What rights does an employee have prior during and an after an internal disciplinary enquiry

It is amazing how many employees do not know that he or she has a right to a disciplinary enquiry that is procedurally fair.

Remember, the employer has no right to ambush the employee during an internal disciplinary enquiry.

It is settled law that an employer must prove the employee’s guilt on a balance of probabilities. In layman’s terms, all that an employer must do is to demonstrate through documentary evidence and direct testimony that its “story” is more probable, namely the proverbial 50 plus 1 %.

The premise of this article is to look at procedural fairness pertaining to disciplinary enquiries, and therefore we need to have appreciation for Item 4 – Fair Procedure to Schedule 8 Code of Good Practice: Dismissal, as well as the Court’s finding in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others.

ITEM 4 – FAIR PROCEDURE TO CODE OF GOOD PRACTICE: DISMISSAL –

1. Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
2. Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
3. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
4. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.”

Item 4 does not apply where parties have an agreed disciplinary process. In Highveld District Council v CCMA, however, the Labour Appeal Court held that, where parties agree by collective agreement to a disciplinary procedure, the fact of their agreement will ordinarily go a long way towards proving that the procedure is fair as contemplated in s 188(1)(b). The mere fact that a procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed does not in itself mean that the procedure actually followed was unfair.

AVRIL ELIZABETH HOME FOR THE MENTALLY HANDICAPPED V CCMA & OTHERS:

The requirements of the Code were explained as follows in Avril Elizabeth Home for the Mentally Handicapped v CCMA:

“[w]hen the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement.”

Regarding the approach taken by the Labour Relations Act of 1995 in respect of procedural fairness, the Labour Court said the following:

• The new rules (introduced in 1995) of procedural fairness do not replicate the criminal justice model;
• There is a recognition that managers are not experienced judicial officers;
• Workplace efficiencies should not be unduly impeded by onerous procedural requirements;
• If we keep the “criminal justice” model of disciplinary proceedings, we would be duplicating essentially the same process (an initial hearing followed by an arbitration) — with no tangible benefit to either the employer or the employee;
• The essence of the disciplinary hearing is a dialogue between the employer and the employee and an opportunity for reflection before any decision is taken to dismiss the employee.

These are the essential principles of procedural fairness as set out by the Labour Court in this judgment:

“In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement (see item 4(1) and (3)).”
These remarks should not be seen in isolation — the Labour Court clearly appreciated the connection between the employer’s disciplinary hearing and the subsequent arbitration:

• For employees, true justice lies in expeditious and independent reviews of the employer’s decision to dismiss (with reinstatement the primary remedy);
• Arbitration was intended to promote rational decision-making by employers in respect of workplace discipline;
• The introduction of compulsory arbitration in 1995 was a recognition of the fact that the elaborate procedural requirements developed (largely by the Industrial Court) were in fact inefficient and inappropriate.

In light of the aforesaid, the following rights are deep-rooted within the essence of procedural fairness pertaining to disciplinary enquiries, namely:

→ It has been explained to him or her that he or she may present his or her own evidence by giving his or her own testimony;

→ He or she has the right to be represented by a co-employee or a member of a representative trade union;

→ He or she has been informed that he or she has the right to bring witnesses and present material evidence;

→ He or she has received all material evidence that the employer is going to submit prior to the hearing;

→ He or she has been informed that he or she has a right to cross-examine witnesses brought by the employer after they have testified;

→ He or she has been informed of his or her right to testify;

→ He or she has had adequate time to prepare;

→ It was explained to him or her that he or she has the right to an interpreter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Written by Jaques Bloem
05 March 2018.