by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Disciplinary procedures typically have supplementary appeal procedures which make provision for employees who feel unjustly wronged by a disciplinary hearing to appeal the hearing verdict and/or sanction. But what if it is in fact the employer who feels aggrieved on completion of a disciplinary hearing.
It’s not beyond the realms of possibility that an employer objects to a disciplinary hearing verdict or sanction. Chairpersons are capable of rendering disciplinary hearing outcomes which are clearly ill considered. Employees have recourse via the employer’s appeal procedure, but the employer on the other hand is invariably faced with a conundrum when a hearing outcome is objectively inappropriate.
Our Courts have dealt with this state of affairs in the past, and did so once more in the Labour Court matter of Toyota SA Motors (Pty) Ltd v CCMA & 2 others [Case No. D276/10]. This case addressed, inter alia, the fairness, or otherwise, of convening a second disciplinary hearing in respect of the same alleged act of misconduct. Linked to this is the question of whether rehearing a case in regard the same act of alleged misconduct, amounts to double jeopardy.
In this case, in essence, the employee was originally issued a written warning for the misconduct he was found guilty of in an original disciplinary hearing, and subsequently dismissed when found guilty of the same offence in a subsequent rehearing of the case.
The employee deemed this to amount to double jeopardy. The CCMA Commissioner at the subsequent arbitration hearing agreed with the employee and held that his dismissal was substantively unfair on grounds that the employer had no right to rehear the case.
The Labour Court held, on the other hand, that “the test for determining when a fresh enquiry can be held is a matter of fairness and not whether exceptional circumstances exist”, or has been held prior “a second enquiry would be justified if it would be fair to institute it”.
In the Labour Appeal court case of Branford v Metrorail services (Durban) & others [2004], the Court held that “.. (i)t would manifestly be unfair for the company to be saddled with a quick ill informed and incorrect decision of its employee who misconceived the seriousness of the matter and hurriedly took an inappropriate decision leading to an equally inappropriate penalty.
That’s not to say that employer’s may simply rehear disciplinary hearings until they achieve a pre-determined outcome. It is also possible to incorporate a provision in appeal procedures for management to be entitled to appeal hearing outcomes. This may go some way to providing a solution for employers when faced with ill considered hearing outcomes.
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by Tony Healy | Jul 23, 2018 | Discipline & dismissal
All cases of alleged unfair dismissal are assessed on the basis of two criteria, substantive (which we look at next week) and procedural fairness.
Whilst an ex-employee’s remedy for procedural unfairness does not include reinstatement, what is available to an employee deemed to have been procedurally unfairly dismissed is financial compensation up to twelve months salary.
So it makes sense to ensure that a dismissal is not only effected for a fair reason, but has also been executed in a procedurally fair manner; but what does this mean? In short, it’s the ‘how’ of disciplinary hearings.
Well, to begin with, employers are required to ensure that they comply with their own disciplinary procedures. Put simply, employers must comply with any disciplinary procedure which has been compiled in-house and been profiled to all staff as the company Disciplinary Procedure. Any deviation will typically render any dismissal (procedurally) unfair, regardless of the substantive merits of the case.
Procedural fairness is a critical requirement of all disciplinary hearings in light of the fact that common law requires that any employee accused of committing an act of misconduct (ie: a blameworthy act or omission), must be heard before a verdict is arrived at.
It has been submitted that it stands to reason that an employee’s version must be known by the hearing chairperson prior to his or her fate being determined.
Written charges must be issued to an alleged offender in a form and language s/he understands; if interpreters are required for this purpose then so be it.
Next, the employee must be afforded sufficient time to prepare for a hearing, normally viewed as no less than forty eight hours written notice of the hearing.
The chairperson should be objective, with no vested interest in the verdict and/or sanction. Chairperson’s should bear in mind that although they essentially have unfettered authority and powers in a disciplinary hearing, their verdict and/or sanction may well need to withstand independent scrutiny by a (CCMA or Bargaining Council) Commissioner should the outcome be subsequently challenged as having been unfair.
