The Labour Relations Act (LRA) in South Africa goes to great lengths to provide employees and employers with a structure they can use to address matters around conduct and discipline. However, since the LRA and Commission for Conciliation, Mediation and Arbitration (CCMA) came into existence, a perception exists that disciplinary matters are events of almost last resort because of their cost in time and money.
While many employees and employers might believe disciplinary hearings are slow, there's legal backing for faster resolutions. The Constitutional Court, as ruled in Stokwe v MEC: Department of Education, has confirmed that disciplinary hearings should be prompt and concluded in the shortest possible time. The reason is that shorter disciplinary hearings would save employers and employees time and money. However, a question arises: how do we get there?
We begin by acknowledging that a fair and disciplinary process doesn't require elaborate formalities or resemble a criminal trial, as highlighted in Item 4(1) of the Code of Good Practice: Dismissal. This view was confirmed in 2006 by the Avril Elzabeth Home for the Mentally Handicapped v CCMA & others court case, where the court found that "true justice" for workers "lies in a right to an expeditious and independent review of the employer's decision to dismiss". The Avril Elizabeth case emphasises that a chance to be heard is central to a fair dismissal process, not rigid adherence to formalities.
Departure from procedure does not mean that the procedure is unfair
What muddies the waters is if an organisation is committed to a formal approach in its own disciplinary code, collective agreement, employee contract or practices. Typically, an employer is bound to apply a formal procedure to disciplinary enquiries if that procedure is agreed in practice, contact, or agreement.
From afar, many employers and employees may assume that if an agreed-to procedure is not followed, that procedure is immediately unfair. In fact, both may be true, a procedure may not have been followed, but it can also be fair depending on the circumstances.
The risks for employers are disciplinary procedures incorporated into an employee's employment contract or collective agreement. Departure from a procedure, in this instance, can be a breach of these employment contacts and agreements.
Different paths to fairly and transparently shorten the disciplinary process
There are several ways employers and employees can shorten disciplinary proceedings, with each example found in South African law:
- Shorter proceedings can be discussed with the employee first;
- Conducting an enquiry through written representations;
- Mass hearings for group misconduct;
- Collective representations through trade unions in cases of group misconduct;
- Precautionary suspension without pay to curb unnecessary delays; and
- Pre-hearing minutes can be used to shorten disciplinary hearings with certain facts agreed upfront.
To end where we began, Section 188 of the LRA states that a dismissal is fair if it occurs for a fair reason and by fair procedure.
To this end, an employer can investigate to understand, if there are grounds for dismissal which does not need to be a formal inquiry. The employee in question should be told about the allegations against them in a language that is easily understood and allowed the chance to respond to the allegations in a reasonable time. A trade union representative or a fellow employee can also assist the charged employee.
After the inquiry is complete and the employee's response is in hand, the employer should communicate the decision taken and ideally inform the employee with written notification of the decision.
In closing, the sooner disciplinary matters can be resolved in a manner that is fair to all parties, the better it is for the financial and mental well-being of all.
