Disciplinary Hearing

Marius Scheepers
8 hours ago
160 min read

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to December 2025 [Copyright: Marius Scheepers/16.3.1])

Disciplinary hearing, Suspension.

Disciplinary hearing

Biased Manager

Managers who chair enquiries are not neutral or oblivious to the employers interests. They are not judicial officers and they cannot reasonably be expected to exercise the same degree of judicial discipline and independence. Despite this, industrial relations practice permits managers to chair enquiries. Hence the law provides mediation and adjudication to correct any unfairness

D242/03

Bissoon v Lever Ponds (Pty) Ltd & Another

Biased

the arbitrator had misconducted himself in not revealing that he had performed work for the municipality in the past

D350/02

Buckas v Ethekwinin Municipality & Others

Disciplined twice

employer argued that it was not aware of the full extent of the falsifications

that fairness applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case. Noted that in casu the first warning had been given by the employer before a proper investigation of the facts had been undertaken. Held that it was unfair to the [employer] to have it denied the opportunity of having the facts evaluated

DA19/02

Branford v Metrorail Services (Durban) & Others

Legal Representation

a chairperson has a discretion to allow legal representation and should consider in each case whether such representation is indispensable to ensuring a procedurally fair hearing. Noted that the failure to allow representation in certain circumstances could effectively be a denial of access to a court or tribunal in terms of s34 of the Constitution. Held further that whether there is a collective agreement regulating legal representation is a vital consideration in the exercise of this discretion.

J1713/03

Majola v MEC, Department of Public Works and Another

Biased

The true test is whether, seen objectively, there exists a reasonable apprehension that the Judge (or in this case the chairperson) may be biased, as viewed by a reasonable, objective and informed person

JR660/04

Khula Enterprise Finance Limited v Dr Thami Madinane; KG Mngezana NO; The CCMA

Procedure

Rules

was held to be flawed because the steps laid down in the code were not followed. Counsel for Denel held that the procedure they followed was fair under the Bill of Rights. Held that this argument was specious as the proper procedure was equally fair and ought to have been followed to the letter

13/2004

Denel (Pty) Ltd v DPG Vorster

Procedure

Interdict

Jonker acted precipitately in launching this application before the inquiry was actually held. As a matter of law the employee should have shown actual prejudice arising from the procedure followed. Held that a procedural irregularity that does not result in prejudice is not actionable (Highveld District Council v CCMA & Others (2003) 24 ILJ 517 (LAC) )

D71/05

Jonker H W v Okhahlamba Municipality & Others

Timing

that the failure to convene an enquiry promptly in a similar in casu is so grossly unfair that it vitiates the decision to dismiss.: Union of Pretoria Municipal Workers & Another v Stadsraad van Pretoria (1992 (1) IJ 1563)

JR795/03

Department of Public Works, Roads & Transport v Motshoso; General Public Service Sectoral Bargaining Council & Moloi M (Commissioner)

Procedure

Procedurally unfaif

Notice not contain charges

JR1289/04

Sanny, Nkwana v Brenda van der Westhuizen N.O.; Bargaining Council for the Meat Trade & Watloo Meat & Chicken

Code

disciplinary code had formed part of Mr Riekerts contract of employment and although a code is a guideline it was held that employers could not chop and change the code to suit themselves and employees had a right to expect the company to follow its own procedures. Held that an employer bore the onus of justifying its non-compliance with internal codes and showing such conduct to have been fair, reasonable and equitable

JR686/03

Riekert, F W v CCMA; Raffee, M S N.O. & Emerald Safari Resort & Casino (Pty) Ltd

Procedure

audi alteram partem rule

where the opportunity to be heard was given after a decision was made and then that opportunity rejected, it could be said that the audi alteram partem rule was complied with. Noted further that the opportunity to be heard before an independent party certainly satisfied the rule and was perhaps even fairer than the opportunity that should have been given before the decision. It was also noted that in Administrator, Tvl & Others v Traub & Others (1989 (4) SA 731 (A)) the Appellate Division had acknowledged that there were circumstances where it was acceptable for the audi alteram partem rule to be observed after the decision was taken.

JA 26/03

Semenya, IAM; Maleka, LV; Sibeko, LT & Bokaba, LJ v CCMA; Monyai, T N.O. & Hlatswayo, HN

Fixed rules

Black Mountain vs CCMA & Others [2005] 1 BLLR 1 (LC): where the employer's disciplinary code and policy provide for a particular approach it will generally be considered unfair to follow a different approach without legitimate justification. Justice requires that employers should be held to the standards they have adopted. I am in agreement with the proposition that disciplinary codes are guidelines and that an employer will not necessarily be regarded as having acted procedurally unfairly if it did not comply with certain specific parts of its code. I do not believe that the fact that there is clear case law to the effect that disciplinary codes are guidelines can under any circumstance be understood by employers as meaning that they may chop and change the disciplinary procedures they have themselves set as and when they wish. Employees (and employers) are entitled to expect that their employers (and employees) will comply with the prescribed rules of the game as far as disciplinary enquiries go (and for that matter, as far as all rules set in the workplace, for both employers and employees, are concerned). When an employer does not comply with aspects of its own disciplinary procedures, there must be good reason shown for its failure to comply with its own set of rules. An employer must justify the non-compliance with its own code and, having regard to all the relevant circumstances, the employer bears the onus tosatisfy the objective requirement that their conduct was substantially fair, reasonable and equitable.

JR686/03

Riekert v CCMA & Others

Suspension

such a right can be derived from the principles of fairness, provided the employee has been informed of the reasons for the suspension and is not deprived of his salary and other benefits while on suspension.

JS1137/01

Annandale v Pasdech Resources (SA) Ltd

Not a judicial or quasi-judicial process in which strict laws of evidence is necessary

J2032/99

Transvaal Sugar vs Shongwe

Charges

To make employee aware of allegations he is to face; need only be sufficiently precise to allow the employee to identify the incident;

J837/98

Seelie v Price Forbes

Disciplinary enquiry

substitute decision, only if collective agreement admits

JR984/08

South African Revenue Services v Commission for Conciliation Mediation and Arbitration & Others

Disciplinary enquiry

Local Government

Chairperson must impose sanction not recommendation.

JR2595/09

SAMWU obo Mahlangu v SA Local Government Bargaining Council and Others

Disciplinary enquiry

authority

Chairperson Local Government Power to appoint

J2822/11

Lebu v Maquassi Hills Local Municipality

Disciplinary enquiry

Res judicata

Disciplinary enquiry Whether employee entitled to raise res judicata on the basis of an earlier hearing and sanction imposed for same offence Fact of fresh hearing not per se irregular Employer having had fair reason for seeking further enquiry Matter eventually decided on different basis.

D317/10; D276/10

Toyota SA Motors (Pty) Ltd v CCMA and Others

Appeal hearing

defect in hearing

Consider code; no provision for full rehearing

JR1624/06

Eskom Holdings v Ferreira N.O. & Others

no criminal charges

relevant as no prima facie case exist

JR1624/06

Eskom Holdings v Ferreira N.O. & Others

dishonesty

question if permission would have been granted irrelevant

JR2547/03

First National Bank v Kahn & Others

Charges

Splitting of allegations not permitted

JR2571/04

Wozney v Myhill & Others

procedure

employee leaving hearing after advocate was barred from hearing - court found employee not denied legal representation

JR158/06

Dipaleseng Municipality v SALGBC & Others

Disciplinary Procedure

Appeal

was denied an appeal against the decision did not render the disciplinary procedure defective

JR164/06

Dell v Seton (Pty) Ltd & Others

Disciplinary Procedure

Other case law sited

Highveld District Council v CCMA & Others (2002) 12 BLLR 1158 (LAC)

The mere fact that a procedure is an agreed one does not however make it fair. By the same token, the fact that an agreed procedure is not followed does not in itself mean that the procedure actually followed was unfairWhen deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinize the procedure actually followed. It must decide whether in all the circumstances the procedure was fair.

JR164/06

Dell v Seton (Pty) Ltd & Others

Disciplinary procedure

Preliminary investigation audit

no audi alteram partem

Disciplinary procedure

Amend charges

opportunity to address

factual allegations not catagoration in charges

J1153/08

Munnik Basson Dagama Attorneys v CCMA & Others

Disciplinary procedure

Failure to follow own rules

Local government

Chairperson may not make recommendation

South African Municipal Workers Union v South African Local Government Bargaining Council and Others

Disciplinary procedure

Application for interdict

Premature; bypassed domestic proceedings

J 2757/11

Mahlangu v Premier, Mpumalanga and Another

Disciplinary procedure

Charge sheet

fell short in drafting charge sheets in an attempt to categorize the misconduct, as long as the employee knew what the essence of the misconduct

D994/09

Toyota SA Motors (Pty) Ltd v Lewis and Others

Disciplinary procedure

Charge sheet

guilty of dishonesty as opposed to a breach of the applicants policies and procedures

D994/09

Toyota SA Motors (Pty) Ltd v Lewis and Others

Disciplinary procedure

Enquiry taking form of a meeting at which employee handed a letter setting out complaint and sanction

J185/06

Choene v Mitsui & Co Southern Africa (Pty) Ltd

Disciplinary procedure

Recusal of Chairperson

chairpersons refusal to recuse himself, the employee filed a High Court applic recusal.

J2883/06

Ekhuruleni Metropolitan Municipality v Mashazi, Raymond BNO & Others

Misconduct

Theft

No dismissal

Unreasonable

C641/09

National Commissioner of Police & Another v Senior Superintendent Harri NO & Another

Discipline

LC only intervene exceptional circumstances

CA09/08

Booysen v Minister of Safety and Security & Others

Disciplinary procedure, nothing to suggest that the doctors opinion was incorrect.

D787/10

Woolworths (Pty) Ltd v CCMA and Others

Notice

Disciplinary code requiring second notification of hearing on a date at least 24 hours later. Breach of this requirement.This procedural defect not cured by subsequent appeal hearing at which there was merely argument. Dismissal procedurally unfair.

Khoza v Gypsum Industries Ltd [1997] 7 BLLR 857 (LAC).

(JA 53/13) [2014] ZALAC 35

Gold One Africa Ltd Modder East Operations v Van der Westhuizen and Others

Sanction substituted

Sanction of suspension, final. Whilst it was trite that the duty of trust and confidence on the part of an employee was a term implied by law in an employment contract, such implied term did not extend to include the right of an employer to substitute its own sanction for that of the chairperson, particularly in a situation such as the present where the parties in a collective agreement elected expressly to confer on the disciplinary chairperson the sole power to impose the final sanction.

Ultra vires and no audi et alteram partem

(DA 7/11) [2013] ZALAC 26

SARS v CCMA and Others

Procedure,C65 time period

To have hearing within a prescribed time stipulated in collective agreement and incorporated in employees conditions of service. Failure to hold disciplinary hearing within the stipulated period. Arbitrator entitled in terms of s 138(9) of the LRA to make an order declaring a disciplinary hearing held outside the stipulated period null and void.

(C 701/13) [2014] ZALCCT 25

SAMWU obo Jacobs v City of Cape Town and Another

Charges: Gross negligence means

JR483/13

Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)

Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (SCA) at para 7

. If a person foresees the risk of harm but acts, or fails to act, in the unreasonable belief that he or she will be able to avoid the danger or that for some other reason it will not eventuate, the conduct in question may amount to ordinary negligence or it may amount to gross negligence (or recklessness in the wide sense) depending on the circumstances. . even in the absence of conscious risk-taking, conduct may depart so radically from the standard of the reasonable person as to amount to gross negligence . It follows that whether there is conscious risk-taking or not, it is necessary in each case to determine whether the deviation from what is reasonable is so marked as to justify it being condemned as gross . It follows, I think, that to qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care .

In Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) at para 35

The probable explanation for his conduct, in these circumstances, is simply that he deliberately neglected to perform his duties. Consequently, I do not share the view of the Industrial Court that the evidence against Khoza was so circumstantial that it could not be used to explain his conduct. It was Khoza who had to furnish that explanation. In the absence of any credible explanation, the inference that he deliberately neglected to perform his duty is irresistible. This finding by the employer cannot be faulted.

Replace outcone of hearing by employer

JA 06/11

South African Revenue Service v CCMA and Others

the decision by the commissioner of SARS to substitute a sanction of dismissal for the sanction of a suspension imposed by the disciplinary enquiry chair found to be invali

Penalty, consistancy

JR 2610/12

Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015)

SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd 2009) 30 ILJ 205 (LC)

employer is indeed entitled to impose different penalties on different employees who had committed the same misconduct, provided there was a fair and objective basis for doing so. Thus where inconsistency of application of discipline is claimed, it is for the employee to show in what material respects the employer had acted inconsistently, and it is not enough for the employee to simply make an allegation of inconsistency.

charge sheet

JR2172/2011

Ledwaba v Mpahpulu N.O. and Others (JR2172/2011) [2015] ZALCJHB 377 (23 October 2015)

In dealing with the point in limine, one should not lose sight of the purpose of the charge-sheet, namely to ensure that the dismissed employee is made aware of the allegations he is to face in the disciplinary hearing. Disciplinary charges are not intended to be a precise statement of the elements of an offence. The charges need only be sufficiently precise to allow the charged employee to identify the incident which forms the subject-matter of the complaint in order for him or her to prepare a suitable defence.

Korsten v Macsteel (Pty) Ltd & another [1996] 8 BLLR 1015 (IC) at 1020; and Dywili v Brick & Clay [1995] 7 BLLR 42 (IC) at 47B-C.

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others. (2011) 32 ILJ 2455 (LAC) at 2467, para [32]

Hearing by written submissions: Large number of accused employees

J2239/2015

BEMAWU and Others v SABC and Others (J2239/2015) [2016] ZALCJHB 74 (2 March 2016)

Booysens v Minister of Safety and Security2011 (32)ILJ112 (LAC) at paragraph 54

The court will only intervene in incomplete disciplinary hearings in exceptional circumstances. The Court said that there is no exhaustive list of such circumstances but that:

duration of a disciplinary warning

JR86/2011, JA8/2015

Dorrainn Bailiff Investments (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR86/2011, JA8/2015) [2016] ZALAC 20 (26 May 2016)

Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others 2001 (4) SA 1038 (LAC)

An employer and an employee may deal with these matters in their contract of employment. . These matters may also be governed by an established practice in a particular workplace. Depending on what the contract of employment between the parties, or, the applicable collective agreement, provides or what the established practice is in a particular workplace, the fact that an employees previous warning has lapsed or expired may well mean in a particular workplace that such employee must be treated as having a clean record when he is next found guilty of misconduct.

