Procedural fairness of dismissal for misconduct South African labour law

1 procedural fairness of dismissal misconduct

1.1 elements of procedural fairness

1.1.1 investigation
1.1.2 notice of charge , investigation
1.1.3 reasonable time prepare response
1.1.4 employee entitled state case in response
1.1.5 employee entitled assistance
1.1.6 decision
1.1.7 communicating decision
1.1.8 employee informed of reason dismissal
1.1.9 appeal
1.1.10 dispensing pre-dismissal procedures

procedural fairness of dismissal misconduct

section 188(1)(b) of lra requires dismissal misconduct must effected in accordance fair procedure, entails fair disciplinary enquiry. lra not regulate fair disciplinary enquiry. employer’s disciplinary code , procedure prescribes procedure followed , manner in hearing should conducted. code provides number of guidelines fair enquiry in item 4: not substitute disciplinary procedure merely template fairness of dismissal must judged.

normally, employer should conduct investigation determine whether there grounds dismissal. not need formal enquiry. employer should notify employee of allegations, using form , language employee can reasonably understand. employee should allowed opportunity state case in response allegations. employee should entitled reasonable amount of time prepare response, , assistance of trade union representative or fellow employee. after enquiry, employer should communicate decision taken, , preferably furnish employee written notification of decision.

discipline against trade union representative, or against employee office-bearer or official of trade union, should not instituted without first informing , consulting trade union. if employee dismissed, employee should given reason dismissal , reminded of rights refer matter council jurisdiction or commission, or dispute resolution procedures established in terms of collective agreement.

in exceptional circumstances, if employer cannot reasonably expected comply these guidelines, employer may dispense pre-dismissal procedures.

elements of procedural fairness
investigation

the purpose of investigation determine whether or not there grounds dismissal. investigation need not formal enquiry.

notice of charge , investigation

the employer must notify employee of allegations against him. employer must use form , language employee can reasonably understand. charge in writing , in language commonly used in workplace. notice of charge , of disciplinary enquiry given simultaneously , in same document

reasonable time prepare response

the question of reasonable time factual one. nature , complexity of charges relevant in ascertaining whether employee has had sufficient time. whether employee had assistance in preparing response relevant.

employee entitled state case in response

this core of procedural fairness in context of dismissal misconduct. employee may dispute facts on charges based, or may plead guilty charges argue dismissal not appropriate sanction.

employee entitled assistance

the employee entitled assistance of trade union representative or fellow employee during enquiry. trade union representative defined in section 213 of lra member of trade union elected represent employees in workplace (commonly called shop steward). fellow employee includes colleague, supervisor or director of company employee working, provided director employee.

the purpose of assistance is

to assist presentation of response charge; and
to ensure procedure followed during enquiry fair.

item 4(1) not provide assistance legal practitioner, such advocate or attorney, disciplinary codes provide legal representation under circumstances.

decision

the decision whether or not employee guilty of alleged misconduct, , sanction, responsibility of chairperson of disciplinary enquiry. disciplinary codes, however, provide chairperson may may recommendation senior management. latter must take final decision, differ chairperson’s recommendation.

an important question arises: can senior management overturn decision of chairperson or order second enquiry whether or not latter empowered code not merely make recommendation decide issue?

the court has indicated possible, subject limitations, , whether or not second disciplinary enquiry may opened depends on whether or not fair in circumstances.

the court has stipulated 2 cautionary remarks:

the important yardstick of fairness.

communicating decision

item 4(1) of code requires employer communicate decision taken, preferably in writing. both verdict , penalty must communicated.

employee informed of reason dismissal

item 4(3) of code requires that, if penalty dismissal, employee must given reason it, , must reminded of rights refer matter bargaining council jurisdiction, or ccma or dispute resolution procedure established in terms of collective agreement.

appeal

item 4 of code not make provision appeal higher level of management against outcome of disciplinary enquiry. if employee dissatisfied, must implement dispute-settling procedures provided lra. if, however, disciplinary code in workplace makes provision such appeal, employee entitled appeal in accordance code.

traditionally appeal entails re-hearing of entire matter, including evidence presented, , fresh consideration of appropriate sanction.

dispensing pre-dismissal procedures

item 4(4) stipulates employer may dispense disciplinary enquiry in exceptional circumstances if employer cannot reasonably expected comply requirement. 2 broad categories of exceptional circumstances are

waiver of right may assumed if

the employee’s conduct of such nature employer cannot expected hold enquiry;
the employee refuses attend enquiry; or
the employee fails attend enquiry because of decision on employee’s part not attend. non-attendance due illness not constitute waiver of right.