinary enquiries, berating a CCMA commissioner’s finding that the employer’s disciplinary policy – an exact replica of Item 4  in the Code of Good Practice: Dismissal – was “a sheer repulsive repugnant travesty of the principles of fair labour practices as enshrined in section 23 of the Constitution.”

The Court’s starting point took us back just over 18 years to the following extracts from its decisions in Avril Elizabeth Homes for the Mentally Handicapped v CCMA & others [2006] 9 BLLR 833 (LC):

In Bidvest, the Court overturned the Commissioner’s award and found that the dismissal of the employee was procedurally fair because (a) the employer’s policy aligned with Item 4 of the Code and, (b) the employer had complied with the requirements of Item 4 of the Code by providing evidence that the written misconduct enquiry form and the notification of suspension form clearly indicated what the rights of the employer were and the employee was:

• given written notice of the charges she faced;
• advised of her right to submit documentary evidence;
• advised of her right to be represented;
• provided with an opportunity to prepare a written response;
• not deprived of her right to call witnesses or to present material evidence;
• provided with a written outcome;
• advised of her right to refer the matter to the CCMA.

However, this judgment does not give employers licence to do away with their existing disciplinary procedures which set out the elements of due process.  As Prof Alan Rycroft and Bruce Robinson pointed out in a recent Worklaw webinar:

• A hearing before an impartial chairperson that provides for management and employee witnesses to say what they saw, heard, observed etc, and to be questioned on their versions, gives management the best chance of arriving at the truth of what happened thus providing the best chance to decide disciplinary matters fairly.
• Circumventing the process and merely allowing an employee to make written representations is likely to lead to a greater sense of unfairness by aggrieved employees, leading to an increased number of disputes being referred to arbitration.
• If the parties’ versions are not fully canvassed internally, this may lead to an increased number of management decisions being overturned once the issues are fully canvassed at arbitration.
• Where, for example, disciplinary procedures are contained in a collective agreement, they cannot be changed unilaterally.
• The Judge’s comment in Bidvest that the evidence, in this case, did not show that the employee was deprived of the right to call witnesses or to present material evidence is also a clear indication that the calling of witnesses and the presentation of material evidence in a disciplinary enquiry is a necessity.

They conclude with the following:

Another “Back to Basics” decision can be found in the judgment of Kathree-Setloane AJA who ruled, in Engen Petroleum Ltd v Chemical, Energy, Paper, Printing, Wood and Allied Workers' Union and others [2023] 1 BLLR 18 (LAC), that employers are not required to label charges of misconduct in a technical manner. In this case, the Court quoted the following extract from Pilanesburg Platinum Mines (Pty) Ltd v Ramabulana [2020] 1 BLLR 24 (LAC):

And, whilst dealing with the question of how charges should be framed, it is worth recalling the decision in EOH Abantu (Pty) Limited v CCMA and others [2019] 12 BLLR 1204 (LAC) where the Court found that charges of misconduct need not include all competent “verdicts” that may flow from the charge. Here, the employee was dismissed for providing his girlfriend’s mother with a computer which the employer’s client (a bank) had purchased for its exclusive use. He was charged with ‘theft, fraud, dishonesty or the removal of unauthorised material from the bank’. However, on the evidence presented, he was found guilty of gross negligence and dismissed. The Commissioner found the dismissal substantively unfair because the employee had been charged with intentionally disclosing the information and there was no proof that the employee had acted dishonestly. The Labour Court found that the award was reasonable and dismissed a review application.

In upholding an appeal, the LAC made the following points relative to disciplinary charges.

• A key element of fairness in disciplinary proceedings is that accused employees must be made aware of the charges they face.
• Charges must normally be given to the employee before the hearing and must be specific enough to be answered.
• Provided that a workplace rule has been shown to have been contravened and no significant prejudice flowed from the incorrect characterisation of the offence, an appropriate sanction may be imposed.
• It is enough for accused employees to be informed that on a particular date they were alleged to have acted wrongfully or in breach of applicable rules or standards.
• There is no requirement that other competent verdicts must be reflected in the charges.
• The test for prejudice is whether the defence to the allegation was the same.
• The Commissioner’s finding that it was not possible to “convict” the employee of negligence was thus a material error of law.

From this, I would suggest that disciplinary enquiry chairpersons, when analysing the evidence presented in the enquiry and deciding on a sanction, ask themselves, irrespective of the name given to the charge in the notice to attend the enquiry, whether:

• the employee has breached a known, reasonable and consistently applied workplace rule/policy;
• the employee was given sufficient opportunity to prepare a defence on the facts contained in the charge; and
• if the employee is guilty of breaching a known, reasonable and consistently applied workplace rule/policy, the sanction suggested by the employer is appropriate in relation to, first and foremost, the proven facts, the employer’s disciplinary code and the mitigating and aggravating factors presented.