Union representation

JA10/2016

MacDonald's Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (JA10/2016) [2016] ZALAC 32; (2016) 37 (ILJ) 2593 (LAC); [2017] 2 BLLR 105 (LAC) (28 June 2016)

Right of dismissed employees to choose a union to represent them in unfair dismissal arbitration employer contending that union could not represent employees as they are not union members in good standing, their membership having lapsed for non-payment of subscription fees interpretation of unions constitution constitution, properly interpreted not subjecting membership to a condition that fees be actually paid employees becoming union members in terms of its constitution upon submitting application form and acceptance thereof employees were members at all relevant times

Employees right to choose a representative in unfair dismissal proceedings distinguished from unions demand for organisational rights - in dismissal proceedings before the CCMA or a Bargaining Council forum, the union is not usually the party, the employees are the parties rule 25 of CCMA Rules. Employees having the right to choose a union as their representative in dismissal proceedings - when a union demands to represent a member in dismissal proceedings it usually asserts its members rights not its own. Union also entitled to represent members in dismissal proceedings section 200 of LRA

Disciplinary code

J47/12

Mogalakwena Local Municipality v South African Local Government Bargaining Council and Others (J47/12) [2016] ZALCJHB 315 (4 June 2016)

The section does not suggest that the procedural fairness of a dismissal must also be measured mechanically against the procedural stipulations of a particular disciplinary code. No doubt, if an employer denies an employee their right to use the more extensive procedural provisions of an agreed disciplinary code so that the employees ability to conduct their defence to the charges is prejudiced, a finding of procedural unfairness might still be appropriate, even though the provisions breached set a higher standard than the LRA requires. However, it is not sufficient that merely because a provision in an agreed procedure is not complied with, that such non-compliance can be equated with procedural unfairnessper se. In this instance, the arbitrator appeared to have adopted the stance that non-compliance with the disciplinary code and procedure automatically required a finding of procedural unfairness.

AvrilElizabeth Home for The Mentally Handicapped v Commission For Conciliation, Mediation & Arbitration & Others (2006) 27 ILJ 1644 (LC)

This is not to say that employers and unions cannot agree to retain the criminal justice model if they are so inclined, whether by way of a collective agreement (as was the case in MEC: Dept of Finance, Economic Affairs & Tourism, Northern Province v Mahumani(2004) 25 ILJ 2311 (SCA);[2005] 2 BLLR 173(SCA)) or by G way of a contract of employment or employment policies and practices. In this instance, employers are obviously bound to apply the standards to which they have agreed or that they have established.

Appeal

JR2299/14

South African Municipal Workers' Union obo Cindi and Another v South African Local Government Bargaining Council and Others (JR2299/14) [2016] ZALCJHB 342; (2017) 38 ILJ 472 (LC) (30 August 2016)

The dismissal of the Applicants members was not and could not have been suspended by their noting of an appeal against their dismissal. Lugebu v Walter Sisulu University (1589/2013) [2015] ZAECMHC 3 (29 January 2015) at para 9.

Nchabeleng v University of Venda and Others (2003) 24 ILJ 585 (LC).

[22] An ingenuous contention advanced by the applicant is that the dismissal visited on him on 28 May 2002 is automatically suspended because he noted an appeal against it. In this regard he relies on the common-law rule that the noting of an appeal suspends an order of court. That such is the law in respect of the orders of courts of law is clear from, inter alia, the judgment of Roux J in United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W) at 463F. What the applicant's contention does not give due recognition to, is that this principle applies to orders of court and does not, without more, apply to the decisions of other decision-makers in society. Indeed, this is illustrated in Leburu v Voorsitter, Nasionale Vervoerkommissie 1983 (4) SA 89 (W). In that decision Groskopff J considered whether or not an appeal against a decision of a local road transportation board automatically suspended the decision of that board. He held that it did not, the provisions of the governing statute being a clear indication that the common law of automatic suspension would not apply.[23] In my view it is wholly misconceived to attempt to import the doctrine of the automatic suspension of an order of a court upon the noting of an appeal, into the industrial relations environment. It should not be forgotten that a valid lawful dismissal does not incorporate as a matter of law any right to an appeal. A 'right' to appeal flows solely from the practice, endorsed in the LRA Code of Good Conduct: Dismissals, as a ready means by which a procedurally fair dismissal, give the equitable norms promoted under the provisions of the Labour Relations Act, may be proven. The provision of an appeal is confined to the arena of unfairness.[24] In my view, the notion of the noting of an appeal suspending the effect of an order has no place whatsoever in the law of unfair dismissal.

Booysen v National Union of Metalworkers of South Africa (JA2013/13) [2014] ZALCJHB 161 (13 May 2014) at para 19.

When an employee is lawfully, albeit unfairly dismissed, the employment relationship is terminated there and then. (It is true that for the purpose of proceedings in the Labour law realm the necessary fiction is upheld that the relationship continues but that is a legal construct which exists to facilitate equity litigation and does not undermine the finality of the dismissal per se.) Unlike in legal proceedings where an appeal suspends the operation of a judgment, no such doctrine of suspended operation is applicable to a dismissal by an employer.

Replace outcone of hearing by employer

JR2826/11

Central University of technology v Kholoane and Others (JR2826/11) [2016] ZALCJHB 356; (2017) 38 ILJ 167 (LC) (23 September 2016)

Final warning amended with dismissal

32It is on this basis that I hold a view that, Clauses in disciplinary procedures and or codes that allow for senior management to make changes to sanctions cannot be understood to give unfettered discretion to management but must be understood to be tools to correct sanctions in circumstances where the sanctions of the chairpersons are wholly or shockingly inappropriate. It is unlikely that a sanction that is listed as an alternative could be viewed as such. In the premises there was no basis in fact and in law for the changes to the sanction herein.

Dismissal without disciplinary hearing: Uirgent application

J2767/16

Khena v Passenger Rail Agency of South Africa (J2767/16) [2016] ZALCJHB 457 (6 December 2016)

[46]In my view the Applicant has satisfied the requirements and has shown a clear right to be entitled to specific performance insofar as he seeks an order to set aside the termination of his employment and reinstatement until there has been compliance with the Respondents disciplinary code and procedure.

consistancy

JR438/13

Bader SA (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR438/13) [2016] ZALCJHB 550 (20 December 2016)

(SACCAWU & Others v Erwin & Johnson Limited[1999] 20 ILJ 2302 (LAC)

There is no suggestion that the Applicant acted in bad faith. It is trite in our law that historical inconsistency will not assist an employee who is aware of the rule concerned

Charge sheet

JR438/13

Bader SA (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR438/13) [2016] ZALCJHB 550 (20 December 2016)

what should be contained in a charge sheet.

Woolworths (Pty) Ltd v CCMA & Others([2011] 32 ILJ 2455 (LAC)

[32] Unlike in criminal proceedings were it is said that the description of any statutory offence in the words of the law creating the offence, all in similar words, shall be sufficient, the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellants disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of anyone of or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained. In this regard I refer to the work of Le Roux and Van Niekerk where the learned authors offer a suitable example, with which I agree:Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence either at the disciplinary enquiry or during the Industrial Court proceedings, establishes unauthorised possession of company property. Here the rule appears to be that, provided a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that he was not significantly prejudiced by the incorrect characterisation, discipline appropriate to the offence found to have been committed may be enclosed.

charges

JR220/13

Mathebula v General Public Service Sectoral Bargaining Council and Others (JR220/13) [2017] ZALCJHB 12 (19 January 2017)

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) At 2467-8.

[32] Unlike in criminal proceedings where it is said that 'the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient',the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant's disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge-sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained. In this regard I refer to the work of Le Roux & Van Niekerk where the learned authors offer a suitable example, with which I agree:'Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence either at the disciplinary enquiry or during the industrial court proceedings, establishes unauthorised possession of company property. Here the rule appears to be that, provided a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that he was not significantly prejudiced by the incorrect characterization, discipline appropriate to the A offence found to have been committed may be imposed.'[33] To my mind, the misconduct charge against the employee was framed in such a manner as to have sufficiently embraced most of the specific acts of misconduct listed in the appellant's 'Honesty Code of Conduct' and the 'Disciplinary Code: Policy Amended 15/5/2000',which I have referred to above

progressive dissipline

JR755/14

PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

Timothy v Nampak Corrugated Containers (Pty) Ltd (2010) 31 ILJ 1844 (LAC) at 1850A-C.

Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer's organization, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct.

Gcwensha v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 927 (LAC) at para 32. See also Transnet Freight Rail (supra) at para 43.

I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that arepetition of misconduct could lead to his dismissal.

dissipline: remorse

JR755/14

PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at para 46.

Obviously, the fact of a guilty plea per se or mere verbal expression of remorse is not necessarily a demonstration of genuine contrition. It could be nothing more than shedding crocodile tears. Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:'There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.

De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1051 (LAC) at para 25.

Acknowledgment of wrong doing is the first step towards rehabilitation. In the absence of a re-commitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken.

De Beers

'A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise.

dissipline: trust relationship

JR755/14

PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

Edcon Ltd v Pillemer NO and Others (2009) 30 ILJ 2642 (SCA) at para 19.

It is to Naidoo's testimony, as Edcon's sole witness in the arbitration, as well as the documentary evidence referred to above, that one must look to see if indeed there was evidence showing that Reddy's conduct had destroyed the trust relationship between her and Edcon. Naidoo's testimony in the arbitration was mainly to recount the investigative history of the matter. He also testified that Edcon was intolerant towards dishonesty and that employees were generally dismissed if they committed dishonest acts. This, he said, was one of Edcon's core values. As already mentioned Naidoo was the investigator of Reddy's misconduct and fielded some of her lies. It was at his recommendation, as investigator, that Reddy was suspended and eventually disciplined. What becomes immediately apparent is that Naidoo's evidence did not, and could not, deal with the impact of Reddy's conduct on the trust relationship. Neither did Naidoo testify that Reddy's conduct had destroyed the trust relationship. This was the domain of those managers to whom Reddy reported. They are the persons who could shed light on the issue. None testified.... The gravamen of Edcon's case against Reddy was that her conduct breached the trust relationship. Someone in management and who had dealings with Reddy in the employment setup, as already alluded to, was required to tell Pillemer in what respects Reddy's conduct breached the trust relationship. All we know is that Reddy was employed as a quality control auditor; no evidence was adduced to identify the nature and scope of her duties, her place in the hierarchy, the importance of trust in the position that she held or in the performance of her work, or the adverse effects, either direct or indirect, on Edcon's operations because of her retention, eg because of precedent or example to others.

Woolworths (Pty) Ltd v Mabija and Others (2016) 37 ILJ 1380 (LAC) at para 21.

Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others in order to determine whether the sanction of dismissal was fair.

dissipline: parity principle / consistency

JR755/14

PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)

the following considerations apply to the determination of the issue of inconsistency: (1) Employees must be measured against the same standards (like for like comparison); (2) Did the chairperson of the disciplinary enquiry conscientiously and honestly determine the misconduct; (3) The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (in other words this conduct must be bona fide)[55]; and (4) A value judgment must always be exercised[56].

Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC)

An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors

JR1103/13

G4S Cash Services SA (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1103/13) [2017] ZALCJHB 335 (6 September 2017)

[18] The Labour Appeal Court in Edcon without hesitation followed the Sidumo approach with approval[6]. It is highly notable that over the years the Courts exercised caution when dealing with cases where inconsistent application of discipline happened to be an issue. The inconsistency issue in this matter emerged out of repeated misconduct related to non-compliance with procedures which is usually characterized as comparing apples with apples. It is trite that a plea of inconsistency should to a large extent be sparingly upheld by arbitrators when raised. With or without invitation the arbitrator is required to apply a discretion that is upon consideration of all facts placed before him/her. The reason being that the raising of inconsistency cannot automatically come as a bar to imposition of dismissal.

Conmed Health CC v Bargaining Councilfor theChemical Industries and Others (2012) 33 ILJ 623 (LC)

As stated previously by this court the parity rule does not take away the right of the employer to impose different sanctions on employees who were involved in the same act of misconduct. The issue when faced with the complaint that the employer has applied discipline inconsistently is to consider the fairness of such inconsistent application of discipline. In other words, the differential sanctions do not automatically lead to the conclusion that the dismissal was unfair. The fairness of the dismissal has to be determined on the basis of whether the employer, in imposing differential sanctions, acted unfairly. In assessing the fairness of a dismissal in a case involving the imposition of differential sanctions, the commissioner has to consider whether there is an objective and fair reason for imposing different sanctions for misconduct arising from the same offence.

National Union of Mineworkers on behalf of Botsane v Anglo Platinum mine (Rustenburg section) (2014) 35 ILJ 2406 (LAC)

Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. Introducing such an issue in an ambushlike fashion, or as an afterthought, does not serve to produce a fair adjudication process. (See: SACCAWU and Others v Irvin and Johnson Ltd (1999) 20 ILJ 2302 (LAC) at [29]; also see: Masubelele v Public Health and Social Development Bargaining Council and Others [2013] ZALCJHB JR 2008/1151] which contains an extensive survey of the case law about the idea of inconsistency in employee discipline).

SA Police Services v Safety and Security Sectoral Bargaining Council and Others (2011) 32 ILJ 715 (LC)

Once the employee has pertinently put the issue of consistent treatment in issue, the employer has a duty to rebut such allegations. In the context of a case in which evidence was led by the employee of inconsistent treatment, Landman J held in Sappi Fine Papers (Pty) Ltd t/a Adamas Mill v Lallie and others (1999) 20 ILJ 645 (LC ) at 647 para 5:'As regards the onus, the onus of proving that the dismissal was fair, and thus of rebutting the allegation of inconsistency, is one which rests squarely on the employer.

Commissioners may find sanction harsher than the one prescribed in the disciplinary code appropriate when there is evidence justifying deviation from the prescribed sanction. Absent evidence, the commissioners decision that the harsher sanction is appropriate is unreasonable and defective

ultra vires

J2747/17

Kolobe v Member of the Executive Council, Department of Health: North West Province and Another (J2747/17) [2017] ZALCJHB 407 (9 November 2017)

[11] I am satisfied that this is a very clear case where the executive authority dismissed an employee without acting in terms of the above provisions, and accordingly acted ultra vires quite apart from whether he breached the employers contractual obligation to conduct an enquiry in compliance with the PSA. This is one of those exceptional circumstances where urgent final relief is appropriate. The fact that the applicant may have other remedies does not deprive him of the remedy to challenge action which is a clear breach of the principle of legality and an equally clear breach of his contractual entitlements. Under the circumstances, the applicants dismissal was unlawful and void ab initio.

consistancy

JS867/2006

Public Servants Association of South Africa obo Motapanyane v Premier: Free State Province and Another (JS867/2006) [2017] ZALCJHB 467 (1 December 2017)

SA Commercial Catering and Allied Workers Union and others v Irvin and Johnson Ltd (1999) 20 ILJ 23-2 (LAC).

