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January 2010

Johanette Rheeder

According to the Labour Relations Act, (LRA) a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure. The employer bears the burden of proof to show that the reason for the dismissal is a fair reason based on the misconduct, incapacity or the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Fur this purpose, one must take into account any relevant code of good practice issued in terms of the LRA, specifically, schedule 8.
Procedural fairness, in general terms refers to a disciplinary hearing that has to be held on order to afford the employee a reasonable opportunity to state his defence. This does not require the employer to hold a “mini court” case. This requirement is derived from the audialterem partemrule that requires, in the labour context, an employer to afford an employee the opportunity to be present and state his defence. As long as these requirements have been complied with, the employer has applied a fair procedure. This is the standard commissioners are required to apply when they judge the procedural fairness of dismissals, unless the parties have agreed to more rigorous procedures or, perhaps where administrative law applies. Schedule 8 does not substitute employers’ own procedures and if the employer has its own disciplinary code of conduct, it should adhere to the principles set out therein. Employers who do not have their own disciplinary rules must adhere to the principles set out in schedule 8 and should be mindful of the requirement of consistent discipline. It should at least ensure that it applies the requirements of schedule 8 in a consistently manner to all employees suspected of misconduct.

The substantive requirements of a disciplinary hearing and the standard of proof required were decided on in the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 15 LC 1.11.4, [2006] 9 BLLR 833 (LC); [2006] JOL 17623 (LC). The Labour Court held that, when determining whether an employee is guilty of misconduct, the proper test is proof on a balance of probabilities, not those of beyond reasonable doubt, which is the burden of proof as it applies in our criminal law system.

The Court confirmed that while the LRA is silent on the requirements for procedural fairness, the nature and extent of that right is spelled out in the Code of Good Practice on dismissal in Schedule 8. The code specifically states that the investigation preceding a dismissal “need not be a formal inquiry”. The Code requires no more than before dismissing an employee, the employer should conduct an investigation, give the employee or his/her representative an opportunity to respond to the allegation after a reasonable period, take a decision and give the employee notice of that decision. This approach represents a significant change from what may be termed the “criminal justice” model developed by the erstwhile industrial court under the 1956 LRA.

Schedule 8 deals predominantly with the procedural elements of a disciplinary hearing. It determines that when misconduct occurs, the employer should conduct an investigation to determine whether there are grounds for disciplinary action and dismissal. This does not need to be a formal investigation or formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee is entitled to a reasonable time (minimum 2 clear working days) to prepare his defence and is entitled to the assistance of a trade union representative (shop steward) or a fellow employee. This constitutes the core rights of an employee when charges for misconduct.

After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. If the employee is dismissed, the employee should be given the reason for dismissal and reminded of his right to refer the matter to a council or to the CCMA.

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