Decisions taken by chairperson’s need not be perfect, but they must be reasonable and rationale.
Whilst a disciplinary hearing procedure need not be conducted in an overly technical manner, certain procedural protocols must none the less be observed. For example, witnesses should testify and be exposed to cross-examination.
Guilt is to be determined on the ‘balance of probabilities’, which simply means that the chairperson must determine whether or not the employer complainant has proved, or not, that the employee is ‘probably’ guilty of the alleged misconduct.
Should the employee be found guilty, an appropriate sanction must be selected. Sanctions are selected on the basis of the following criteria, (1) the gravity of the misconduct in question, (2) disciplinary code guidelines, (3) mitigating factors, and (4) aggravating factors.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee. Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing. There are a number of reasons for this.
To begin with, employers often accuse employee’s of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Secondly, terminology is used which is, on occasion, used inappropriately. For example, acts of misconduct are described as being of a gross nature when in fact the employer does not appreciate what distinguishes so-called gross misconduct from ordinary misconduct. In this regard it is not uncommon for an employer to compile an allegation of gross insubordination when in fact the employer cannot distinguish between ‘gross’ and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him’/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has in fact not furnished them with enough information in the charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The CCMA and Labour Court have been required to address numerous disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court prior thereto.
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”. Case law supplements this by providing that allegations must inform the alleged offender of what s/he is alleged to have done (or not done as the case may be) and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02) the commissioner held that “The charges should be specified with sufficient particularity to enable the employee to answer them. This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of correctional Services & others (1999) 20 ILJ 2416 (LC))”.
In short, the employee should not be expected to have to speculate what the precise allegations are being levelled against them.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Punctuality is a basic fundamental employment obligation. It’s taken as a given that when an employee enters into an employment contract with an employer, the employee is able to attend work on time. Two of the most basic of common law employment obligations which accrue to employees are come to work on time, and come to work often!
That’s not to say of course that unavoidable circumstances are unimportant. On the contrary, if an employee can prove that they were prevented from arriving at work on time for reasons beyond their control, the employer cannot treat such late-coming as being an act of misconduct.
Ordinarily, late-coming is a minor offence which should be responded to by employers with gradual, progressive discipline. Of course, if an employee arrives for work substantially late, it may well warrant dismissal even though it may be the first instance of late-coming, especially if the employee has short service and shows no remorse.
Our Courts have endorsed dismissal for a pattern on late-coming. In CEPPWAWU obo Motshene v Sandoz SA [Arbitration Case No. CHEM305-09/10] it was held that “ … the employee must not only come to work – he/she must come to work on time, and be at the workstation during the agreed hours – even if the employer has no work for him to do.”.
The Commissioner continued that “ .. when an employee fails to correct his conduct .. where his late-coming continued, it undermines the employer’s trust in him/her”. The employer cannot run a business when he cannot rely on the Applicant to be at work on time. This would in turn, break down the employment relationship. It is therefore unreasonable, under the circumstances, to expect the employer to carry on in such an employment relationship.”
Poor time-keeping would typically justify a verbal warning for a first offence, written warning for a second offence, final written warning for a third offence, and dismissal thereafter.
Employee justifications for late-coming must be assessed whether, or not, the employee can be deemed to have been at fault for the late-coming. Punctuality cases are, to some extent, easier to deal with that many other cases of alleged misconduct in that the employer’s evidentiary burden is minimal as the late-coming is easily identifiable.
Whilst employee’s may be faced with lengthy commutes to work, and increasingly frustrating traffic congestion, this does not ordinarily justify late-coming, unless of course a single unforeseen traffic accident for example hinders an employee’s ability on a given day to arrive at work on time.
More often than not, progressive discipline is headed by employees and punctuality materialises before the need to dismiss.
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by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Many employers will have been frustrated at times by employees presenting medical certificates covering the day or days on which the employee is required to attend a disciplinary hearing. It is of course quite possible that the employee is genuinely ill, and must be afforded time to recover from their ailment prior to attending a disciplinary hearing. However, on occasion, such medical certificates are merely an attempt to frustrate the continuation of a disciplinary hearing.