In my view too great an emphasis is quite frequently sought to be placed on the 'principle' of disciplinary consistency, also called the 'parity principle' (as to which see eg Grogan Workplace Law (4 ed) at 145 and Le Roux & Van Niekerk The SA Law of Unfair Dismissal at 110). There is really no separate 'principle' involved. Consistency is simply an element of disciplinary fairness (M S M Brassey 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & others(1991) 12 ILJ 806 (LAC) at 813H-I). Discipline must not be capricious.

Absa Bank Ltd v Naidu and others (2015) 36 ILJ 602 (LAC).

However, it ought to be realised, in my view, that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard, I am inclined to agree with Professor Grogan when he remarks as follows:'[T]he parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty.'

Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2017) 38 ILJ 860 (LAC)

This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.

progressive discipline

JR809/15

NTM obo Dikgale v Commission for Conciliation, Mediation and Arbitration and Others (JR809/15) [2017] ZALCJHB 473 (18 December 2017)

Transnet Freight Rail v Transnet Bargaining Council and others (2011) 32 ILJ 1766 (LC)

An employee on a final written warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning Usually, the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable I accept that the purpose of the warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensure if he misbehaves again[2]

applying charges to case

JR342/ 11

LA CRUSHERS vs CCMA

National Battery (Pty) Ltd v Matshoba and Others (2010) 5 BLLR 534 (LC)

the court pointed out that the labels assigned to the misconduct are irrelevant the point is whether the evidence demonstrates a case of wrongdoing.

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC)

[32] Unlike in criminal proceedings where it is said that 'the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient', the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant's disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge-sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained. In this regard I refer to the work of Le Roux & Van Niekerk where the learned authors offer a suitable example, with which I agree:'Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence either at the disciplinary enquiry or during the industrial court proceedings, establishes unauthorised possession of company property. Here the rule appears to be that, provided a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that he was not significantly prejudiced by the incorrect characterization, discipline appropriate to the offence found to have been committed may be imposed.'

consistancy

JA73/15

Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA73/15) [2017] ZALAC 4; (2017) 38 ILJ 860 (LAC) (10 January 2017)

Held, that the commissioner ought not to have embarked on the question of inconsistency in the application of discipline without having first determined the underlying reason for the dismissal and that he did not provide any basis for his finding that the other two employees of the appellant had been dishonest;

warning changed to dismissal

JA13/2016

Moodley v Department of National Treasury and Others (JA13/2016) [2017] ZALAC 5; [2017] 4 BLLR 337 (LAC); (2017) 38 ILJ 1098 (LAC) (10 January 2017)

21] The court a quo granted leave to appeal to this Court, inter alia, after having had regard, at that stage, to the most recent judgment of this Court on the issue of whether an employer could substitute the final sanction of a Chairperson of a disciplinary enquiry.

South African Revenue Service v CCMA and Others 2016] 3 BLLR 297 (LAC); (2016) 37 ILJ 655 (LAC).

The established law about an employer being disallowed from interfering in the outcome of a disciplinary enquiry where the Chair has the power to make a final decision, which is the crucial issue in this appeal has as its aim the protection of workers from arbitrary interference with discipline in a fair system of labour relations. The principle is worthy of preservation.

After concluding that Mr Krugers dismissal was unfair, the arbitrator immediately ordered his reinstatement without taking into account the provisions of section 193(2). She was supposed to consider specifically the provisions of section 193(2) to determine whether this was perhaps a case where reinstatement is precluded. She was also obliged to give reasons for ordering SARS to reinstate Mr Kruger despite its contention and evidence that his continued employment would be intolerable. She was required to say whether she considered Mr Krugers continued employment to be tolerable and if so, on what basis. This was not done. She does not even seem to have considered whether the seriousness of the misconduct and its potential impact in the workplace, were not such as to render reinstatement inappropriate and those are the key-factors she ought to have considered before she ordered SARS to reinstate Mr Kruger.

inconstancy in the application of discipline

DA08/16

Workforce Group v McLintock and Others (DA08/16) [2017] ZALAC 49; (2017) 38 ILJ 2517 (LAC) (1 August 2017)

Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC) at 618 para 42 (see also Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metrofile (Pty) Ltd (2004) 25 ILJ 231 (LAC))

(T)he element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer in the belief that they will not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances.

failure to attend hearing

JR1693/16

Breed v Laser Cleaning Africa and Others (JR1693/16) [2017] ZALCJHB 102 (24 March 2017)

idelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others(2008) 29ILJ964 (LAC)

[40] . The reason why, generally speaking, an employee is not obliged to attend his disciplinary hearing is that a disciplinary hearing is there to comply with the audi alteram partem rule before the employer may take a decision that may affect the employee or his rights or interests adversely. An employee can make use of that right if he so chooses but he can also decide not to exercise it. However, if he decides not to exercise that right after he has been afforded an opportunity to exercise it and a decision is subsequently taken by the employer that affects him in an adverse manner, he cannot be heard to complain that he was not afforded an opportunity to be heard.[41]. The fear that the employer may take an adverse decision against the employee without the employee stating his side of the story is the reason why employees normally attend their disciplinary hearings. All an employer can do, if an employee fails to attend his disciplinary enquiry, is to proceed with the disciplinary enquiry in the employee's absence and make such decision as he considers to be right in the light of all the evidence before him.

Procedure: "exceptional circumstances"

J190/15, JR2361/16

Passenger Rail Agency of South Africa v Moreki and Others (J190/15, JR2361/16) [2017] ZALCJHB 114 (28 March 2017)

procedure in question on item 4 of Schedule 8 of the LRA

The following are the compulsory requirements as a minimum standard for a fair procedure:27.1 That an investigation should be conducted to establish whether there are grounds for dismissal and that investigation does not need to be a formal enquiry. A formal enquiry is in this context a reference to an oral hearing set-up.27.2 The employer must notify the employee of the allegations and be sure that the employee understands such allegations;27.3 The employer should allow the employee an opportunity to state a case in response to the allegations;27.4 The employer should allow the employee a reasonable time to prepare the response and to the assistance of a trade union representative or a fellow employee; and27.5 Finally, after the enquiry the employer should communicate its decision to the employee preferably in writing.

"exceptional circumstances" would be the case, where for instance, the employer does not afford the employee an audi or pre-dismissal process because witnesses are afraid to testify, or where it is impossible to serve the disciplinary notice on the employee. In that case, the employer cannot reasonably be expected to comply with the guidelines in sub-item (1) and, upon showing exceptional circumstances, it is permitted to dispense with the procedures that must normally precede a dismissal.

Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833 (LC) at 838

When the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employers allegations with the assistance of a trade union representative or fellow employee....the question whether or not there has been such proper ventilation of issues can only be answered in the light of the representations made by or on behalf of the employee. It follows that where the employee has failed to make representations as to the charges or allegations in issue, as in the present case, the question of procedural fairness does not arise in that regard. The employee cannot complain that she was not afforded the audi when she did not state by way of written representations as to which aspects she deserves an oral hearing."

The propriety or otherwise of the procedure followed should be assessed, not on the basis of an earlier election or the existence or absence of exceptional circumstances but rather on whether or not the chosen process resulted in a proper ventilation of the issues raised and consequently in procedural fairness.

Solidarity v South African Broadcasting Corporation[2016] ZALCJHB 273 at para [49]

"...The most plausible interpretation of the provision is that, an employee is entitled to a disciplinary procedure that conforms both with the SABC code and procedures and with schedule 8.

[33] ...It is the respondent who elected not to make written representations as requested despite the clear warning of the consequences thereof. The applicant was left with little choice but to consider what was placed before it through the investigation report without the benefit of the respondents written representations as requested. The process followed may have been unfortunate but I do not see any basis for finding such process to have been unfair as contemplated in the LRA.

charges

JA59/2017

Malapalane v Glencore Operations South Africa (Pty) Ltd (Goedevonden Colliery) and Others (JA59/2017) [2018] ZALAC 22; (2018) 39 ILJ 2467 (LAC) (15 August 2018)

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others (2011) 32 ILJ 2455 (LAC) at para 32; First National BankA division of First Bank Ltd v Language and Others (2013) 34 ILJ 3103 (LAC) at 3108 para 23.

the formulation of disciplinary charges; that they need not be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the employers disciplinary codes. It was sufficient that the misconduct alleged in the charge-sheet was set out with sufficient clarity so as to be understood by the employee.

appeal

CA15/2017

National Commissioner of South African Police Service and Another v Mphalele N.O. and Another (CA15/2017) [2018] ZALAC 42 (11 December 2018)

appeal authority reversing sanction of dismissal against employee court finding that appeal authoritys decision irrational and unreasonable in light of the employees conduct.

21] In the premises, dismissal was the only sensible and rational operational response in the circumstances. Both the appeal authority and the Labour Court erred in this respect. There was no rational connection between the purpose of the SAPS Discipline Regulations pertaining to dishonesty, the evidence before the appeal authority and the reasons given by it for reducing the sanction. The decision was accordingly irrational and must be set aside on review for that reason alone.

[17] In their founding affidavit, the appellants submitted that the appeal authority unreasonably and irrationally failed to take proper account of the evidence regarding the breakdown of the employment relationship.

charges

JR1091/2011

Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018)

(The ommissioner) found the respondents not guilty as charged because evidence that was led on behalf of the applicant did not support the charge.

The fact that the respondents were dismissed for misconduct different from the one with which they were charged is of no moment because the nature of the misconduct they were accused of was made clear at their disciplinary enquiries. They were therefore not prejudiced by the difference because they were aware that they were committing misconduct which was punishable by dismissal when they accessed the information and conveyed it to Dreyer. They were afforded an opportunity to state their cases before the decision to dismiss them was taken.

Woolworths (Pty) Ltd v CCMA [2011] 10 BLLR 963 (LAC) para 32

[32]Unlike in criminal proceedings where it is said that the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient, the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellants disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge-sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained.

Interal appeal: waver / rule with regard to peremption

J1812/2016

Huma v Council for Scientific and Industrial Research and Another (J1812/2016) [2018] ZALCJHB 159; [2018] 8 BLLR 797 (LC) ; (2018) 39 ILJ 1753 (LC) (24 April 2018)

a tacit waiver of her right to an internal appeal.

requirements for waiver

Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC).

[81] The conclusion reached in para [79] above is in accordance with common-law principles regarding waiver of rights. Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the waiver be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver; it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish.

the contract in question contains a non-waiver clause (I fno non-waiver clause the applies: whether a contracting party's delay in exercising its right to cancel (or resile from) a contract amounts to a waiver of that right depends on the reasonableness of the delay in the circumstances (Paradyskloof Golf Estate (Pty) Ltd v Stellenbosch Municipality 2011 (2) SA 525 (SCA). )

[20] The waiver defence must fail for this reason..

The conduct of the applicant in the Courts view cannot be considered as falling within the doctrine of peremption

South African Revenue Service v Commission for Conciliation, Mediation and Arbitration (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC) (2017 (2) BCLR 241 at para 26.

The rule with regard to peremption is well settled, and has been enunciated on several occasions by this court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.

dereliction of duties, negligence, failing instruction

JR806/13, J2033/14

G4S Cash Services SA (Pty) Ltd v NBCRFLI and Others (JR806/13, J2033/14) [2018] ZALCJHB 192 (1 June 2018)

employer bore the onus to show that the dismissal was fair. She accepted the employees consistent evidence that it was not his duty to handle receipts and that they were kept in the box room.

reasons at time of dismissal

JR751/2015

Ratlou Local Municipality v South African Local Government Bargaining Council (SALGBC) (JR751/2015) [2018] ZALCJHB 210 (20 June 2018)

Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC).

It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness orotherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal.

charges

JA4/18

EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August 2019)

[16]...The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed.[4] It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.

[17] In short, there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet - subject though to the general principle that the employee should not be prejudiced. Prejudice normally will only arise where the employee has been denied knowledge of the case he had to meet. Prejudice is absent if the record shows that had the employee been alerted to the possibility of a competent verdict on a disciplinary charge he would not have conducted his defence any differently or would not have had any other defence.[5]

charges: incorrect characterisation

PA10/2017

South African Police Service v Magwaxaza and Others (PA10/2017) [2019] ZALAC 66; [2020] 2 BLLR 151 (LAC); (2020) 41 ILJ 408 (LAC) (5 November 2019)

[43] In Mashigo v SAPS,[4] this Court referred with approval to what is stated in Woolworths v Commission for Conciliation Mediation and Arbitration and Others[5], namely, (quoting Le Roux and Van Niekerk[6]): The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of the applicable rules or standards.[7]

the sanction of dismissal was appropriate and fair.

inconsistency

JA138/2017

Department of Health (North West Province) v Strydom and Others (JA138/2017) [2019] ZALAC 75; (2020) 41 ILJ 619 (LAC) (26 November 2019)

[12] Second, the remark that seniority alone is insufficient to justify a different sanction, if intended as a statement of principle, is misconceived. It might be in a proper case. Relevant context ultimately governs the assessment of any factors deemed pertinent. On the facts of this case, it was an inappropriate criticism to advance because it misrepresents the Arbitrators findings, which, as cited above, did not rely on seniority in vacuo.

substitution of a sanction

JR2220/15

South African Municipal Workers Union and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2220/15) [2018] ZALCJHB 243 (10 July 2018)

SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others[(2016) 37 ILJ 655 (LAC)] (the Kruger case)

[28] In Kruger, the LAC reaffirmed the reasoning in Chatrooghoon. In upholding the decision of the Labour Court, the LAC stated:[28] Pillay J thereupon held that the arbitrator's decision that the dismissal of Mr Kruger, by means of a substituted sanction based on a non-existent authority to make such a substitution, was not unreasonable and dismissed the review application. The 'merits' of the allegations of misconduct did not affect that decision and Pillay J, correctly, did not deal with the arbitrator's treatment of that topic. In my view, that approach by Pillay J was correct because once the dismissal decision was up-ended on grounds of invalidity, there was no need to enquire further, and indeed no logical room or justification, to entertain an enquiry into that subject-matter. The arbitrator, who did so, was misled into undertaking such an enquiry, and ultimately regardless of the factual findings, they could have no impact on the ratio in the award; i.e the substituted sanction was invalid and for that reason the dismissal was unfair.[10]...[29] The LAC also considered the employers contention that the finding of unfairness in such instances should be confined only to the question of procedural fairness but that the substantive merits of whether a dismissal was warranted by the misconduct could still be entertained. After a long excursus, the court unequivocally held that the invalidity of a subsequent decision by an employer to dismiss an employee contrary to an earlier valid decision is fatal and disposes of the need for a separate enquiry into the substantive fairness of the dismissal based on the underlying merits:[42] Thus, in my view, it must follow that if the substitution of a sanction is invalid, as found in Chatrooghoon, that invalidity vitiates the act completely; ie it cannot be made. Invalidity is more than procedural unfairness, it denotes an unlawful act; ie one the law will not acknowledge. Accordingly, in my view Pillay J was correct to hold that an invalid substitution of a sanction was not merely an instance of procedural unfairness that might leave open a space for a parallel enquiry into the appropriateness of a remedy for such a 'procedural' mishap and, in turn, allow space to address the gravamen of the misconduct per se. Similarly, the contention that the judgment of Ndlovu JA, in Chatrooghoon, has application only to procedural unfairness cannot succeed because the force of those dicta by Ndlovu JA is that a substitution of a sanction without a lawful foundation is not merely unfair for want of a procedural authorisation, but is invalid.

