By lvan lsraelstam, chief executive of Labour Law Management Consulting
In the case of AUSA obo Melville vs SA Airways Technical (Pty) Ltd (2002,6 BALR 573) the arbitrator quoted the following finding of Brassey: “By entrenching the right to fair labour practice, which can confidently be taken to embrace the right to a fair hearing in dismissal proceedings, the Bill of Rights has reversed the position. Now the right to be heard is the primary entitlement from which derogation is possible only if it can be justified under the limitation clause. Sensitive to this, no doubt, the drafters of the Labour Relations Act of 1995 expressly provided for a right to be heard in the statute: section 188 states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.”
Important elements of this quote include:
• The employee’s right to be heard emanates directly from the Constitution of South Africa and is the employee’s primary right
• The employee must be told what case he has to meet
• The employee must be given a proper opportunity to prepare and present his case
• The Code Of Good Practice: Dismissal in the LRA does not require the process at which the employee is heard to be a formal one.
Many tens of thousands of employers lose cases at the CCMA and bargaining councils because they take too seriously the provision that the disciplinary process does “not need to be a formal one”. That is, in practice it is all but impossible to comply with the other provisions of the law of dismissal without making the disciplinary hearing process a formal one.
That is, according to Brassey’s quote above, the employer is forced, in order to avoid an unfair dismissal decision, to prove that the employee’s procedural rights were complied with. Let us look at these procedural rights born out of the LRA and case law and examine just how, in practice, the employer would need to go about proving that these rights have been complied with:
• The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the accused employee
• The right to a proper opportunity to prepare – Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the accused employee well in advance of the hearing date
• The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
• The right to be fairly judged – proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.
I admit that, in certain cases, proof of the above mentioned compliance could be provided by means other than signed notices and minutes of proceedings. Such other proof could include, for example, oral evidence from witnesses. However, between the disciplinary process and the arbitration hearing at CCMA a great many months may elapse. As a result the memories of witnesses fade and witnesses themselves disappear. Therefore, there is no effective replacement for written records. Consequently, once one introduces the use of records such as minutes, hearing notices and charge sheets one is converting the disciplinary process into a formal one. This conversion is reinforced by the need to separate the complainant role from the presiding officer role in order to eliminate bias.
In summary, the employer’s onus to prove that all the employee’s rights have been complied with makes a formal and expertly controlled hearing essential.
The officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to.
Therefore, managers must either be thoroughly trained in disciplinary process or the employer must hire a reputable labour law expert to chair its hearings.