The question which rises in these circumstances is, can an employer continue with a disciplinary hearing when the employee being charged with misconduct has been booked of sick by way of an apparently legitimate medical certificate?
The conventional wisdom has been that the production of a medical certificate obliges the employer to put the disciplinary hearing on hold. The Supreme Court of Appeal (SCA) judgment, Old Mutual v Gumbi [2007] SCA, suggests that there are circumstances when an employer can justifiably proceed with a disciplinary hearing in the absence of an employee who has been booked off sick.
SA case law abounds with authority confirming that an employee who fails to take advantage of such an opportunity to be heard, cannot subsequently claim that their dismissal was procedurally unfair.
The Old Mutual SCA judgment addressed this very issue, concluding that disciplinary hearings may well, in certain circumstances, justifiably proceed in the absence of an alleged offender who has, at face value, a medical certificate booking them off sick for the day(s) on which the hearing is scheduled to proceed.
In this case, the employee was summonsed to a hearing after having become abusive toward and threatening to assault his superior when he was asked to explain claims for subsistence and travelling expenses.
The employee produced a medical certificate before the hearing which was, none the less, held in his absence. The employee was dismissed. However, Old Mutual reinstated the employee with a view to recharging him, after his representative made representations motivating that the dismissal be overturned, due to the fact that the employee could not attend the hearing due to illness.
The next day, the employee was issued notice to attend a fresh hearing.
After an adjournment, the employee furnished the hearing chairperson with a medical certificate which referred to “tension headache and enteritis”.
The chairperson adjourned the hearing for an hour to enable the employee to recover from his alleged headache. The employee and his representative refused to return to the hearing as they were of the view that the medical certificate entitled them to an adjournment.
The chairperson disagreed, and found the employee guilty in his absence and imposed the sanction of dismissal.
The judgment concluded that the employee “wanted to have the hearing aborted so as to prevent the fulfilment of a … fair disciplinary hearing”.
The dismissal was held to have been fair in that the employee had frustrated the fulfilment of the employer’s procedural fairness obligations.
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by Tony Healy | May 23, 2018 | Discipline & dismissal
Case law has, for some time now, established laid down procedures and requirements which must be followed when an employee absconds and the employer knows the whereabouts of the absent employee.
In circumstances where an employee absconds, deserts or sis simply absent without leave, employers frequently erroneously conclude that the missing employee has dismissed him or herself; nothing could be further from the truth. It is not possible for an employee to dismiss themselves; only employers can initiate dismissal.
To begin with, it is precisely for these kinds of cases, amongst many other good reasons, why an employer should know and maintain an employee’s personal information including their residential and/or postal address. There are times of course when employees move residence and do not inform their employer of this fact, but it is the employee not the employer who is negatively affected by this, as the employer is only ever expected to communicate with an employee at the address given to them by the employee.
So, if the employer corresponds with the employee at an outdated address, the employer cannot be held liable.
The primary case relied upon in directing employers as to how to address a scenario wherein an employee absconds is South African Broadcasting Authority v CCMA (2002), quoted recently in a Labour Court judgment addressing the question of, inter alai, dismissal on grounds of absence – Jammin Retail (Pty) Ltd v Mokwane & others (JR 2784/09).
The Jammin Retail Labour Court judgment unsurprisingly made reference to the SABC case in outlining the obligations employers have when contemplating the dismissal of deserters. This judgment quoted the SABC which held that “Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the Audi alteram partem rule (always afford the other party an opportunity to defend themselves) before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty”.
Put simply, this means that when an employee goes absent, and especially when the employee fails to communicate with the employer, the employer must attempt to find the employee. This is normally undertaken by corresponding with them at the address they have provided the employer; there is a presumption that this is the correct address and that registered mail to this address will be received by the employee.
A written notice to attend a disciplinary inquiry for the absence ion question should be posted registered mail to the employee inviting them to the inquiry.
If they do not attend, the inquiry may ordinarily be held in the employee’s absence as the employer has afforded the employee to state his or her case, but they have waived their right to do so by not attending.
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