Re-hearing disciplinary enquiries requires caution
Every once in a while, employers are tempted to hold a second disciplinary enquiry on the same issue forming the basis of a prior enquiry. Although this is not a common practice, there are a number of reasons why an employer would consider re-hearing a disciplinary enquiry.
Firstly, the employer may have established that there were important procedural defects during the initial enquiry, thereby justifying the complete re-hearing of the case. A second reason why an employer may wish to re-hear a case occasionally relates to some form of management dissatisfaction with the manner in which the initial enquiry was conducted; more often than not, this relates to upper management wishing to impose a more severe penalty than that imposed in the first enquiry.
One of the first reported decisions addressing this issue was the Industrial Court (IC) matter between Amalgamated Engineering Union of SA v Carlton Paper of SA (Pty) Ltd. The circumstances of this case were that three employees received final written warnings for fighting; two months later, the employer cancelled the original hearings (and final written warnings), re-heard the cases and changed the sanction to one of dismissal.
The IC was required to determine whether or not the managing director’s decision to cancel the original proceedings and findings and to reconstitute the enquiry constituted an unfair labour practice, and to assess whether or not the original investigation and enquiries were open to review.
The IC found that “This court considers that it is unfair for senior management two months after a decision has been made by a properly constituted tribunal set up in terms of the company’s disciplinary procedure to set it aside and to subject the employees concerned to a new enquiry, at least where the facts had been adequately canvassed and the procedures in the company’s own code ..”.
More recently, the Labour Appeal Court in Johannesburg published a judgement in the matter between BMW (SA) (Pty) Ltd and L. van der Walt (Case No. JA 10/99 – dated 18 November 1999) which addressed the same subject.
This judgement submitted that “Whether or not a second disciplinary enquiry may be opened against an employee would … depend upon whether it is, in all, the circumstances, fair to do so”.
Commenting on the validity of an employer subjecting an employee to a second disciplinary enquiry, Judge Zondo listed what he considered to be advantages and disadvantages of employers being permitted to subject employees to a second disciplinary enquiry. The advantages of not permitting employers to re-hear cases included, in the opinion of Zondo;
1. it would encourage employers to conduct thorough investigations first time around and promote efficiency;
2. it would promote certainty;
3. it is unlikely to create instability and labour unrest;
4. it would be cost-effective;
The disadvantages of this approach were considered to be that:
1. new evidence acquired subsequent to the first hearing would not be able to be admitted;
2. a miscarriage of justice could arise;
3. an employment relationship may have to endure which is problematic due to new evidence having been acquired but not admitted.
In the final analysis, the re-hearing of disciplinary enquiries should be addressed with extreme caution. That is not to say that this practice does not warrant consideration from time to time. It would however be more acceptable if the practice was provided for in the company’s Disciplinary Procedure.
Follow Tony on Twitter at @tony_healy
