Procedural fairness is the yardstick by which employers’ pre-dismissal actions are measured. Section 188(1)(b) of the Labour Relations Act (hereinafter referred to as the LRA) requires that a dismissal must be affected in accordance with a fair procedure. In terms of section 193(2)(d) of the Labour Relations Act, an employee whose dismissal is only procedurally unfair cannot be reinstated.
Item 4 of the Code of Good Practice on Dismissal (the code) sets out several guidelines for a fair procedure in alleged misconduct cases. Section 188(2) of the LRA specifically requires that the fairness of a dismissal must be judged against the guidelines of the said Code.
Item 4(1) requires the employer to conduct an investigation to determine whether there are grounds for dismissal. The investigation does not need to be a formal inquiry.
The code further requires that the employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
The charge should be in writing and in the language which is commonly used in the workplace. If the employee is illiterate, the employer should read and explain the notice to the employee. The charge levelled against the employee must be phrased in such a way that the employee will know which rule he/she is accused of having transgressed.
There are a number of aspects relating to the content of the notice and the handling of the notice that requires attention
- The first being the amount of information the employer must provide the employee. As a rule, employers should provide, not only details of the charges levelled against the employee, but also give some indication of the facts surrounding the disciplinary offence.
- A change prior to the disciplinary hearing and even at the outset of the hearing may be acceptable, subject to the potential prejudice to the employee, which may be addressed through a postponement. The employer may not simply amend the charge during the process and proceed without the consent of the employee.
- A mistake commonly made by employers, due to the fact that a singular instance of misconduct may be seen as a contravention of more than one rule in the employee’s disciplinary code, is to charge the employee with multiple offences which stem from the same act of misconduct. While it is acceptable to charge an employee with more than one charge based on one incident, this may only be done in the alternative, meaning that the employee may only be found guilty of one charge. Employers should take care to avoid splitting of charges or repeatedly charging for the same incident.
- The last issue relates to whether employers may charge an employee for a second time with the same offence after he/she was found not guilty at a previous disciplinary hearing. This issue is commonly referred to as double jeopardy. Generally, employers are not allowed to do this, but the courts have pointed out that this is not a hard and fast rule and whether a second disciplinary hearing would be fair depends on the circumstances. For example, it was held that where new evidence had come to light after the first enquiry, it was fair of the employer to institute a second enquiry.
The code provides further that the employee should be allowed the opportunity to state a case in response to the allegations. This is the core of procedural fairness in the context of dismissal for misconduct, namely that the employee be given a fair opportunity to state his/her case in response to the charges levelled against him/her. This principle is known in terms of the common law as the audi alterem partem (to hear the other side) rule.
The employee should be entitled to a reasonable time to prepare a response to the charges levelled against him/her. The question of whether the employee was afforded sufficient time to prepare is a factual one. The nature and complexity of the charges will be relevant in ascertaining whether the employee had sufficient opportunity to prepare his/her response. It is generally accepted that the employee must be given at least 48 hours’ notice.
The employee is entitled to the assistance of a trade union representative or fellow employee during the disciplinary hearing. In terms of the LRA, a trade union representative is defined as a member of the trade union who is elected to represent the employees in a workplace. An employee may therefore be represented by a trade union representative, commonly known as a shop steward. Fellow employee is a broad term, which could include a colleague, supervisor or even a director of the company for which the employee is working, provided that the director is also an employee of the company.
The code does not make provision for assistance by a legal practitioner. The chairperson must exercise his discretion in a fair manner considering the complexity and difficulty of the charges levelled against the employee. The right to representation is also available to senior managerial employees even though they may be capable of conducting their own defence.
Finally, the Code requires that after the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with a written notification of that decision. Further hereto, if the employee is found guilty, the employer must inform the employee of the sanction. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
Article by: Porthri Blauw
Dispute Resolution Official – George