by Tony Healy | May 23, 2018 | Discipline & dismissal
I was posed a genuinely interesting question by a colleague last week. The scenario was as follows; if in a disciplinary hearing chairperson X, after delivering a verdict, becomes incapacitated, or even dies, prior to hearing mitigating and aggravating factors and selecting a sanction, can a new chairman (chairman Y) take over and address the question of sanction selection?
To begin with, it may not be too problematic to hear the case afresh if it is a relatively short matter with few complexities. But what if the verdict was the culmination of many days of evidence wherein the merits of the case are somewhat complex?
In such circumstances, the complete rehearing of the case could be unpalatable for either or both parties. This may be complicated by the challenge in recalling witnesses, especially if they are not employed by the employer. In addition, in the event of an external chairman, it is quite possible that chairman X was paid a handsome fee for his/her services, prior to their incapacitation. The notion of incurring a duplication of fees for an external chair may challenge the most liberal of employers.
So what does one do in these circumstances? At face value, there appears to be two distinct options. Either rehear the case afresh, or appoint a new chairman Y to complete the hearing from mitigation to sanction selection.
Rehearing the case has additional risks. What if chairman Y arrives at a different verdict to chairman X? Yes, the labour dispute resolution channels (CCMA etc) are available to bring the case to a head, but differing verdicts would none the less throw a spanner in the works in all likelihood, especially if chairman X found the employee not guilty and chairman Y found the employee guilty.
Would that entitle the employee to one more hearing (with chairman Z) to make it the best of three?(!)
After pontificating over this for some time, including mulling over it with two chums, a Senior CCMA Commissioner and a respected member of the Bar, we three wise men concluded that in the case of a chairman being required to abandon a lengthy case post guilty verdict and pre-sanction, there is no reason why a new chair cannot be appointed, with certain provisos.
To begin with, the new chairman (Y) should review the disciplinary hearing transcript to assess the merits of the original verdict. If s/he concludes that the guilty verdict seems unjust, the case should be reheard afresh.
If however the newly appointed chairman (Y) concurs with the original guilty verdict of chairman X, the original guilty verdict should be confirmed, and the new chairman (Y) should proceed to hear mitigating and aggravating factors as per normal and select an appropriate sanction in accordance with the normal sanction selection guidelines and principles.
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by Tony Healy | Apr 23, 2018 | Discipline & dismissal
Accidents with employees at the wheel of company vehicles do arise from time to time. However, in the Labour Appeal Court case of Edcon Ltd v Pillemer, the CCMA & 1 other (DA4/06), the court had to deal with a circumstance in which an employee’s son had an accident in a company vehicle. The primary issue in question however, was the burden placed on employers to prove an alleged breakdown in trust which warrants dismissal.
It was common cause that the employee knew that within twenty four hours of an accident, she was required to (1) report an accident to the police, (2) obtain a case number, (3) report the accident to her employer and the insurance company and (4) complete and sign an accident claim form. Furthermore, the employee was aware of the fact that in the event of an accident in her company vehicle, no repairs could be undertaken on the vehicle without the approval of the insurance company.
The employee’s husband repaired the vehicle in his panel beating workshop at his own cost. The employee did not report the accident, and initiated the repairs by her husband in the erroneous understanding that her son was not covered by the insurance policy, when in fact he was.
The employer got wind of the accident some six months later. The employee initially denied any knowledge of the accident when confronted by the employer, but subsequently confirmed it to be true. The employee had seventeen years service and was two years away from retirement.
The employee was charged with impacting on the trust relationship by not reporting the accident; she pleaded guilty and was found guilty, after which she was dismissed.
The employee successfully challenged the fairness of her dismissal at the CCMA which found the dismissal to have been substantively unfair as the employer had led no evidence that the employment relationship had broken down. The Labour Court dismissed the employers review of this award.