County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 355 (LAC)

SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 355 (LAC) (the Chatrooghoon case)

[27] In Chatrooghoon, the LAC found that the employer had acted ultra vires the disciplinary code and collective agreement in substituting its own decision for that of the chairperson of the disciplinary enquiry, who imposed a sanction of fifteen days suspension without pay and a final written warning. The arbitrator had also found that there was no basis for finding the trust relationship had broken down.[8] The LAC decided that the sanction of the chairperson was the final one and not a mere recommendation.[9] Although the judgement did not starkly delineate its analysis of procedural and substantive fairness, the logic of the judgement makes it clear that in the circumstances, SARS was bound by the decision of the enquiry chairperson who decided that dismissal was not appropriate and therefore the employer could not defend a subsequent decision to impose a sanction of dismissal.

[34] The code makes no provision for the chairperson of the appeal hearing to make a recommendation, but requires him or her to decide the appeal. Moreover, the code makes no provision for any person other than the chairperson of the appeal hearing to decide the appeal. As such, Xulu had no power to reject Matsheketshekes recommendations and substitute them with his own decision. This is unlike Chatrooghoons case, where SARS altered a chairpersons decision, not a recommendation. All Xulu could have done was insist that Matsheketsheke take the appeal decision himself. Nevertheless, the upshot of all of this is that no decision, as such, was made on Bhengus appeal. That means the last competent decision taken under the code was that of the enquiry chairperson

consistency

Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC).

inconsistency claims, more particularly within the context of similarity of circumstances will fail where the employer is able to differentiate between employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of any other material factor.

consistency

JR958/16

JDG Trading (Pty) Ltd t/a Supply Chain Services v Myhill NO and Others (JR958/16) [2018] ZALCJHB 287; (2018) 39 ILJ 2550 (LC) (11 September 2018)

[17] An employer can act inconsistently by not enforcing a rule at a prior point in time, only to enforce it thereafter, without warning, in respect of the same employee. In that context, the inconsistency is based on the impression which is created that the rule or standard in no longer applicable; is not regarded as serious by the employer, that disciplinary action will not necessarily be taken for non-compliance with the rule or that the type of behaviour is condoned by the employer. If the rule is then suddenly enforced, resulting in dismissal, the inconsistent application of the rule by the employer will be a factor which must be considered in order to determine whether the dismissal was unfair...[21] He did not put this to his managers at the disciplinary hearing when he had the opportunity to do so but only presented evidence in this regard for the first time when the employers case was already closed. He also did not call any of his former managers to give evidence hereto during the arbitration proceedings...[22] ...This can never equate with a genuine bona fide belief that a policy is no longer applicable or not regarded as serious based on the inconsistent application of the policy by the employer.

Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC).

[10] The legal principles applicable to consistency in the exercise of discipline are set out in Item 7 (b) (iii) of the Code of Good Practice: Dismissal establishes as a guideline for testing the fairness of a dismissal for misconduct whether the rule or standard has been consistently applied by the employer. This is often referred to as the parity principle, a basic tenet of fairness that requires like cases to be treated alike. The courts have distinguished two forms of inconsistency historical and contemporaneous inconsistency. The former requires that an employer apply the penalty of dismissal consistently with the way in which the penalty has been applied to other employees in the past; the latter requires that the penalty be applied consistently as between two or more employees who commit the same misconduct. A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element - an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator (see, for example, Gcwensha v CCMA & Others [2006] 3 BLLR 234 (LAC) at paras 37-38). The objective element of the test to be applied is a comparator in the form of a similarly circumstanced employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant. (See Shoprite Checkers (Pty) Ltd v CCMA & Others [2001] 7 BLLR 840 (LC), at para 3.) Similarity of circumstance is the inevitably most controversial component of this test. An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors. (Own emphasis, references excluded)

National Union of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section) (JA2013/42) [2014] ZALAC 24 (15 May 2014) at para 25

The idea of inconsistency in employee discipline derives from the notion that it is unfair that like are not treated alike. The core of this factor in the application of employee discipline (it would be a misconception to call it a principle) is the rejection of capricious or arbitrary conduct by an employer.AndIt has application in two respects. Mainly, it is a recognition of the unfairness of the condemnation of one person for genuine misconduct when another indistinguishable case of misconduct by another person is condoned. The second application is the recognition of the unfairness that results when disparate sanctions are meted out for indistinguishable misconduct to different persons[5].

SA Commercial Catering and Allied Workers Union andOothers v Irvin & Johnson Ltd [1999] 20 ILJ 2302 (LAC).

"In my view too great an emphasis is quite frequently sought to be placed on the 'principle' of disciplinary consistency, also called the 'parity principle.' Consistency is simply an element of disciplinary fairness. Every employee must be measured by the same standards. Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair "(references not included).

Minister of Correctional Services v Mthembu NO and Others (JR953/04) [2006] ZALCJHB 30 (24 March 2006) at para 8.

The consideration of consistency or equality of treatment (the so-called parity principle) is an element of disciplinary fairness, and it is really the perception of bias inherent in selective discipline that makes it unfair. (See Early Bird Farms (Pty) Ltd v S Mlambo [1997] 5 BLLR 540 (LAC) at 545H-I; SA Commercial Catering And Allied Workers Union and Others v Irvin & Johnson Ltd [1999] 20 ILJ 2302 (LAC) at 2313D-E; Cape Town City Council v Masitho and Others [2000] 21 ILJ 1957 (LAC) at 1960F-1961F and National Union Metal Workers of SA v Henred Fruehauf Trailers [1994] ZASCA 153; 1995 (4) SA 456(A) at 463G-I.) When an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule, unfairness flows from the employees state of mind, i.e. the employees concerned were unaware that they would be dismissed for the offence in question. (own emphasis) When two or more employees engaged in the same or similar conduct at more or less the same time but only one or some of them are disciplined, or where different penalties are imposed, unfairness flows from the principle that like cases should, in fairness, be treated alike.

plea bargaining

JR545/15

Rinsa (Pty) Ltd t/a Ultra City Middleburg v National Union of Metalworkers of South Africa and Others (JR545/15) [2018] ZALCJHB 402 (5 December 2018)

MEC: Department of Health, ECP v PHSDSBC and Others [2016] ZALCPE 9; [2016] 6 BLLR 621 (LC); (2016) 37 ILJ 1429 (LC) at paras 38 to 42.

Court endorsed the concept of plea bargaining in the labour law context and held that it does not constitute inconsistent application of discipline. However, the Court was emphatic that the exercise of that discretion should not be informed by mala fides and hinted that the decision to offer a plea deal were not fairly exercised would include:[4](a) that the evidence the witness gave was not reasonably necessary to secure a guilty finding against the accused employees, including because such evidence was readily available from other sources;(b) an imbalance in the relative degree of culpability of the witness and the accused employees, such that the proverbial 'big fish' was used to secure a guilty finding against the 'little fish';(c) that the decision to conclude a plea agreement was induced by an improper motive such as obvious favouritism or capriciousness; and/or(d) unfair racial, gender or other discrimination in favour of the accomplice witness or against the remaining accused employees.

[9] In the present case, there is a glaring imbalance in the comparative degree of blameworthiness of Ms Mnguni, a 'big fish', and Mr Msiza, a 'little fish'. The commissioner was, accordingly, on point in treating Ms Mngunis evidence with caution.

seriousness of misconduct

JR1163/16

Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41; (2019) 40 ILJ 1625 (LC); [2019] 7 BLLR 703 (LC) (5 March 2019)

[29] Sidumo (supra) at para 78; National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC) at paras 17 18; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC) at para 14; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC) at para 54; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC) at para 34; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 37 38; Fidelity Cash Management (supra) at para 94.

[53] In deciding whether an employer acted fairly in deciding to dismiss an employee, a variety of factors must be considered, as a whole. These are, in sum, the following: (1) the importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (3) the harm caused by the employee's conduct; (4) whether additional training and instruction may result in the employee not repeating the misconduct; (5) the service record of the employee; (6) the breakdown of the trust / employment relationship between the employer and employee; (7) the existence or not of dishonesty; (8) the possibility of progressive discipline; (9) the existence or not of remorse; (10) the job function of the employee; and (11) the employers disciplinary code and procedure.

Vodacom (Pty) Ltd v Byrne NO and Others (2012) 33 ILJ 2705 (LC) at para 9.

the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction

Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC) at 1037F-H. See also Commercial Catering and Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC).

In our view a disregard by an employee of his employer's authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship...

disciplinary hearing post resignation: [25] Whilst I concur with both Coetzee and Mzotsho on contractual principles, I do however disagree with the view that the employer may proceed with the disciplinary hearing without first approaching the court for an order for specific performance.

J1177/19

Naidoo and Another v Standard Bank SA Ltd and Another (J1177/19) [2019] ZALCJHB 168; [2019] 9 BLLR 934 (LC); (2019) 40 ILJ 2589 (LC) (24 May 2019)

1. The first respondent (Standard Bank of South Africa) has no power to discipline the first and second respondents subsequent to their resignation with immediate effect. 2. Standard Bank is interdicted from continuing with the disciplinary enquires against the applicants that were scheduled to commence on 16 March 2019 and 22 March 2019 respectively.

The effect of resignation

[14] In Sihlali v SA Broadcasting Corporation Ltd[1], resignation was held to be a unilateral termination of a contract of employment by the employee. Therefore, resignation brings an end to the contract of employment. In legal parlance, once an employee has resigned, he ceases to be an employee of that employer,

Toyota SA Motors (Pty) v CCMA and Others (2016) 37 ILJ 313 (CC); [2016] 3 BLLR 217 (CC); 2016 (3) BCLR 374 (CC) at para 142.

[15] It is a statutory requirement of our law, for an employee to give and serve an employer a notice period upon resignation. However, both parties may agree to waive the said notice period and the employee is free to leave. This is ideally a desirable event-free situation, however, there are instances where the employer does accept the resignation but however, wishes to hold the employee to its statutory or contractual notice period.[16] In giving effect to the principle in Toyota[3], one has to establish when does the resignation take effect. This will depend on the type of resignation: the first one will of course be resignation on notice, in this instance the resignation will only take effect at the end of the notice period. The second instance would be where an employee resigns with immediate effect, which means that the employee will not serve out his notice period and the resignation will take effect immediately.

[18] In Sihlali[4] the Court held that where an employee resigns without giving the required notice period, that employee breaches the employment contract. In this situation, what would be the recourse available to the employer?

Vodacom (Pty) Ltd v Motsa and Another [2016] 5 BLLR 523 (LC); (2016) 37 ILJ 1241 (LC).

When an employee gives the required notice the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice the employee breaches the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employees repudiation, cancel the contract and claim damages.

[19] At this juncture, it is apposite to deal with the misconception amongst employers that they have a right to refuse to accept a resignation-this is flawed and was frowned upon by the Court in Sihlali[6] where the Court held such conduct to amount to a form of indentured labour: it said:If resignation to be valid only once it is accepted by an employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment. Against his or her will. This cannot be-it would reduce the employment relationship to a form of indentured labour. [7]

Mtati v KPMG Services (Pty) Ltd [2016] ZALCJHB 403; [2017] 3 BLLR 315 (LC); (2017) 38 ILJ 1362 (LC) at para 25.

[24] In my view, the second letter of resignation of the applicant changed the status of the employee from that of being an employee, in the ordinary sense of the word, to that of being the erstwhile employee of the respondent. This means that the termination of the employment contract with immediate effect took away the right of the first respondent to proceed with the disciplinary hearing against her. The powers of the employer to discipline an employee post the resignation is well illustrated by what is said in the decision of the Labour Appeal Court of Lesotho in the case of Mahamo v Nedbank Lesotho Limited, where it is held that:Resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance...Whilst the Respondent took every effort to ensure that the disciplinary hearing was procedurally fair, its efforts were unnecessary because the employment contract had already been terminated by the Applicant himself on 20th October 2000. . .

Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee anymore.

Interpreter

JR2537/17

Hestony Transport (Pty) Limited v Venter N.O and Others (JR2537/17) [2019] ZALCJHB 175 (12 July 2019)

[35] There exists no reason why the Chairperson did not obtain the services of an Interpreter and he deviated from the preferred language despite the fact that the right to understand proceedings is a cornerstone of the LRA. The Applicant was in fact deprived of a very basic right.[36] The internal hearing was not conducted in a fair manner and the process was unfair. It therefore follows that the dismissal was procedurally unfair.

Trade union representation

JR2462/18

Independent Municipal and Allied Trade Union (IMATU) v South African Local Government Bargaining Council and Others (JR2462/18) [2019] ZALCJHB 240 (12 September 2019)

NUMSA v Bader Bop (Pty) Ltd and Another 2003 (3) SA 513 (CC).

[34] Of importance to the case in the ILO jurisprudence described is firstly the principle that freedom of association is ordinarily interpreted to afford trade unions the right to recruit members and to represent those members at least in individual workplace grievancesThe first principle is closely related to the principle of freedom of association entrenched in section 18 of our Constitution, which is given specific content in the right to form and join a trade union entrenched in section 23(2)(a), and the right of trade unions to organise in section 23(4)(b). These rights will be impaired where workers are not permitted to have their union represent them in workplace disciplinary and grievance matters, but be required to be represented by a rival union that they have chosen not to join

[36] Taking these two principles togetherwould suggest that a reading of the Act which permitted minority unions the right to strikefor the purposes of the representation of union members in grievances and disciplinary procedures would be more in accordance with the principle of freedom of association entrenched in the ILO Conventions.

Reason of dismissal is dismissal at time of dismissal

J1788/19

Mokoena v Merafong Municipality and Others (J1788/19) [2019] ZALCJHB 226; (2020) 41 ILJ 234 (LC) (13 September 2019)

Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 32.

