The essence of a disciplinary hearing

Here on IR Network we’ve usually concentrated on issues relating to substantive fairness in the context of a misconduct dismissal. Some time ago, a speaker at a seminar made the statement that procedural fairness is no longer an issue — for employers, at least. He could not have been more wrong, of course. Even a cursory glance at the CCMA and bargaining council arbitration awards is sufficient to know that, from employees’ perspectives at least, procedural issues are often top of the list.

Much has been made about “proceduralism” (and it will no doubt be debated in the future as well). The main issue here is that the pre-dismissal procedures an employer is expected to comply with have become too formal; they resemble formal court proceedings (sometimes complete with exchanges of documents and pre-trial meetings), legal representatives are often involved, and issues of evidence are hotly contested. Lots of fun for everyone, of course, except for the chairperson of the hearing. One commentator has pointed out that considerable levels of skill and considerable knowledge and experience (even legal knowledge and experience) have now become necessary to chair a disciplinary hearing. Perhaps this is why more and more employers use specialists to chair their hearings (mind you, there are a number of so-called specialists out there that really should … but that is another story).

A welcome breath of fresh air (blowing in the opposite direction) is the decision of the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4 — a decision we looked at in a weekly comment in September 2006. The reason why its perhaps necessary to look at this decision again is because of the enthusiasm (and even unbounded joy) with which this decision has been welcomed.

As regards the approach taken by the Labour Relations Act of 1995 in respect of procedural fairness, the Labour Court said the following:

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The new rules (introduced in 1995) of procedural fairness do not replicate the criminal justice model.

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There is a recognition that managers are not experienced judicial officers.

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Workplace efficiencies should not be unduly impeded by onerous procedural requirements.

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If we keep the “criminal justice” model of disciplinary proceedings, we would be duplicating essentially the same process (an initial hearing followed by an arbitration) — with no tangible benefit to either the employer or the employee.

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The essence of the disciplinary hearing is a dialogue between the employer and the employee and an opportunity for reflection before any decision is taken to dismiss the employee.

These are the essential principles of procedural fairness as set out by the Labour Court in this judgment:

“In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement (see item 4(1) and (3)).”

These remarks should not be seen in isolation — the Labour Court clearly appreciated the connection between the employer’s disciplinary hearing and the subsequent arbitration:

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For employees, true justice lies in expeditious and independent reviews of the employer’s decision to dismiss (with reinstatement the primary remedy).

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Arbitration was intended to promote rational decision-making by employers in respect of workplace discipline.

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The introduction of compulsory arbitration in 1995 was a recognition of the fact that the elaborate procedural requirements developed (largely by the Industrial Court) were in fact inefficient and inappropriate.

As mentioned before, this case makes for interesting reading and there can be no doubt that it signals at least some sense that our blind faith in proceduralism has now perhaps gone a bit too far. But is this decision, on its own, sufficient to stem the tide and to strip away ten years of interpretation, habit, practice and perceptions? Just how realistic is the hope that we can change how we see procedural fairness?

Something to watch out for

This year’s edition of the Tokiso Review will be released within the next week or so. It contains some important analyses on the state of the South African dispute resolution system and draws some interesting conclusions. And the issue of “proceduralism” (is this really the best term we can come up with?) is also addressed in the report.