Many employers labour under the impression that a formal disciplinary hearing must be held before dismissing an employee for misconduct and that failure to do so will amount to a procedurally unfair dismissal.
The Labour Relations Act, however, does not require such a stringent approach and case law supports this view, especially where compelling evidence and circumstances exist.
Item 4 of Schedule 8 of the Code of Good Practice on Dismissals describes the fair procedure to be followed by an employer in the event that dismissal is contemplated:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken”.
Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);  9 BLLR 833 (LC) confirmed this by holding that the employer was merely required to conduct an investigation, give the employee or his/her representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
The recent Furniture bargaining council decision of National Union of Furniture & Allied Workers South Africa obo Javulani // Dreamworx Bedding (Pty) Ltd, the court reaffirms this viewpoint.
In this case, the employee was accused of inciting violence in the workplace, bullying colleagues, abusing female staff and threatening the lives of colleagues, making explicit death threats against foreign employees in the employer’s workplace. The employer did not hold a disciplinary hearing but convened a meeting with the aggrieved employees to investigate the allegations. After said meeting, the employer convened another meeting at which these complaints were presented against the accused employee. The employer found the accused guilty of these accusations and dismissed him. Subsequently, the employee referred an unfair dismissal dispute to the Furniture Bargaining Council.
The employee did not challenge the complaints raised against him, other than to allege that all complaints were supposedly untrue. Taking into consideration the consistency of his colleagues’ versions, his denial of the allegations were found to be untrue on a balance of probabilities. The Bargaining Council found that an employee who was found guilty of such allegations, had been fairly dismissed even without a formal disciplinary hearing being held or the employee being formally notified of the holding of a meeting to discuss the allegations against him.
Taking the above into consideration, the employee was not entitled to insist on a formal disciplinary hearing or to receive notice to prepare.
In terms of the Labour Relations Act, an employer is only obliged to notify the employee of the allegations using a form and language that the employee will understand. Therefore, said notification does not have to be in writing. Further, the employee should be allowed a reasonable period to prepare a response to the allegations. However, should the matter be relatively uncomplicated, and the employee would be able to respond to the allegations, there exists no reason why a lengthy period of notice should be given. The employee should also be afforded the right to the assistance of a trade union representative or co-employee.
Although a formal disciplinary hearing is not required, we advise our members to seek advice from labour experts before terminating the employment relationship. Any consultation, regardless of the formality thereof, should observe the laws of natural justice, which include allowing the other party to present a response to the allegations.
Article by: Carine van Blerk
Dispute Resolution Official – Cape Town