The Consolidated Employers Organisation, being the voice for employers, is deeply invested in the sustainability of our members.  We, therefore, choose to keep your business up to date with legal developments and principles, both old and new, that underpin South African labour law to save you time, energy and money.

When an employee commits a workplace infraction, tensions can run high, especially if that workplace is unionised.  Pressure can come from all directions to force the employer’s hand to decide on the continued employment of the infringing employee.  This was the case in the recent Labour Appeal Court decision of Anglo-American Platinum Ltd v Beyers [2021] ZALAC 16.

The employee, Beyers, was employed as a Senior Electrical Foreman.  The rule in the workplace is that all machinery and equipment must be locked up and isolated to ensure that mine health and safety standards are adhered to.  Mr Beyers breached this rule by not following this “lockup” procedure.  A disciplinary hearing was convened, and the chairperson recommended a final written warning as a sanction, accompanied by a training course to ensure that a breach of procedure does not happen again.

After the disciplinary hearing, once Beyers completed the training course, the National Union of Mineworkers (NUM) queried why Beyers was not dismissed because employees who were members of NUM had committed the same infraction but were dismissed.  NUM accused the employer of inconsistency.

The employer then convened a “review panel” to ascertain if the sanction of a final written warning was appropriate.  Expectedly, the “review panel” returned with a sanction of dismissal.  The employee was aggrieved and referred the matter to the CCMA, who found that his dismissal was fair.  Still aggrieved, the employee proceeded to the Labour Court, which found that his dismissal was unfair.  Finally, the case came before the Labour Appeal Court.

The Labour Appeal Court acknowledged that the law does recognise that there may be instances where an employer may convene a second disciplinary hearing if the employer is dissatisfied with the sanction of a disciplinary hearing.

However, the court mentioned importantly that “in labour law, fairness and fairness alone, is the yardstick as to whether an employer can convene a second disciplinary hearing.”  In this case, the employer could not prove that exceptional circumstances warranted a second hearing. Neither could the employer prove that its disciplinary code or practices allowed for a second hearing.  Most importantly, the employer did not prove that a breach of the “lockup procedures” always carried a penalty of dismissal.

The Labour Appeal Court explained that the concept of “fairness” will depend on the circumstances of a case and applies to both the employer and the employee.  Fairness requires the balancing of competing and conflicting interests.  In this case, the employer knew fully well that the employee was given a final warning and asked to attend a training course.  Only when the trade union queried the dismissal did the employer seek to reconvene a hearing and ultimately dismiss the employee.  This was arguably unfair as the employer chose to dismiss based on the complaint of an external organisation.  The reality is, four years after Beyers’s dismissal and after going to the CCMA, Labour Court and ultimately the Labour Appeal Court, a significant amount of money was spent on litigation, with the result still being that Beyers was reinstated into his job with back pay.

Although the tension and pressures of the workplace in an unionised environment can result in employers making a haphazard decision, it is ultimately the employer who bears the cost of legal fees and reinstatement with backpay.  Employers are therefore urged to seek advice from the Consolidated Employers Organisation to avoid these undesirable outcomes.

Article by: Shakti Jainarain
Senior Dispute Resolution Official – Durban