The Court was required to apply its mind to the employee’s contention that the sanction of dismissal, especially in light of her prevailing mitigating circumstances. It was further argued that there had been inconsistency in the application of the sanction in relation to similar offences in the past. The primary enquiry in the Appeal was however whether the Labour Court was wrong not to interfere with the award of the commissioner (ie: to vary the sanction).
The LAC judgment concluded that the employer had not proved the alleged irreparable breakdown in trust, not attached sufficient importance to the employee’s unblemished seventeen year record and imminent retirement.
The appeal was dismissed.
This case highlights the need for employers to substantiate an alleged irreparable breakdown in trust when raising trust as a factor justifying dismissal, or any other such severe sanction, is argued in aggravation.
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by Tony Healy | Apr 23, 2018 | Discipline & dismissal
Approximately 50% of all arbitrated alleged unfair dismissal cases resulting in it being held that the dismissals were indeed unfair, thereby begging the question – what blocks must be ticked to render a dismissal fair?
The ten requirements for a fair dismissal are:
1. Does the employer having sufficient proof of misconduct? Simply put, an employer is required to be able to prove that the employee is ‘probably’ guilty of the alleged misconduct.
2. The employer must prove the employee can be held blameworthy for, and committed, the act/omission. Employers frequently overlook the fact that it is not merely the alleged act or omission that must be proved. In order for misconduct to be proved, it must be proved that the alleged act or omission occurred, and that the employee can rightfully be held blameworthy for the act or omission alleged. For example, an employee can never be held blameworthy (or guilty) for having contravened a company policy if it cannot be proved that the employee had knowledge of that policy.
3. Are witnesses available and agreeable to testifying, and is other evidence available? An employee can only be found guilty on that proved at the hearing; this may or may not correlate with what the employer knows to be true. Documentary evidence should be handed to the employee prior to the hearing for their perusal.
4. The allegation(s) must be furnished to the employee clearly. The misconduct allegation(s) must be communicated to the employee in a form and language that the employee can reasonable understand.
5. Reasonable prior notice of the hearing. The employee must be afforded reasonable time to prepare for a disciplinary hearing. In practice, no less than 2 working days notice is considered reasonable.
6. Employees have a right to an interpreter and representation. The employer must afford the employee the right to an interpreter when they deem this necessary, and the right to an internal representative.
7. Right to submit a defence and cross-examine. All employees have the right to reply to the allegation(s), and challenge employer evidence, normally by way of cross-examination.
8. Mitigating factors. Employees found guilty have the right to submit factors in mitigation, prior to a sanction being imposed, and the right to have these submissions carefully considered by the chairperson.
9. Appropriate sanction. Sanctions must be appropriate. Put differently, the punishment must fit the crime, taking “the totality of circumstances” into consideration. The Labour Court occasionally refers to this aspect of sanction selection by imploring employers not to select a sanction which makes the court “whistle”.
10. Reason for dismissal & the right to refer to the CCMA or a Bargaining Council. Employees should be provided with the reasons for their dismissal, and informed of their right to refer then dismissal to the CCMA or a Bargaining Council with jurisdiction, within 30 days of the dismissal.
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by Tony Healy | Apr 6, 2018 | Discipline & dismissal
Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees. This also relates to the procedure employers should follow when an employee is arrested or detained by the South African Police Services for a lenghty period, after which they are released or fail to make bail.
The Labour Appeal Court (LAC) in SAMANCOR Tubatse Ferrochrome v MEIBC & others (Case No.JA57/08) addressed this conundrum providing some clarity.
In this particular case, the employee was arrested on suspicion of having committed an armed robbery. He informed his employer of this development and remained in custody, and was therefore absent from work, for approximately 150 days. The employer then dismissed the employee on grounds of incapacity in that “he was physically unable to tender his services”.
He was informed of his dismissal in writing by the employer, which was delivered to the employee at the Police station where he was being held.
On being released from custody, the employer held a post-dismissal hearing whereat it was held that the employer could not have been expected to put in place a temporary arrangement for such a lengthy period of time which would have enabled the employee’s position to have been kept open for him.
