During an arbitration, an employee would often raise as a defence that a final written warning was issued unfairly or without reason and therefore should not be considered by the Commissioner when issuing an award. Should this line of argument be entertained, and what is the CCMA’s stance?
The matter of Kock v Commission for Conciliation, Mediation and Arbitration and Others (2019) 7 BLLR 703 (LC) sheds some light on this. The Applicant in this matter received a final written warning for insubordination in that she failed to participate in an internal company process despite being instructed to do so. This warning was never challenged by the Applicant, either internally or as an unfair labour practice to the CCMA. A couple of months later, the Applicant was charged again for insubordination in that she failed to adhere to the official working hours despite being instructed to comply with the same. The Applicant was dismissed, referred an unfair dismissal to the CCMA and lost the arbitration.
The Applicant then took the arbitration award on review on the basis that the CCMA Commissioner failed to consider the Applicant’s evidence about the validity and/or fairness of the final written warning. The Applicant claimed this deprived her of a full opportunity to state her case.
The Labour Court held that the Labour Relations Act draws a clear distinction between dismissal disputes and unfair labour practise disputes and that Section 186(2)(b) of the Act stipulates that an unfair labour practice is any disciplinary action short of dismissal – this would obviously include a final written warning. What this means is that the basic nature of the dispute in the case of a dismissal dispute, on the one hand, and an unfair labour practice dispute on the other, is simply not the same.
The Court further held that each has its own distinct dispute resolution process and that a final written warning must be specifically challenged as an unfair labour practice. The Court, therefore, concluded that the final written warning had already been issued and could not now be challenged in the dismissal dispute. The application for review was accordingly dismissed.
Therefore, if a warning is not challenged prior to an arbitration for dismissal, the employer is entitled to rely on it during the arbitration. Under no circumstance should an employee be allowed to argue the validity of a warning that was not previously challenged during an unfair dismissal dispute.
Article by: Ruaan Heunis
Dispute Resolution Official – East London