Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

D: How to Approach Procedural Fairness

If there is no workplace disciplinary procedure
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(59)If there is no workplace disciplinary procedure, the Code must be applied subject to any departures that may be justified by the circumstances.

 

(60)Item 4 of the Code contemplates an investigation into the misconduct that includes an inquiry, which need not be formal. The Code does not contemplate a criminal justice model incorporating formal charge sheets,16 formal procedures for the leading and cross examination of witnesses, formal rules of evidence, legal representation and independent decision-making. The Code contemplates a flexible, less onerous approach. The fairness of an inquiry conducted by an employer without workplace procedures must be tested against the five requirements for procedural fairness contained in Item 4.

 

(61)In determining procedural fairness in the absence of workplace disciplinary procedures, the relevant facts should be summarised and analysed under the followings heads: 17
(61.1)The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand. The notice must be clear and comprehensible to enable the employee to respond to it. The notification may be oral or in writing. The objective of this requirement is to ensure that the employee is reasonably able to state a case in response. The fairness of the notification should be tested against that objective.
(61.2)The employee should be allowed a reasonable time to prepare a response to the allegations. Reasonableness will depend on the complexity of the allegations and the nature of the factual issues that need to be canvassed. Giving less than a day to prepare a response will in most cases not be reasonable.
(61.3)The employee should be allowed the assistance of a trade union representative or fellow employee in preparing a response and in stating a case in any enquiry. The right to assistance by a trade union representative applies only if the trade union has been granted organisational rights to have elected representatives for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if he or she is a fellow employee.
(61.4)The employee should be given the opportunity to state a case in response to the allegations. This can be done in writing or in a meeting and there is no requirement to hold a formal hearing.18 If the employer holds a formal hearing, then it should be conducted in a manner that properly permits the employee to state a case. The determining factor in assessing the fairness of the hearing is whether the employee was given a proper opportunity to state a case. In some cases that will mean being given the opportunity to call and question witnesses, in others it may mean no more than giving an explanation. The duty to give an employee an opportunity to state a case is not affected by who hears the case. Accordingly, it is not unfair for an employer to use the services of a third party, such as an attorney or an arbitrator, to conduct the hearing. (The identification in the Code of the determining factor ("the opportunity to state a case") in respect of an inquiry means that the jurisprudence developed by the courts under the 1956 LRA has limited application in the assessment of procedural fairness of an inquiry in the form of a hearing under the Code.).
(61.5)The employer should communicate the decision taken, preferably in writing, furnish the employee with the reasons, and, if dismissed, remind the employee of the right to refer a dispute to the CCMA, a council with jurisdiction, or in terms of any dispute resolution procedure in a collective agreement.

 

(62)The Code permits an employer to dispense with the procedures provided for in the Code in exceptional circumstances. These may include what have been termed 'crisis zone' cases, where the employer acts to protect lives and property. Procedures might also be dispensed with in cases such as a refusal or failure to state a case or absence without leave or explanation. 19 In these circumstances, the employer may make a decision on the merits of the allegation without the employee having stated a case in response.

 

(63)Departures from the guidelines in the Code should be justified. For example, the opportunity to state a case in response to an employer's allegation of misconduct should ordinarily precede any decision to dismiss. If an employer, after making a decision on the merits without affording the employee the opportunity to state a case, offers an employee the opportunity to state a case afterwards but before someone who was not involved in the first decision, and who is independent, impartial and authorised to make a fresh decision, a departure from the norm may be justified.

 

(64)If a commissioner finds that the procedure was defective, the arbitrator should determine whether the defect was material. The seriousness of the defect should be taken into account when determining compensation for procedural unfairness.

 

 

16Mutual Construction Co Tvl (Ply) Ltd v Ntombela NO & Others (LAC) at para 41.
17See item 4 of Schedule 8 to the LRA (Code of Good Practice: Dismissal).
18Nitrophoska (Pty) Ltd v CCMA & Others (LC) emphasises that the requirement for formal procedures is less significant in the case of senior managers (at paras 16-19).
19Where 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 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. South African Broadcasting Authority v CCMA (LAC) at para [15] This decision was followed in Jammin Retail (Pty) Ltd v Mokwane & Others (LC) in which it was held that the contracts of employees in the private sector may not be terminated by operation of law after an unauthorised absence of a pre-determined period; an employer is obliged to make a reasonable effort to give effect to the principle of audi alteram partem.