This was motivated by the fact that the employee held a key position (a furnace operator) and that the criminal case against the employee was still pending against the employee at the time of the post dismissal hearing. In addition, this was the second instance in which the employee had been arrested and thus been absent from work.
At a subsequent arbitration hearing, it was held that the dismissal of the employee had been substantively unfair in that the employer had not taken proper account of the fact that the employee had no control over his incarceration and its duration. In addition, the employee had not been afforded an opportunity to present his case prior to being dismissed.
The employer was then reinstated.
This finding was upheld on review at the Labour Court.
The LAC however adopted a different view to both the CCMA and the Labour Court. The LAC held that the concept of ‘incapacity’ may indeed have application in cases of incarceration. In such circumstances, an employer would be required to address the matter via an incapacity procedure.
This would entail assessing the extent of the incapacity including the temporary or permanent nature thereof and explore alternatives to dismissal.
Prolonged absence and the skilled nature of the employee’s position, as was the case in the LAC matter, would be compelling reasons warranting dismissal. The LAC went so far as to confirm that it cannot be the case that “incapacity which is outside the control of the employee cannot be a cause of dismissal”.
However, incarcerated employees must be afforded an opportunity to state their case prior to, not after, being dismissed. This could take the form of the incarcerated employee being invited to make submissions, if not in person, in writing, or via an appointed third party such as a family member or colleague.
It must be remembered that all employees must be afforded an opportunity to make representations to their employer, prior to any dismissal.
In the final analysis, as confirmed in the arbitration award in van Schalkwyk v Swissport South Africa (Pty) Ltd (case number WEGE1008-17), “In light of (case law) should a key employee be incarcerated for a lengthy period the employer should consider either retrenchment or dismissal for incapacity.”
This award also noted that “It was stated in Trident Steel (Pty) Ltd v CCMA and others (2005) ILJ 1519 LC that dismissal for absenteeism while the employee was incarcerated for an offence not related to the workplace was unfair. It was further stated in Maloma v Stemmett NO [2010] ZALAC 7 the employee held a key position as furnace operator and was held in custody for 150 days. He was eventually dismissed. When the employee referred his case to the CCMA the arbitrator found the employee had been unfairly dismissed as the employee had no control over his circumstances. On review the court found that the incarceration of the employee was a factor beyond his control and that he was not the author of his own misfortune.”
So its clear, addressing arrested and incarcerated employees requires employers to proceed with extreme caution. Dismissal is possible, but due process must be followed.
by Tony Healy | Apr 1, 2018 | Discipline & dismissal
Disciplinary procedures and codes, amongst other things, clarify the validity periods of varying degrees of disciplinary warnings (sometimes referred to as sanctions).
Validity periods vary from company to company; but typically verbal warnings are valid for three months, written warnings for six months, and final written warnings for twelve months.
The principle of progressive warnings is also long established, in the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired, valid warning, the subsequent sanction will be progressively more severe.
All things being equal, warnings are no longer valid after the expiry date, and therefore cannot be referred to as an aggravating factor at a later date.
Put differently, if I am found guilty of late coming today, and a prior final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.
That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction, in certain circumstances; caution must however be exercised.
There is case law which support the fact expired warnings may be taken into consideration in certain circumstances.
The Labour Appeal Court case of NUM obo Selemela v Northam Platinum Ltd [JA25.11] held that “ … even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so she committed an irregularity”.
The judgment more especially noted that “Indeed, the employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings”.
This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others [DA7/04] which held that “It must also be recalled that there was in existence a written warning dating from March the previous year with a twelve month duration. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. The employer is always entitled to take into account the cumulative effect of these acts (of misconduct) … to hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings”.
This suggests that warnings should be retained once they have expired.
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by Tony Healy | Mar 23, 2018 | Discipline & dismissal
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.
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