It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal.

doctrine of the right of election: disciplinary hearing that the sanction imposed on the Employee be amended from Final Written Warning to Dismissal.

JR444/2017

Beyers v Anglo American Platinum Ltd Mogalakwena Section and Others (JR444/2017) [2019] ZALCJHB 272; [2020] 2 BLLR 173 (LC); (2020) 41 ILJ 1376 (LC) (11 October 2019)

[18] It is common cause that the Disciplinary Code did not confer Anglo American with powers to review a chairpersons decision. Therefore, the onus was on Anglo American to prove, on balance of probabilities, that it was entitled to review its own sanction.

Samson v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 170 (LC); [2009] 11 BLLR 1119 (LC) at para 11.

[12] the law as it presently stands is that an employer is entitled, when it is fair to do so (subject to the qualification that it is only in exceptional circumstances that it will be fair) to revisit a penalty already imposed and substitute it with a more severe sanction. (Emphasis added)

Country Fair Foods (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration and Others (2003) 24 ILJ 355 (LAC) at paras 22 to 23.

[22] In BMW SA (Pty) Ltd v Van der Walt (2001) 21 ILJ 113 (LAC) Conradie JA cautioned against the importation of the principles of autrefois acquit into labour law. He then made two cautionary remarks:It may be that the second disciplinary enquiry is ultra vires the employers disciplinary code (Strydom v Usko Ltd [1997] 3 BLLR 343 (CCMA) at 350FG). That might be a stumbling block. Secondly, it would probably not be considered to be fair to hold more than one disciplinary enquiry save in rather exceptional circumstances (at paragraph 12).[23] In the present case appellant acted without recourse to the express provision of its disciplinary code and on the basis of no precedent. Second respondent decided that the evidence put up by appellant did not justify interference with the Kemp enquiry. In my view, there is no basis for concluding that the decision of second respondent was unjustifiable, in terms of the evidence which was presented at the arbitration hearing.[9]

Rabie v Department of Trade and Industry and Another (LC), unreported case no J515/18 (5 March 20180 at para 27.

[27] Another reason why abandoning the pre-dismissal arbitration is unlawful is that it is impermissible in terms of the doctrine of the right of election which has since been endorsed by the Constitutional Court in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others.[11] The Constitutional Court referred with approval to Chamber of Mines of South Africa v National Union of Mineworkers and Another[12] where it was stated that:One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternative and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application. A useful illustration of the principle is offered in the relationship between master and servant when there comes to the knowledge of the former some conduct on the part of the latter justifying the servants dismissal. The position in which the master then finds himself is thus described by Bristowe J in Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 786:It seems to me that as soon as an act or group of acts clearly justifying dismissal comes to the knowledge of the employer it is for him to elect whether he will determine the contract or retain the servant He must be allowed a reasonable time within which to make his election. Still, make it he must, and having once made it he must abide by it. In this, as in all cases of election, he cannot first take one road and then turn back and take another. Quod semel placuit in electionibus amplius displicere non potest (see Coke Litt 146, and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an unequivocal act has been performed, that is, an act which necessarily supposes an election in a particular direction, that is conclusive proof of the election having taken place.The above statement of the principle may require amplification in the following respect indicated by Spencer Bower Estoppel by Representation (1923) para 244 at 224 - 5:It is not... quite correct to say nakedly that a right of election, when once exercised, is exhausted and irrevocable, or in Coke's phraseology: quod semel in electionibus placuit amplius displicere non potest, as if mere mutability were for its own sake alone banned and penalized by the law as a public offence, irrespective of the question whether any individual has been injured by the volte-face. It is not so. A man may change his mind as often as he pleases, so long as no injustice is thereby done to another. If there is no person who raises any objection, having the right to do so, the law raises none. (Emphasis added)

[36] It follows that, in the absence of exceptional circumstances, Anglo Americans volte face was patently unjust to Mr Beyers; hence his objection. The dictates of modest fairness between employer and employee demand that his objection should be sustained.

Remorse

JR1743/17

Bidair Services (Pty) Ltd v Sekhabisa N.O and Others (JR174317) [2019] ZALCJHB 328 (26 November 2019)

Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at para 46. Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:

There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.

[55] Without the requisite remorse, it is not possible to restore the relationship of trust that forms the foundation of the employment relationship. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1051 (LAC) at para 25.

As said in De Beers supra[Id at para 22. See also Rustenburg Platinum Mines Ltd (Rustenburg Section) v National Union of Mineworkers and Others (2001) 22 ILJ 658 (LAC) at paras 21 22.]:A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society's moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer's enterprise.'

charges

JR2099/16

Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)

National Battery (Pty) Ltd v Matshoba and Others,[(2010) 5 BLLR 534 (LC).] the court pointed out that the labels assigned to the misconduct are irrelevant the point is whether the evidence demonstrates a case of wrongdoing.

EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) at paras 14 -16.

[15] One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so. However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.[16] Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards. (Emphasis added)

Fairness is the hallmark of the law of dismissal

Inconsistancy

JR1889/14

South African Airways Technical SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1889/14) [2020] ZALCJHB 58 (3 March 2020)

Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 860 (LAC) at para 31

This Court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.

[50] It is my view that even if an employee is able to identify the persons who were treated differently and the basis upon which they ought not to have been treated differently, the enquiry does not end at that point, in that there are other factors to be considered, including but not limited to personal circumstances of individual employees, their positions and responsibilities at the workplace, the overall effect of the misconduct in question, the employees posture after the misconduct in question, including at internal disciplinary hearings and arbitration proceedings.

After dismissal

JR 78/18

Zistics Transport CC v DUSWO and Others (JR 78/18) [2020] ZALCJHB 220 (7 May 2020)

Semenya v CCMA and others (2006) 27 ILJ 1627 (LAC)

The technical defence that since the disciplinary enquiry was scheduled for 17 March 2017 is not helpful to the applicant in light of the uncontested evidence of the dismissed employees. It is not unusual for an employer to hold a disciplinary hearing after a dismissal of an employee[4]. Thus, it is no answer that since a hearing was still to happen then ex hypothesi there was no dismissal factually.

Delay

JR 2236/17

Laubscher v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 1053 (LC) (15 June 2020)

[54] It is trite that discipline must be brought in a prompt fashion. Failure to do so annihilates the disciplinary process and as a necessary consequence thereof that the charges against the employee could fall away in totality. In the unreported judgment of Fritz Letsoni Mohlala v The South African Post Office and Others[16], the Labour Court held that the delay in the disciplinary process was unfair and that justice delayed is justice denied.

By Zoom or MS Teams

J 814/20

Mokoena v Merafong City Local Municipality and Another (J 814/20) [2020] ZALCJHB 135 (24 August 2020)

24.5 The applicants conduct however after the final postponement of 14 July 2020 demonstrated her outright resistance to the holding of the enquiry. Flowing from that postponement, she and her representative knew that proceedings would be held via Zoom or MS Teams. No objection was raised at the time, and no effort was made to advise the Municipality of any problems that may be anticipated in holding the hearings on a virtual platform.

24.8.1 In objecting to the convening of the hearings over the Zoom platform, it is clear the applicant had used such a platform before as evident from her legal representatives submissions, who had indeed confirmed such a fact, albeit addressing the challenges posed by Zoom[10].

24.8.6 Worst all, throughout the alleged connectivity problems that she had experienced whilst Ngcobo was at her residence, not once did the applicant make any attempt to call or contact De Swardt or the Chairperson, let alone instruct her representative to do the same, and informed them of the alleged connectivity problems.

substitute the sanction with that of another sanction

[18] In the matter of Branford Metrorail Services (Durban) and Others[[2004] 3 BLLR 199 (LAC).] the Labour Appeal Court (LAC) held that in the labour context the yardstick is fairness. Therefore fairness would dictate whether an employer could substitute a decision of the chairperson but then only in exceptional circumstances....[19] However, as in Branford supra the LAC stated that if the employer were to revisit the sanction imposed by the chairperson and was to impose a different sanction same must be done only in circumstances where it is not ultra vires the disciplinary code and which are exceptional. There too, the LAC qualified this by stating that the employer would then have to convene a second enquiry, which would be unfair if, in the first enquiry, the merits and facts of the misconduct were manifestly dealt with.

This was echoed by the Labour Court in Samson v CCMA and Others[(2010) 31 ILJ 170 (LC).] stated that:An employer is entitled to, when it is fair to do, in exceptional circumstances may revisit a penalty and substitute it with a more severe sanction.

[20] The issue the Courts grapple with is delegated authority. An employer, when appointing a chairperson, delegates the authority to discipline that employee to that chairperson. Therefore, for all intents and purposes the chairperson is the employer and his/her decision is that of the employer. Therefore, for the employer to then, when unhappy, substitute the decision would be functus officio, as the authority to discipline has already been accomplished, which is akin to res judicata. The employee was charged, he/she answered to the case and a finding was made. It could not be seen to be fair to then subject them to the wills and fancies of the employer which would then circumvent the provisions of the LRA which is to allow for a fair procedure when disciplining ones workforce.

[22] In SARS v CCMA (Kruger)((2016) 37 ILJ 655 (LAC).) the LAC held that:The established law about an employer being disallowed from interfering in the outcome of a disciplinary enquiry where the chair has the power to make a final decision, which is the crucial issue in this appeal, has, at its aim, the protection of workers from arbitrary interference with discipline in a fair system of labour relations. This principle is worthy of protection.[23] Therefore, the chairperson is clothed with the persona of the employer and their decision is therefore final and binding on the employer. The employer cannot arbitrarily substitute the sanction for one of its own.

[28] Therefore, this decision confirms the principle laid in SARS v Kruger that if there is a collective agreement in place the sanction cannot be substituted. If it is, then the dismissal is unfair, and the arbitrator should enquire into section 193 of the LRA to see if re-instatement is practical or not.

[30] In light of the case law, if there is no collective agreement or disciplinary code in place, an employer may substitute the sanction of a disciplinary chairperson if it is fair to do so and with engaging the employee, either in another disciplinary enquiry or to have the employee make submissions.

[36] In her findings termed Disciplinary Sanction Recommendation, the chairperson of the disciplinary hearing imposed a sanction of a final warning. To an extent that the Code makes no provision for the substitution of sanction by AMSA, the substitution of the sanction by AMSA was in violation of the Code and therefore invalid. It follows therefore that the term used by the chairperson to describe her finding is of no consequence.

An invalid dismissal is a nullity: Employer summarily dismissing employee because of recusal applications lodged by employee.

JA 36/2019

South African Broadcasting Corporation SOC Ltd v Phasha (JA 36/2019) [2020] ZALAC 50 (27 November 2020)

[34] The argument on behalf of the appellant was that if there was a case of wrongful dismissal, it had to be grounded in the concept of fairness. But under the reasoning employed in this judgment, the ultimate finding is that by attempting to circumvent the process in terms of s 188A of the LRA, the appellant acted unlawfully. The distinction between fairness and unlawfulness was emphasised by the Constitutional Court in Steenkamp and others v Edcon Ltd (National Union of Metal Workers of SA intervening) (2016) 37 ILJ 564 (CC) paras 189 and 192 where the court said that:An invalid dismissal is a nullity. In the eyes of the law an employee whose dismissal is invalid has never been dismissed. If, in the eyes of the law, that employee has never been dismissed, that means that the employee remains in his or her position in the employ of the employerIt is an employee whose dismissal is unfair that requires an order of reinstatement. An employee whose dismissal is invalid does not need an order of reinstatement if an employee whose dismissal has been declared invalid is prevented by the employer from entering the workplace to perform his or her duties in an appropriate case a court may interdict the employer from preventing the employee from reporting for duty or from performing his or her duties. The court may also make an order that the employer must allow the employee into the workplace for purpose of performing his or her duties. However it cannot order the reinstatement of the employees. (para 192)

[35] That must be the position in this case given the finding to which this court has arrived; that unlawfulness renders the initial decision void. And that means that the respondent is entitled to be put back into a position from which she was unlawfully removed. This finding, of course, has nothing to say about the merits of the allegations that were to be determined by the s188A process until it was subverted by appellants action to dismiss on an ostensibly separate ground. That dispute will doubtless still await determination.

Parity principle

JA106/2019

Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others (JA106/2019) [2021] ZALAC 11 (26 May 2021)

[25] In this connection, it is regrettable that the approach adopted both by the second respondent and the court a quo stands in contradiction that of this Court as set out in Absa Bank Ltd v Naidu and others [2015] BLLR 1 (LAC). Ndlovu JA, after a careful analysis of the existing jurisprudence regarding discriminatory decisions with regard to dismissal stated at para 35:It is trite that the concept of parity, in the juristic sense, denotes a sense of fairness and equality before the law which are fundamental pillars of the administration of justice.The learned judge of appeal then went on to say:It ought to be realised, in my view, that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard I am inclined to agree with Professor Grogan when he remarks as follows:The parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because disciplinary officers had different views on the appropriate penalty. (at para 36).

bias existed on the part of the chairperson

J119/21

Ndlovu v Chaane N.O and Another (J119/21) [2021] ZALCJHB 20 (1 March 2021)

during the brief adjournment of the proceedings...in assisting a witness to locate the document which a witness was struggling to find

the applicant is seeking a final relief which in effect extinguishes the second respondent's right to proceed with the disciplinary hearing or to discipline her at all.

[23] The exceptional circumstances calling for the Court's intervention must be found in the applicant's pleaded case and not based on arguments of a mere suspicion that she will not receive a fair hearing.

[26] There is abundance of evidence to the effect that the urgency claimed by the applicant is self-created and sadly at the expense of the tax payers.

Sanction

JR 82/18

Performing Arts Council of Free State v Commission for Conciliation, Mediation and Arbitration and Others (JR 82/18) [2021] ZALCJHB 70 (27 May 2021)

Sidumo supra n 2 at para 78; Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others [2016] ZALAC 40; (2016) 37 ILJ 2277 (LAC); National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82-85.

[26] Given the deductions I have made above, I am satisfied that the third respondent was guilty as charged. When it comes to the sanction, the enquiry on the appropriateness thereof entails a consideration of the totality of circumstances which, inter alia, include the importance of the rule breached, the reason the employer imposed the sanction of dismissal, the basis of the employee's challenge to the dismissal, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.[15]

Autozone v Dispute Resolution Centre of Motor Industry & Others (2019) 40 ILJ 1501 (LAC) at paras 12-13.

