Disciplinary Enquiries are not Criminal Trials
By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys
On 2 March 2016 the Labour Court delivered judgment in BEMAWU & Others v SABC & Others (J2239/2015)  SALCJHB 74. The application was brought by BEMAWU, a trade union, on behalf of 35 of its members. It sought to interdict a disciplinary process in which the SABC intended to take disciplinary action against approximately 100 employees who were allegedly involved in perpetrating fraud against the SABC Medical Aid Scheme.
In light of the substantial number of employees, the SABC intended to use a disciplinary process which differed from that which was set out in its disciplinary code. Its disciplinary code provided for individual hearings, chaired by three chairpersons and the leading and cross-examination of oral evidence. I
n the present matter, the SABC had adopted a process where individual employees are presented with allegations in writing and are permitted an opportunity to respond thereto in writing. Those responses would then be considered by a chairperson from an independent dispute resolution agency and he or she will be required to determine whether or not the individual employees committed the misconduct or not.
If an employee is found to have committed the misconduct, that employee will be given an opportunity to make further representations in respect of the sanction which should be imposed on them. The chairperson would then make a recommendation to the SABC based on those further representations. BEMAWU argued that the departure from the disciplinary code was unfair and should be interdicted.
The Court was however not convinced that the matter was in fact urgent and accordingly struck the matter from the roll. It nevertheless made various observations in regard to the issue of the disciplinary process followed by the SABC, as it had been addressed on those issues by the parties’ legal representatives.
The Court found that the process envisioned by the SABC ensured that discipline would be exercised fairly and in accordance with the rules of natural justice, even though the process adopted by the SABC differed from the process it would normally follow.
It held that it would be unworkable to expect the SABC to convene separate enquiries, call witnesses and present evidence in respect of 100 or so employees. The Court found that simply because the SABC had deviated from its disciplinary code, it did not mean that the process was not a formal disciplinary hearing. The process satisfied the requirements set out in the seminal case of Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC) where the Labour Court found as follows:-
“The balance struck by the LRA thus recognises not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits. Where a commissioner is obliged (as commissioners are) to arbitrate dismissal disputes on the basis of the evidence presented at the arbitration proceedings, procedural requirements in the form that they developed under the criminal justice model are applied ultimately only for the sake of procedure, since the record of a workplace disciplinary hearing presented to the commissioners at any subsequent arbitration is presented only for the purpose of establishing that the dismissal was procedurally fair. The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee.”
It is clear therefore that the Labour Court favours simplicity in respect of disciplinary proceedings. Overly technical or elaborate disciplinary enquiries are more akin to a criminal justice model which is not part of the Labour Relations Act 66 of 1995.
Employers should remember these principles when drafting or amending disciplinary codes and when preparing for disciplinary enquiries.
For more information please contact Neil Coetzer at firstname.lastname@example.org or (011) 783 8711 /(011) 048 3000
Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za