Informal Disciplinary Hearings

Recently,  the Labour Court, per Prinsloo J in Mark Strydom v ArcelorMittal South Africa[1] had to contend with an interesting set of facts. There has since been a plethora of articles written on this case as a result of Judge Prinsloo’s obiter comments regarding unpaid suspension. The purpose of this article is to discuss another pertinent aspect of the judgment that endorses the informal disciplinary hearing.

Formal disciplinary hearings were required by the old Industrial Court established under the 1956 Labour Relations Act, in order to achieve procedural fairness in the context of that legislation. The current Labour Relations Act (“LRA”) does not require nearly such stringent procedures. In fact, the Labour Courts have increasingly been calling on business and labour to move away from the so-called “criminal justice model” as it pertains to internal disciplinary proceedings.

As Prinsloo J points out in her judgement, the LRA’s statutory requirements for fair procedure are clearly spelled out in the Code of Good Practice: Dismissal as those were elaborated on in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others[2]. In that case Van Niekerk AJ (as he then was) held –

“To some extent, Chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in Schedule 8 to the LRA (“the Code”). Item 4 of the Code provides:

‘(4) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry (my emphasis). The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.’

It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision. This approach represents a significant and fundamental departure from what might be termed the “criminal justice” model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the Labour Relations Act 28 of 1956. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context.”

Despite these and other authoritative remarks on the subject, there remains a thriving “cottage industry” for the application of formal disciplinary hearings in the workplace, encouraged by trade unions, industrial relations practitioners and even lawyers.

As Prinsloo J points out, adopting the approach favoured by the LRA and the Code, clearly leaves no room for formal disciplinary procedures that incorporate all the stringent requirements and trappings of a criminal trial, including the taking of technical points in liminé, the leading and cross examination of witnesses, technical and complex ‘charge-sheets’, requests for particulars, the application of the formal rules of evidence, legal arguments, and the like. Hearsay evidence should be readily allowed and relied upon where no material injustice would result.

The LRA aims to strike a balance between the rights of employers and employees in that it recognises that managers are not experienced judicial officers and that workplace efficiencies should not be unduly impeded by strict and onerous procedural requirements. Managers and business owners often rely on the HR department insofar as discipline in the workplace is concerned. They in turn were probably provided with or inherited a policy manual with a detailed disciplinary code and procedure, forms and processes, that had become entrenched in the workplace; whereas employees fight to keep their jobs and use (or misuse) every possible aspect, process and protocol to prevent being dismissed.

Moreover, the formal disciplinary hearing process more often than not creates the unnecessary duplication of time, effort and expenses when a complicated disciplinary hearing has to be repeated at arbitration in any event.

Prinsloo J aptly remarked that: “once agreed to, employers are bound to apply the standards to which they have agreed or that they have established”. This is however not always the case and under circumstances where a disciplinary process does not form part of the employees’ contracts of employment, internal disciplinary processes could be executed through an informal procedure.

What are then the minimum requirements of a fair informal process which could  lead to dismissal?

In short, the dismissal must be both substantively and procedurally fair – these two requirements are independent from each other and must be independently satisfied. There are only three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary enquiry, namely –

• the person should know the nature of the accusation against him;
• he should be given an opportunity to state his case; and
• the tribunal should act in good faith[3].

The Code Of Good Practice: Dismissal in Schedule 8, makes it clear that the only requirements to ensure procedural fairness are that –

• an investigation must be conducted by the employer into any alleged misconduct;
• an employee against whom an allegation of misconduct is made must be given an opportunity to respond thereto;
• a reasonable period to respond should be allowed;
• the employee is entitled to be represented by a fellow employee or trade union representative;
• a decision by the employer; and
• notice of that decision must be given to the employee.

Noticeably absent from these requirements is the need for any formal hearing to take place, or even the provision of a formal charge sheet or any other written statement or document. Admittedly, reducing the process to this level might be impractical in all but the simplest or most egregious cases.

In practice, what employers should consider is an informal disciplinary process employing written submissions or statements. This could take the form of a brief founding statement by the initiator or prosecutor on behalf of the employer wherein the facts, including any vital documentation (even on a hearsay basis) and the charges in broad terms are set out, as well as brief legal submissions and conditional relief in the form of a recommended sanction if found guilty. This is to be followed by an answering statement by the employee within a reasonable time (which in most cases would not exceed two days), dealing with his/her response to the charges, any defences he/she might have and also conditional responses to the sanction sought by the employer. In complex cases or where the employee raises a potentially valid defence, a replying statement by the employer might be necessary.

These documents would provide a sufficient basis on which a decision maker could consider the matter. In exceptional cases oral evidence may have to be led on certain aspects which would then become subject to cross-examination, but this would typically be rare and occur on a case-by-case basis. Objections, points in liminé and applications for postponements should be discouraged and only allowed to be entertained under compelling circumstances.

The informal process would be of benefit to both employer and employee in that it will allow for flexibility, effective and expeditious resolution of a process that is sometimes emotional, oftentimes tense, and constantly stressful for all involved.

In short, employers would be well-advised, where their policies or terms and conditions of employment allow, to consider an informal process for disciplinary proceedings, not only limited to “less serious cases” where dismissal is not contemplated, but even in cases where dismissal is actively pursued by the employer.

[1] Unreported (J 1764-2023) [2023] ZALCJHB 345 (27 December 2023)

[2] [2006] 9 BLLR 833 (LC)

[3] See: Strydom supra and Twala v ABC Shoe Store (1987) 8 ILJ 714 (IC) at 716D-F, as quoted there.

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