Workplace Discipline

1
Workplace Discipline

• Limiting delay in disciplinary processes

2
Introduction

• Typical disciplinary processes
• Follow a formal tribunal style process
• Often take a long time
• Can be expensive
• Lead to disputes (if dismissal)
• Count for no more than procedural fairness
• Must be duplicated at arbitration

3
What does the law require?

• Section 188 of the Labour Relations Act requires
  that a dismissal must be not only for a fair
  reason but effected in accordance with a fair
  procedure taking into account any relevant code
  of good practice issued in terms of the Act.
• Schedule 8 Code of Good Practice that
• the employer notify the employee of the
  allegations
• the employee be allowed an opportunity to respond
  to the allegations (dialogue and an opportunity
  for reflection)
• the employee be entitled to representation by a
  fellow employee or trade union representative
  and
• the decision of the enquiry must be communicated
  to the employee, preferably in writing.

4

• Van Niekerk J in Avril Elizabeth Home for the
  Mentally Handicapped 2006 9 BLLR 833 (LC)
• confirmed that item 4 of the Code of Good
  Practice on Dismissal does not require an
  employer to convene a formal disciplinary enquiry
  when enforcing workplace discipline.
• a significant and fundamental departure from
  the criminal justice or adversarial model
  developed by the Industrial Court and applied
  under the old unfair labour practice definition
• true justice lay in an expeditious and
  independent review of the employers decision to
  dismiss, with reinstatement as the primary remedy
  when the substance of the employers decision is
  found wanting (at 839).
• the employees right to resort to expeditious
  arbitration was intended to promote rational
  decision-making and to do away with the
  inefficient and inappropriate procedures adopted
  before the new Act in 1995.
• no place for formal disciplinary procedures that
  incorporate all of the accoutrements of a
  criminal trial, including the leading of
  witnesses, technical and complex charge sheets,
  requests for particulars, the application of the
  rule of evidence, legal arguments and the like
  (at p839). Managers are not intended to be
  experienced judicial officers and workplace
  efficiencies should not be impeded by lengthy
  procedural requirements.

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• Avril Elizabeth has subsequently been confirmed
• Ngutshane v Ariviakom (Pty) Ltd t/a Arivia.kom
  others 2009 6 BLLR 541 (LC), it was held that
  in circumstances where an employees misconduct
  is manifest, common cause or not in dispute, a
  less formal process will suffice.
• Tshongweni v Erkuhuleni Metropolitan Municipality
  (JS 637/07) 2010 ZALC 84 (18 May 2010) Van
  Niekerk J again stressed that the standard
  against which procedural fairness must be
  determined is that established by the LRA. He
  stated that (i)f an employer in its folly
  chooses to engage an independent counsel to
  conduct a hearing to a standard that would make a
  High Court judge proud, it does not follow that
  the CCMA (or this court) must act as if it were
  the Supreme Court of Appeal when determining
  whether a dismissal was procedurally fair.

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• ILO Convention 158 on the Termination of
  Employment
• requires procedures to promote compliance with
  the obligation to ensure that dismissals are
  based on valid reasons
• International labour standards give content to
  our constitutional right to fair labour
  practices.
• ILO committee of experts (referring to article 4
  of convention 158)
• no need for an adversarial proceeding
• dismissal must be preceded by dialogue and
  reflection between the parties

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Why the reluctance to apply Schedule 8?

• Internal disciplinary codes and procedures often
  unduly onerous and outdated
• Past practice and expectation
• Understanding of the law
• Inadequate training
• Poor advice
• Weak lawyers
• Undue caution
• Weak chairpersons

8
The future

• More formal processes used when dispute exists or
  if parties decide to use such processes
• Avoiding delay
• Acting on dilatory tactics such as medical
  certificates, unnecessary requests for
  postponement
• Postponements be unequivocal in all
  communication
• Documents ensure documents are made available
  timeously
• Representation ensure representative available
• Medical certificates In Mgobhozi v Naidoo NO
  2006 3 BLLR 242 (LAC) medical certificates no
  different to other documentary evidence,
  constitutes hearsay in the absence of an
  affidavit from the doctor concerned

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• Notice and comment procedure
• On paper
• Senior employees?
• Particularly where no disputes of fact
• On the basis of allegations and the opportunity
  to respond via representations
• No hearing convened
• Decision in writing
• Complies with Schedule 8

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Conclusion

• Advise on discipline and disciplinary codes with
  caution
• Consider Schedule 8
• Make the speedy resolution of labour disputes a
  reality
• Hold processes which are fair and equitable but
  not unduly procedural or technical
• In the words of Van Niekerk J If an employer in
  its folly chooses to engage an independent
  counsel to conduct a hearing to a standard that
  would make a High Court judge proud, it does not
  follow that the CCMA (or this court) must act as
  if it were the Supreme Court of Appeal when
  determining whether a dismissal was procedurally
  fair.

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