While as a CEO, he was the custodian of discipline and yet he failed to lead by example or show any remorse. In my view, it is apparent from the conduct of the third respondent and the circumstances that led to his dismissal that the employment relationship is irreparably damaged and dismissal accordingly warranted.[16]

interdicted from invoking a secondary disciplinary process (double jeopardy)

J 528/21

Mogaladi and Another v Public Protector South Africa (J 528/21) [2021] ZALCJHB 64 (28 May 2021)

[12] See also Samson v Commission for Conciliation, Mediation and Arbitration and Others (D460/08) [2009] ZALC 64; (2010) 31 ILJ 170 (LC); [2009] 11 BLLR 1119 (LC) at para 12

22.1 On a general level, it is correct that an employer has a right to subject an employee to a second disciplinary inquiry on the same issue in respect of which he has already been found guilty and has had a sanction imposed upon him when it is, in all the circumstances, fair to do so[12].

Branford v Metrorail Services (Durban) and Others (DA19/2002) [2003] ZALAC 16 (13 November 2003) At para 15

22.2 Exceptional circumstances is not however the only yardstick, as fairness dictates that the interests of the employee and the employer must be brought into account. The employer is entitled to revisit the offence by means of a second disciplinary hearing, as it would be manifestly unfair for the employer to be saddled with a quick, ill-informal and incorrect decision of its employers who misconceived the seriousness of the matter and took an inappropriate decision leading to an inappropriate penalty[13].

MEC for Finance: Kwazulu-Natal and Another v Dorkin NO and Another (DA16/05) [2007] ZALAC 34; [2008] 6 BLLR 540 (LAC) (21 December 2007) At paras 10 and 14

22.3 The conduct of disciplinary hearings in the workplace where the employer is the State constitutes administrative action, which is required to be lawful, reasonable and procedurally fair. However if it can be shown that the conduct or decision was not reasonable, that action can be reviewed and set aside[14].

Ntshangase v MEC for Finance: Kwazulu-Natal & Another 2010(3) SA 201 (SCA); (2009) 30 ILJ 2653 (SCA) at para 14

22.4 The decision of the chairperson of the hearing, acting qua state employer, qualifies as administrative action and that the chairpersons decision could be reviewed on such grounds as are permissible in law which would make the decision reviewable under section 158 (1)(h) of the LRA. In such circumstances, the state as an employer was not only entitled, but bound to take the chairpersons decision on review, and that it could competently do so in terms of section 158(1)(h) of the LRA which makes clear provision for such a review on such grounds as are permissible in law[15].

Hendricks v Overstrand Municipality and Another (CA24/2013) [2014] ZALAC 49; [2014] 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC)

This is so in that this Court has the power under section 158(1)(h) of the LRA to review the decision taken by a presiding officer of a disciplinary hearing on: i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds permissible in law[16].

SARS v CCMA & Others (Chatrooghoon) (DA 7/11) [2013] ZALAC 26; [2014] 1 BLLR 44 (LAC); (2014) 35 ILJ 656 (LAC) At para 28, where it was held;The wording of the collective agreement does not only make it abundantly clear that the chairpersons pronouncement on penalty is the final sanction...it also leaves no room for interpretation in favour of the parties having intended to provide in the collective agreement a term granting a right to SARS to substitute its own sanction for a sanction imposed by its chairperson. Whilst it is trite that the duty of trust and confidence on the part of an employee is a term implied by law in an employment contract, I do not think that such implied term extends to include, the right of an employer to substitute its own sanction for that of the chairperson, particularly...where the parties in a collective agreement elected expressly to confer on the disciplinary chairperson the sole power to impose the final sanction

SARS v Commission for Conciliation, Mediation & Arbitration & others (Kruger 1) (2016) 37 ILJ 655 (LAC) at paras 41- 42, where the Court held[41] In my view, the proper starting point for an understanding of the critical controversy is the jurisprudential character of the disciplinary enquiry chairs decision. It is plain that the person appointed to perform that function is clothed with the persona of the employer. The chairs decision is that of the employer. Anomalously, an employer that is an organ of state may review itself, an escape mechanism not available to employers in the private sector. But plainly, an employer that is an organ of state cannot unilaterally repudiate its own decision. So much is beyond doubt as a result of the judgments in Oudekraal Estates v City of Cape Town 2004 (6) SA 222 (SCA) at paragraphs 35 37, Benwenyama Minerals (Pty) Ltd Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) at paragraph 85, and Ntshangase (Supra).

Tshivhandekano v Minister of Mineral Resources and Others At paras 13 - 14

22.7 As already indicated, there are similarities between the facts of this case and those in Tshivhandekano v Minister of Mineral Resources and Others,[19] in that the employee had also in that case, approached this Court on an urgent basis to seek a declaratory order that his dismissal was unlawful and void ab initio. This was in circumstances where the employee had immediately approached the Court, upon the Director General having altered his final written warning into a dismissal. The Court (per La Grange J), had held that even though the State as employer had the right to review its own decisions, this did not equate to a right to simply take the matter into its own hands and reverse a decision already taken, as any subsequent sanction of dismissal would have been a fundamental breach of the applicants clear contractual right to a disciplinary hearing in terms of his contract of employment, making that decision to dismiss both ultra vires and in breach of his contract of employment[20].

25.11 In the light of the facts of this case and the authorities referred to, it should be concluded that to the extent that the Public Protector is a creature of the Constitution and subject to the law, and further to the extent that it is an organ of state because of constitutional powers and other statutory powers it exercises, it follows that it is bound by the sanctions imposed by the Chairperson. Further to the extent that the applicable Code does not authorise the Public Protector to alter a sanction imposed by the Chairperson, she cannot exercise such rights, as to do so would be ultra vires the Code which is binding on her.

employer's prerogative

J 533/2021

Marhule v Minister of Home Affairs and Others (J 533/2021) [2021] ZALCJHB 63 (30 May 2021)

[9] The reluctance on the part of the Court to willy-nilly intervene in internal disciplinary processes or to micro-manage these processes is based on the trite principle that the prerogative to discipline remains that of the employer, and any such undue interference invariably intrudes into the employers powers and rights to take disciplinary action. Furthermore, any such intrusions and interventions do not at all serve the principle of expeditious resolution of disputes and finalisation of internal processes at the workplace.

[5] See Booysen v Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC) at para 36, where it was held;To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.See also Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC); Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 17, where it was held:'Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings

double jeopardy and doctrine of election

JA122/2019

Anglo American Platinum Ltd v Beyers and Others (JA122/2019) [2021] ZALAC 16; [2021] 10 BLLR 965 (LAC); (2021) 42 ILJ 2149 (LAC) (2 July 2021)

[16] The primary grounds of appeal of the appellant relate to the following three main findings of the court a quo:16.1 It was incumbent upon the appellant to prove exceptional circumstances that justified its decision to review and change Mr Beyers sanction, and no such exceptional circumstances existed.

BMW (SA)(Pty) Ltd v Van Der Walt (2002) 21 ILJ 113 (LAC) at para [12].

[12] Whether or not a second disciplinary enquiry may be opened against an employee would what I consider, depend upon whether it is in all the circumstances fair to do so. I agree with the dicta in Amalgamated Engineering Union of SA and Others v Carlton Paper of SA (Pty) Ltd (1988) 9 ILJ 588(IC) at 596 A-D that it is unnecessary to ask oneself whether the principles of autrefois acquit or res judicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick. See also. Botha v Gengold [1996] BLLR 441 (IC).: Maliwa v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC). I should make two cautionary remarks. It may be that the second disciplinary enquiry is ultra vires the disciplinary code (Strydom v Usko Limited [1997] 3 BLLR 343 (CCMA) at 350 F-G. That might be a stumbling block. Secondly, it would probably not be considered to be fair to hold more than one disciplinary enquiry save in rather exceptional circumstances.

Branford v Metrorail Services (Durban & others)[(2003) 24 ILJ 2269 (LAC).] which held that fairness is the actual test to be applied when determining whether an employer may intervene in disciplinary proceedings and hold a second enquiry.

[21] In its judgment, the court a quo held that in the absence of exceptional circumstances justifying the review enquiry, the appellants conduct is impermissible in terms of the doctrine of the right of election which is fundamental in our law and espoused in labour matters as well. In this regard, the court a quo relied on Rabie v Department of Trade and Industry and Another [(J515/18) [2018] ZALCJHB 78 (5 March 2018)]and stated:[27] Another reason why abandoning the pre-dismissal arbitration is unlawful is that it is impermissible in terms of the doctrine of the right of election which has since been endorsed by the Constitutional Court in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others. The Constitutional Court referred with approval to Chambers of Mines of South Africa v National Union of Mineworkers and Anotherwhere it stated that:One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternatives and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application.

[26] In National Union of Metalworkers of SA v Vetsak Co-operative Ltd, [[1996] ZASCA 69; 1996 (4) SA 577 (A) at 476.] the court made the following remarks on fairness:Fairness comprehends that regard must be had not only to the position and interests of the workers, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgement to established facts and circumstances (NUM v Free State Cons at 4461). And in doing so it must have due regard to the objectives sought to be achieved by the Act. In my view, it would be unwise and undesirable to lay down, or attempt to lay down any universally applicable test for deciding what is fair.

[27] In the decision in Branford,[(2003) 24 ILJ 2269 (LAC) para 15.] the majority held inter alia that:[15] Although during the hearing of this appeal Mr Bingham, for the appellant contended that the test laid down in Van der Walts case (was that a second enquiry was permissible only in exceptional circumstances, that is not borne out by dictum in para [12] quoted above. In that paragraph it is quite clear that Conradie AJ considered fairness alone to be the decisive factor in determining whether or not the second enquiry is justified. The learned judge of appeal mentioned the issue of exceptional circumstances merely as one of the two caveats and not as the actual or real test to be applied. Therefore, in my view, it is incorrect to contend that the test espoused in Van der Walt is that a second enquiry would only be permissible in exceptional circumstances. The current legal position as pronounced in Van de Walt is that a second enquiry would be justified if it would be fair to institute it.

[30] In MEC for Finance KwaZulu-Natal- and Another v Dorkin NO and Another[[2008] 6 BLLR 540 (LAC) at para 14.] this court held that while the test was ultimately one of fairness, it would probably be unfair to subject an employee to further disciplinary action except in exceptional circumstances. It was held there that:[14] The decision of the majority in the BMW case sanctioned a second disciplinary as a way for an employer to achieve that if, in all the circumstances, it is fair to do so, and it expressed the view that it would probably be unfair to subject an employee to a second disciplinary hearing except in exceptional circumstances. In the light of that decision it would be consistent with that decision to hold in this case that this case presented exceptional circumstances and the second applicant had a right to approach the Labour Court to alter the decision on sanction made by the first respondent.

[31] A reading of the above mentioned judgments, and to the extent that the principle of fairness and fairness alone was enunciated as a threshold or test in matters of this nature, it is evident that the threshold of fairness at all relevant times is to be informed by all the established circumstances of the relevant case relied upon by the employer to interfere with the disciplinary hearing sanction. In particular, fairness is informed by established exceptional circumstances.[32] At all the relevant times the appellant was aware of the final written warning sanction, accepted it and acted in accordance with its terms by re-training Mr Beyers on the lockout procedure and subsequently instructed him to report for duty. The appellant had no objection to the sanction until the Union raised a complaint in this regard.[33] If the employer relies on a Unions concerns about the consistency of the disciplinary sanction imposed as in casu, and/or on the impact on the consistent application of discipline at a workplace, the employer was to establish such facts/circumstances through evidence properly placed before the arbitrator

charges: unduly technical approach to the framing and consideration

PA12/19

Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24; [2021] 11 BLLR 1096 (LAC) (5 August 2021)

[30] It has also been repeatedly held by this Court that there is a major difference between the wording of charges in criminal matters and that of charges in disciplinary proceedings, and that an unduly technical approach to the framing and consideration of the latter should be avoided.[Pailprint (Pty) Ltd v Lyster NO and others (2019 40 ILJ 2047 (LAC) para 18; First National Bank Ltd v Language (2013) 34 ILJ 3103 (LAC).] There is also authority in this Court that if the main charge of misconduct is not proved, but an attempt to commit such misconduct is proved, the employee may be found guilty of such an attempt on that same charge.

consistency

JA20/2020

Sasol Mine Limited v Nhlapo and Others (JA20/2020) [2021] ZALAC 28 (9 September 2021)

[40] The obligation upon an employer to act consistently in the application of discipline arises in two contexts in our law. The first is in relation to the application of the rule and the second is in relation to the imposition of sanction.[16] In both respects there can exist either contemporaneous inconsistency or historical consistency.

Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 452 (LC) at para 10.

The courts have distinguished two forms of inconsistency - historical and contemporaneous inconsistency. The former requires that the employer apply the penalty of dismissal consistently with the way in which the penalty has been applied to other employees in the past; the latter requires that the penalty be applied consistently as between two or more employees who commit the same misconduct.

urgent appliction to return electronic devices

J 748/21

Rand West City Local Municipality v Goba (J 748/21) [2021] ZALCJHB 157 (20 July 2021)

[50] No convincing reason has been put forward as to why the devices could not be handed over. In fact, it is evident from the opposing affidavit that the Respondent has not proffered a single reason or basis for his refusal to handover his laptop. The cellular phone and iPad had been subsidized by the Applicant as tools of trade for purposes of the execution of his official duties. The devices were not issued to the Respondent or subsidized for his personal use or other recreational purposes they were tools of trade. The Applicant is entitled to have access to the information on the devices, as it relates to the execution of his official duties.

consistency

JR 2827/18

Madikizela v City of Ekurhuleni Metropolitan Municipality and Another (JR 2827/18) [2021] ZALCJHB 205 (26 July 2021)

[105] First, and on the legal principles, the second respondent correctly summarized, in his award, what these are. I will suffice by saying that the Code of Good Practice in the LRA provides for consistency as a consideration in deciding the issue of the fairness of the sanction of dismissal.[Schedule 8 Item 3(6) which reads: The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.] Where instances of inconsistency are raised as a defence to dismissal as an appropriate sanction, this would form part of the value judgment that must be exercised in deciding whether dismissal is fair.[Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at paras 36 37; Consani Engineering (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at para 19.] The well-known judgment of SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd,[(1999) 20 ILJ 2302 (LAC) at para 29.] aptly determined the principles applicable to deciding inconsistency, as being: (1) Employees must be measured against the same standards (like for like comparison); (2) Did the chairperson of the disciplinary enquiry conscientiously and honestly determine the misconduct; (3) The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (in other words this conduct must be bona fide); and (4) A value judgment must always be exercised[SRV Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 135 (LC) at para 23.]. In general, inconsistency as a consideration is intended to protect employees against arbitrary conduct by the employer. Objective difference in circumstances is thus an important consideration.[Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 10] As described by the Court in Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[74]: A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.

procedure: right to be heard

JR 2095/16

Pilusa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2095/16) [2021] ZALCJHB 189 (29 July 2021)

[18] The real question to be answered in this regard is whether the applicant had been afforded a right to be heard? In JDG Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon,[(2000) 21 ILJ 501 (LAC) at paras 60-62.] the LAC rejected the contention rule of natural justice may be dispense with in a case of a senior employee who knew what his shortcomings were; and stated that:The opportunity which is given to a senior employee must still meet at least the two basic requirements of the audi alteram partem rule, namely, he must be given notice of the contemplated action and a proper opportunity to be heard. The reference to notice of the contemplated action necessarily implies that the action has not been decided upon finally as yet but that it is one which may or may not be taken depending on the representations which the affected person may give[] (Emphasis added)

[19] In my view, it cannot be said in the present instance that that applicant was really afforded a proper opportunity to be heard. It is hard to comprehend how was he expected to question the case of the third respondent if he was not given the details thereof prior to the disciplinary enquiry. To make matters worse, the applicant was also served with the charge sheet during the mine shutdown. It follows that the procedure that led to the applicants dismissal was not fair.

[22] In the circumstances of this case, I am satisfied that compensation that is equivalent to two months remuneration is just and equitable. The applicant was earning R22 90.00 per month at the time of his dismissal. As such, the total quantum is R45 800.00.

failure to follow internal prosesses

JR 1106/16

Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021)

[84] I will first deal with the ground that the findings were not conveyed to the applicant in 24 hours. Whist this is a breach of the Procedure, it does not follow that the dismissal of the applicant would be procedurally unfair as a result. Any issue of procedural unfairness must be evaluated by an arbitrator based on what is contained in Item 4(1) of the Code of Good Practice.[33] That being so, one must always be guided by the following dictum in Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others[(2006) 27 ILJ 1644 (LC) at 1651F-H.], which has been consistently applied in this Court: 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. [85] It must follow that any provisions in an employers disciplinary code and procedure containing detailed procedural prescripts in conducting a disciplinary process does not always result in a finding of procedural unfairness simply because those procedures have been contravened. I am not saying that the employer should simply ignore those provisions. It is of course true that where an employer defines its own process and sets its own procedural requirements, it should be expected to adhere to the same.[Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others (2013) 34 ILJ 1440 (LAC at para 44; Riekert v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 1706 (LC) at para 22.] An employer that does not comply with its own disciplinary code and procedure would thus always run the risk that such failure could be found to be procedurally unfair.[Black Mountain v CCMA and Others [2005] 1 BLLR 1 (LC) at para 13, the Court held: Where the employer's disciplinary code and policy provide for a particular approach it will generally be considered unfair to follow a different approach without legitimate justification. Justice requires that employers should be held to the standards they have adopted .] However, this obligation on an employer must always be tempered by considerations of workplace efficiency,[Schwartz v Sasol Polymers and Others (2017) 38 ILJ 915 (LAC) at para 13 it was said: workplace efficiencies should not be unduly impeded by onerous procedural requirements .] and / or no prejudice being suffered by the employee due to such failure. In Rand Water Board v Commission for Conciliation, Mediation and Arbitration and Others[(2005) 26 ILJ 2028 (LC) at para 9.], the court dealt with the failure by a chairperson of an appeal hearing to give reasons for her decision, which was prescribed by the disciplinary code of the employer, and held as follows: It would, in my view, be highly technical and wrong to regard such technical procedural defect on the part of the second respondent as constituting procedural unfairness justifying the compensation awarded or at all, particularly in the absence of evidence of any loss or prejudice suffered as a result thereof [86] Therefore, it may well be that even in the case of non-compliance by an employer with its own disciplinary code, that will not be procedurally unfair, based upon considerations of workplace efficiency and prejudice. This would of course be a fact specific enquiry, to be determined in each and every individual case. As held in South African Clothing and Textile workers Union and Others v Filtafelt (Pty) Ltd[(JS263/15) [2017] ZALCJHB 483 (14 November 2017) at para 114. Also compare Silverton Spraypainters (supra) at para 45.]:The point I wish to make is that procedural fairness is a holistic consideration, taking into account the provisions of the Code of Good Practice and the employers internal code and procedure. In this regard, the background events in the course of the entire disciplinary process must be considered.

charges: Gross negligence

JR2833/18

Telkom SA SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR2833/18) [2021] ZALCJHB 238 (16 August 2021)

[7] Gross negligence has been the subject of judicial commentary. In Transnet Ltd t/a Portnet v MV Stella Tingas[[2003] 1 All SA 286 (SCA) at 290-1] Scott JA defines the concept as follows:... [T]o qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorized as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.

procedure: absence from disciplinary hearing

JR2868/17

Mosiapoa v South African Local Government Bargaining Council and Others (JR2868/17) [2021] ZALCJHB 310 (9 September 2021)

Old Mutual Life Assurance Co SA v Gumbi [2007] 4 ALL SA SCA

[15]...deliberate absence from the disciplinary hearing does not affect the validity of the dismissal.

remorce

JR1986/20

Ndaa Food Manufacturing CC t/a Ndaa Bakery v Commission for Conciliation, Mediation and Arbitration and Others (JR1986/20) [2022] ZALCJHB 54 (15 March 2022)

[37] True remorse was explained in Absa Bank Ltd v Naidu and Others[(2015) 36 ILJ 602 (LAC) at para 46.] as follows: Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.[38] Without the requisite remorse, it is not possible to restore the relationship of trust that forms the foundation of the employment relationship. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2000) 21 ILJ 1051 (LAC) at para 25.] the Court said: Acknowledgment of wrong doing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken.

delay of almost two years from the date of the incident was procedurally unfair

JR 1696/17

Independent Communications Authority of South Africa v Malapane and Others (JR 1696/17) [2022] ZALCJHB 90 (7 April 2022)

[33] The Commissioners finding that delay of almost two years from the date of the incident was procedurally unfair cannot be faulted. In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others,[[2018] ZACC 3.] the apex Court observed that:[71] This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case.

[71] This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case.[72] In Moroenyane, the Labour Court considered factors which this Court initially propounded in Sanderson in the context of assessing delays in criminal prosecutions, and applied those factors to determine what constituted an unfair delay in the context of disciplinary proceedings. It held:(a) The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.(b) The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.(c) It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.(d) Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.(e) The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.(f) All the above considerations must be applied, not individually, but holistically.

[36] Grogan J[Workplace Law (7ed) Juta at p183:] pertinently opined as follows in respect of delayed disciplinary proceedings:once the employer has established that an employee is guilty of misconduct, disciplinary proceedings should be instituted within a reasonable time. Excessive delay may estop the employer from dismissing the employee The test, essentially one of fairness is whether the employee has been under the impression that the employer has forgiven them.

[38] In sum, the Commissioner reasonably found that the fairness of the procedure was vitiated by the inordinate delay.

Right to representation: Union constitution outside scope of industry: it may represent its member

JA29/2021

National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALAC 99; (2022) 43 ILJ 1998 (LAC); [2022] 10 BLLR 902 (LAC) (17 June 2022)

[24] Given their legal representation, the employees were not represented in the proceedings by an office-bearer or official of that partys registered trade union in terms of section 161(1)(c). Rather, NUMSAs representation of the employees took the form contemplated in section 200(1)(b) and (c) and section 200(2), in that the union acted as a party to the proceedings on behalf of or in the interest of the employees. Where a union chooses to represent employees on this basis, this Court has recognised that it acts collectively with its members, asserting its members rights and not its own.[MacDonalds Transport Upington (Pty) Ltd v AMCU and others (MacDonalds Transport) [2016] ZALAC 32; (2016) 37 (ILJ) 2593 (LAC); [2017] 2 BLLR 105 (LAC) at para 36.]

[26] The LRA distinguishes between individual employee rights and collective bargaining rights. In MacDonalds Transport,[at para 35] in the context of arbitration proceedings, it was stated:Certainly, when a union demands organisational rights which accord to it a particular status as a collective bargaining agent vis vis an employer, it asserts and must establish [that] it has a right to speak for workers by proving they are its members; sections 11 - 22 of the LRA regulate that right. But in dismissal proceedings (which, plainly, are not about collective bargaining) before the CCMA or a Bargaining Council forum, the union is not (usually) the party, but rather the worker is the party. It is the workers right to choose a representative, subject to restrictions on being represented by a legal practitioner, itself subject to a proper exercise of a discretion to allow such representation. When an individual applicant wants a particular union to represent him in a dismissal proceeding, the only relevant question is that workers right to choose that union.[13]

[32] In GIWUSA v Maseko and others,[21] the Labour Court affirmed the approach to interpreting a constitution of a voluntary organisation as one of benevolence, rather than of nit-picking, which ought to be aimed at the promotion of convenience and the preservation of rights.[22] This is to be contrasted with the approach taken by the Constitutional Court in Lufil:The contractual purpose of a unions constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document. Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership. When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope.[23]

[37] However, when an employee is represented in an individual dispute with their employer by such a union, such representation is aimed at providing effective access to justice and redress to the employee, where it is due, in accordance with both sections 23 and 38 of the Constitution and prevailing labour legislation. Unlike the exercise of organisational rights in an employers workplace, the employer has no interest, in an individual dispute between it and an employee, in holding the union to the terms of the unions constitution in order to limit the employees right to representation. This is so in that the unions scope of operation relates to the industries in which the union is entitled to organise and bargain collectively. That scope does not bar the representation of a union member by that union in an individual dispute with their employer. In the context of labour relations, and given the balance of power which exists between employer and employee in the workplace, to find differently would be manifestly unfair.

appeal not afforded to employee after internal hearing and dismissal

J 1520/2019

Maroleng v South African Broadcasting Corporation SOC Limited (J 1520/2019) [2022] ZALCJHB 319 (18 November 2022)

[4] These proceedings are brought in terms of section 77 (3) of the Basic Conditions of Employment Act, which extends jurisdiction to this court to hear and determine any matter concerning a contract of employment. In essence, the applicant contends that clause 5.1 of the respondents disciplinary code procedure was expressly incorporated in his contract of employment as a contractual term, and that the clause entitles him to an appeal against the decision to dismiss it.

[6]...Vakalisa v South African Weather Services and others [2017] 7 BLLR 729 (LC),...The court held that a proper reading of the rules thus did not disclose any agreement to be bound by reciprocal obligations arising from each and every policy issued by the employer. In those circumstances, there was no incorporation of the disciplinary policy by reference, and a claim for specific performance was thus not sustainable.

[10] But that is not the end of the enquiry. Even if I accept that clause 5.1 of the disciplinary code is a term of the applicants contract of employment, and one capable of surviving the termination of the applicants employment, specific performance remains a discretionary remedy. Relevant factors or grounds to be taken into account include a situation where damages would adequately compensate the plaintiff, where the order would create injustice or would be inequitable or where performance of the obligation is impossible or would produce undue hardship to the defendant (see Haynes v King Williamstown Municipality 1951 (2) SA 371 (A)). Ultimately, each case must be judged in the light of its own circumstances (see National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T)).

[12] In summary, although the applicants right to an appeal hearing was the subject of a contractual term it is not a term that ought properly, having regard to all of the circumstances, to be the subject of an order for specific performance.

derivative misconduct

JA38/2021

South African Commercial Catering and Allied Workers Union and Others v Makgopela and Others (JA38/2021) [2023] ZALAC 8 (14 March 2023)

[16] This matter concerns collective workplace misconduct in circumstances in which no individual employees were identified as having committed particular acts of misconduct and all employees in the branch were dismissed. Four different approaches to collective misconduct are discernable in our law. The first is that the employees may be charged collectively, with reliance placed on the doctrine of common purpose as the basis on which the misconduct was committed. A dismissal for misconduct based on common purpose arises as a consequence of the deemed participation of the employee as part of the group which committed the primary misconduct.

"[17] Involvement with the primary misconduct is proved through application of the general principles required to prove common purpose, as set out in cases such as Makhubela v S,[3] S v Mgedezi,[4] S v Thebus;[5] and Dewnath v S.[6] In general, common purpose will be proved if the individual was present at the scene of the misconduct; was aware of the misconduct; intended to make common cause with those who perpetrated it; manifested some common purpose with the perpetrators of the misconduct by performing an act of association with the conduct of the others; and possessed the requisite mens rea. In National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others[ [2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR 865 (CC); 2019 (5) SA 354 (CC); (2019) 40 ILJ 1957 (CC).] the Court clarified that:

‘Evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required…’. [8]"

"[18] The second form of collective misconduct discernable in our law is that of team misconduct, in which a number of employees are disciplined collectively as members of a team for the same misconduct, on the basis that the individual responsibility of individual employees in the team cannot be determined. Common purpose may be applied to cases of team misconduct but is not a necessity to prove the existence of such misconduct. As Grogan[9] has stated:

‘Team misconduct’ is …distinguishable from cases in which a number of workers simultaneously engaged in conduct with a common purpose. In cases of ‘team misconduct’ the employer dismisses a group of workers because responsibility for the collective conduct of the group is indivisible. It is accordingly unnecessary in cases of team misconduct to prove individual culpability, derivative misconduct or common purpose- the three grounds upon which dismissal for collective misconduct can otherwise be justified. The essence of team misconduct …is that the employees are dismissed because, as individual components of the group, each has culpably failed to ensure that the group complies with a rule or attains a performance standard set by the employer.’T Grogan Dismissal (Juta 2002)."

[20] The third form of collective misconduct recognised is that of “derivative misconduct”. In such a case the dismissal of an employee may be derivatively justified where misconduct was committed by others who have not been identified, in circumstances in which the employee was expressly requested by the employer to disclose information known to that employee pertinent to the wrongdoing, but consciously elected not to do so.[11] Dismissal on this basis is recognised as arising from a derivative duty on employees to disclose information about the commission and participation of their co-employees in the collective misconduct.[12] Reliance on derivative misconduct to justify a dismissal has however been recognised to be “premature until all avenues of some form of individual and culpable participation in the collective [misconduct]…are excluded”.[13]

[21] In Chauke v Lee Service Centre CC Motors (Chauke),[14] reference to a fourth approach to collective misconduct was made, namely that dismissals for collective misconduct may arise in circumstances in which the individual culpability of employees cannot be determined as a result of which there exists an operational rationale for their dismissal. The fact that misconduct is concerned with fault while operational requirements are not, means that reliance on the latter as a consequence of the former risks creating difficulties, such as those that arose in Food & Allied Workers Union on behalf of Kapesi v Premier Foods Ltd t/a Blue Ribbon Salt River.[15] In that matter this Court found a number of dismissals on grounds of operational requirements unfair in circumstances in which these had arisen as a consequence of a violent strike in which the culpability of individual employees in certain acts of violence was not proved. The employer was found to have failed to prove the fair and objective application of selection criteria, with “nothing more” proved “than that the selection was made subjectively”.[16]

[29] This case illustrates the caution to be adopted where reliance is placed on collective misconduct as a basis for dismissal. This is so given that workplace discipline must at all times be fair and just. As much is required by the Labour Relations Act[29] in giving meaning to the constitutional right to fair labour practices. Our law does not allow a determination of guilt simply by association. Where team misconduct is relied upon there must exist either a factual basis or sufficient grounds for inferring that all employees were indivisibly culpable as members of the team for failing to ensure compliance with the employer’s rule. A reliance on generalised facts, arising from a scant investigation into the alleged misconduct, does not provide a sufficient basis on which to infer that collective responsibility exists.

biased chairperson, representing employer at arbitration as well

JR823/20

Endeto Engineering (Pty) Ltd v Metal & Engineering Industries Bargaining Council and Others (JR823/20) [2023] ZALCJHB 26 (20 February 2023)

"[24] At the outset, I find Mr van Deventer’s role at the arbitration most peculiar. His role was not limited to being a witness, but he also represented the Applicant, as the employer party, at the arbitration.

[25] This immediately creates a conflict of interest. How could Mr van Deventer act on, the one hand, as an “independent” chairperson seized with determining Mr Nkabinde’s guilt and, on the other hand, act for the Applicant in its efforts to defend the dismissal?

[26] To make matters worse, Mr van Deventer’s evidence in essence was in defence of the disciplinary outcome, more particularly the process followed by him as chairperson. "

"[28] In dealing with the test concerning conflict of interest in the matter of Robinson v Ranfontein Estate Gold Mining Co Ltd, Innes CJ said the following:

‘[Conflict of interest] rests upon the broad doctrine that a man who stands in a position of trust towards another, cannot, in matters affected by that position, advance his own interest (e.g. by making a profit) at the others expense.’

[29] Lord Herschle in Bray v Ford stated as follows in this regard:

‘human nature being what it is, there is a danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those who he is bound to protect.’"

[30] It is clear that Mr van Deventer’s role at the arbitration was driven by interest rather than duty. His interest was to act on behalf of the employer and to defend his disciplinary finding. He failed in his duties as chairperson in so doing, because he abandoned his objectivity and impartiality.

"[31] It is glaringly obvious that a chairperson of a disciplinary hearing is non-suited to represent an employer in a subsequent dispute concerning that hearing, in the same vein that a chairperson would be non-suited to represent an employee.

[32] It should have been blatantly obvious to the Applicant and Mr van Deventer that this approach is not appropriate and while it is not subject of the arbitration award, it bears mentioning to demonstrate the Court’s dissatisfaction with this state of affairs."

Ill-fated strategies adopted to seek postponements

J214/23)

George v Xolani and Others (J214/23) [2023] ZALCJHB 70 (10 March 2023)

"2.1 The strategy is put into gear once the employee is served with the charges and the notice to appear at the enquiry. On the hearing date (if it had not been postponed several times already even before it has started), the employee will seek a discovery of documents, even if they are irrelevant to his case.

2.2 Repeated request for other documents will be made until there is nothing else to discover. Every time such a request is made, more stalling time is gained as the Chairperson has to allow the employee or his legal representative time to familiarise themselves with the documents. More time is lost as on every occasion the hearing sits, the employee would make various requests and objections including clarification and objection to the charges, and request for more documents as the charges are clarified.

2.3 With the presence of the employee’s legal representative, the legal games begin in earnest. In this regard, all manner of preliminary points will be raised, from non-compliance with various Municipal prescripts and the applicable collective bargaining agreements, the authority of the initiator or the chairperson, etc. Invariably, this will require of the Chairperson to adjourn the proceedings in order to consider these points. Upon receipt of an adverse ruling on these legal points, and upon the matter being set down on a particular date, the next strategy is to then just a few hours before the next sitting, for the employee to submit copies of medical certificates, some of which prima facie will appear suspect. The other favourite as part of the stalling tactics, is the sudden disappearance or unavailability of the employee’s witnesses from the workplace. In some cases, more time may be required to consult with or find the identified witnesses.

2.4 When the hearing is to commence, and when the penny drops that the employee has to answer to the charges of misconduct, the ultimate strategy at the hearing is to seek the recusal of the chairperson on a variety of nonsensical grounds. This is for no other reason other than that he had made adverse rulings on all other spurious preliminary points raised in the past.

2.5 When the recusal application is dismissed, in some instances, as in this case, the legal representative would suddenly withdraw from the matter, thus leaving the employee on his own. This necessarily means that the chairperson must again adjourn the proceedings and allow the employee time to secure another legal representative. Despite dates being set down by the chairperson, more postponements will be sought and granted, because the employee cannot find a legal representative.

2.6 At the next sitting the very same legal representative that initially withdrew, would re-appear, and be back on record. Upon being back, the legal representative’s starting point would be to request more time in order to re-familiarise himself with the matter and properly consult the employee and witnesses. In some instances, the representative would want to raise the same old stale preliminary points that have been dealt with before. When all of these tactics are thrown out, the legal representative would then seek a further postponement, as he intends to approach this Court on an urgent basis to challenge the rulings."

"[11] The question of whether the Court can intervene in on-going internal disciplinary proceedings has been before it on countless occasions and the principles in that regard are fairly settled. It is accepted that this Court has jurisdiction and the discretion to intervene in on-going disciplinary proceedings[Jiba v Minister: Department of Justice and Constitutional Development (2010) 31 ILJ 112 (LC) at para 11 – 12, and also para 17, where it was held;

“Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”]. It is however specifically required of an applicant to demonstrate exceptional circumstances necessitating such intervention, and to also demonstrate that grave injustice will result should the Court not intervene[ See Booysen v Minister of Safety and Security and others [2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112 (LAC) at para 54, where it was held;

“To answer the question that was before the court a quo, the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action. However, such an intervention should be exercised in exceptional cases. It is not appropriate to set out the test. It should be left to the discretion of the Labour Court to exercise such powers having regard to the facts of each case. Among the factors to be considered would in my view be whether failure to intervene would lead to grave injustice or whether justice might be attained by other means. The list is not exhaustive.”

See also City of Cape Town v South African Municipal Workers Union obo Abrahams & others [2012] 6 BLLR 535 (LAC) at para [16]; Magoda v Director-General of Rural Development and Land Reform and another [2017] 12 BLLR 1267 (LC); Zondo and Another v Uthukela District Municipality and Another (2015) 36 ILJ 502 (LC) at para 38; Phahlane v National Commissioner of the South African Police Services and Others (46485/18) [2020] ZAGPPHC 159 (4 May 2020) at paras 25 – 29.]."

[17]...Equally so, the applicant has not acted with the necessary expedition in approaching the court, in order to prevent harm. Furthermore, to the extent that we now know that the disciplinary enquiry has been completed, bar the outstanding outcome, all that the applicant can do is to wait, and should he be aggrieved by the outcome, he is at liberty to approach the relevant dispute resolution forum, where he can get substantial redress. Effectively, the matter is moot.

lapsed warning

JR80/2021

Nemukhovhani v General Public Service Sector Bargaining Council and Others (JR80/2021) [2023] ZALCJHB 88 (23 March 2023)

[81] The arbitrator referred to the Code of Good Practice which states that employers should keep records for employees, specifying the nature of transgression and the actions taken by the employer. The arbitrator held that the whole purpose of keeping record is to preserve the details of the proceedings for future reference. The record of the warning is not destroyed as soon as the warning lapses. Relying on Shoprite Checkers (Pty) Ltd v Ramdaw NO and others[[2001] 9 BLLR 1011 (LAC).] (Shoprite), where the LAC held that there is no fixed rule against taking lapsed warnings into account when deciding the penalty for later misconduct.

[85] The Applicant confused the validity of a warning with the concept of a disciplinary record. A warning is valid for the period for which it was issued and after the expiry of the period, the warning lapses. The record that such a warning was issued, is a different concept and the period of validity of the warning, has no bearing on the record that such a warning was indeed issued.

"[86] In National Union of Mineworkers obo Selemela v Northam Platinum Ltd,[[[2008] ZALC 86; 2014] 9 BLLR 870 (LAC) at paras 38 – 39.] the LAC held that:

‘[38] Indeed, an employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings. In Gcwensha v CCMA and others, this Court stated as follows:

""An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings. An employee's duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances."""

"[87] The LAC confirmed that an employer is entitled to take into account the cumulative effect of an employee’s misconduct, even where the previous warning had lapsed. It was not unreasonable of the arbitrator to consider the Applicant’s disciplinary record in deciding the fairness of his dismissal.

remorse

JR1818/20

Scheepers v Transnet Bargaining Council and Others (JR1818/20) [2023] ZALCJHB 85 (28 March 2023)

"[49] This brings me to the issue of remorse. Ordinarily, the guilty plea of the applicant in the disciplinary hearing could legitimately have been seen to constitute an act of remorse, which would be an important factor mitigating against dismissal, considering the applicant’s long service (more than 16 years). But this possibility was completely undone by what the applicant then did when he pursued the matter to arbitration. One would have expected, if he unconditionally acknowledged wrongdoing and showed genuine contrition, which is what is expected to be found when true remorse exists, that he would follow the same approach in arbitration and embrace and express genuine contrition for his wrongdoing. But he did nothing of the sort. In Naidu supra[] the Court expressed the following instructive views:

‘Obviously, the fact of a guilty plea per se or mere verbal expression of remorse is not necessarily a demonstration of genuine contrition. It could be nothing more than shedding crocodile tears. Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:

'There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.' "

[50] To describe it as simply as possible, it is In my view that for the applicant to show genuine remorse, he needed to come to the arbitration, admit his misconduct, acknowledge that this constituted wrongdoing on his part, pleaded for forgiveness, and then only present a case relating to all the individual factors that an arbitrator is required to consider when deciding whether the conduct of an employer in deciding to impose the sanction of dismissal for that misconduct could be considered to be fair or unfair.[39] But the applicant did none of that.

"[51] So therefore, and in the end, the applicant in reality exhibited no contrition or any acknowledgment of possible wrongdoing, which is not true remorse, even where the applicant pleaded guilty. Without true remorse, there can be no rehabilitation or any possible restoration of the trust relationship.[41] The applicant, as held in Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others[42], ‘… exhibits a clear lack of understanding of the adverse consequences of her conduct and how this impacted on her trustworthiness as a senior manager in the third respondent …’. In my view, the following dictum in Burton and Others v Member of Executive Council, Department of Health, Eastern Cape Province and Others[43] is equally applicable in casu:

‘While the long-service and disciplinary record of the appellants were relevant considerations, the misconduct committed, and the harm which resulted from it, was of a serious nature and underpinned by dishonesty on the part of senior public sector employees. In Naidu this court recognised that ‘[g]enerally, a sanction of dismissal is justifiable and, indeed, warranted where the dishonesty involved is of a gross nature’. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others it was recognised that ‘[d]ismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise …’"

procedurally unfair

JR1818/20

Scheepers v Transnet Bargaining Council and Others (JR1818/20) [2023] ZALCJHB 85 (28 March 2023)

"[55] In addition, it is also always about whether the employee has suffered prejudice as a result of a procedural failure, even if it can be said that the employer did not comply with its own disciplinary code and procedure. In this regard, the employee must allege such prejudice, and ultimately it has to be found that such prejudice exists, in order for disciplinary proceedings to be held to be procedurally unfair.[47] Instructive, in my view, is the following dictum in Delport and others v S[48]:

‘The question in regard to irregularities is always whether they have resulted in a failure of justice. Bearing in mind that irregularities do not in and of themselves lead to a failure of justice, there is little likelihood of this Court, or any other, holding that they did in these circumstances.’"

"[54] In my view, and considering what actually happened in casu, none of these procedural complaints have any substance, for the reasons to follow. The point of departure in deciding such complaints was comprehensive dealt with in the judgment of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others[44]. The Court considered the provisions of the LRA, as well as Schedule 8 of that Act, and held as follows:[45]

‘… 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 1956 Labour Relations Act. 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.

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognize that for workers, true justice lies in a right to an expeditious and independent review of the employer's decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions is found wanting. For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgment that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.

The balance struck by the LRA thus recognizes not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognizes that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits. … The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee. ….’

Respectfully, I cannot agree more.[46] What happened in casu, where it concerns the disciplinary proceedings against the applicant, is overall considered in full conformity with the above objectives under the LRA."

[61]...Further, this is in any event an issue of substantive fairness which the second respondent must decide for herself, which she did. Where it comes to the requirements of procedural fairness in this regard, all that was necessary was for the applicant to have an opportunity to properly participate in the decision of arriving at a fair sanction, by making submissions and being heard on this.[51] In casu, this clearly happened, and the applicant came to the hearing prepared for this. The applicant made out no case that he was deprived of this opportunity. There can thus be no procedural unfairness in this regard.

warnings issued without disciplinary hearing:

JS 222/19

Hadebe v Media, Information and Communication Brand South Afr (JS 222/19) [2023] ZALCJHB 153 (23 May 2023)

" it was surmised that because there was no formal disciplinary hearing, Brand SA was wrong procedurally. Having so surmised, a decision was taken to have the final written warning withdrawn so as to hold a formal disciplinary hearing. As a result, on 18 January 2019, another compromise was reached under the tutelage of Commissioner Jooma. The terms of the compromised were reduced to writing and recorded thus:

“6.1 The parties agree that the dispute is resolved on the basis that the Respondent will retract the Final Written Warning with immediate effect.”"

where a sanction already imposed is retracted on account of being challenged, it remained the prerogative of Brand SA to still impose a sanction for any proven misconduct

JS 222/19

Hadebe v Media, Information and Communication Brand South Afr (JS 222/19) [2023] ZALCJHB 153 (23 May 2023)

"The fact that the Senior Accountant showed leniency and imposed a lesser sanction does not detract from the fact that she had committed a dismissible offence. The fact that Hadebe was displeased with a lesser sanction does not prevent Brand SA to review the sanction and impose one that the DCP provides[5]. Brand SA having imposed a sanction of dismissal for a misconduct that occurred before the referral, after the referral that does not alter the reason why such a sanction was imposed.

[18] On application of the legal causation test, the most proximate reason for the dismissal is the misconduct. It is indeed so that had Hadebe not complained about the fairness of the lesser sanction, she would have gone away with a lesser sanction. However that shall not mean that the misconduct that attracted that lesser sanction weans away. It remains the prerogative of Brand SA to maintain discipline. In an instance where a sanction already imposed is retracted on account of being challenged, it remained the prerogative of Brand SA to still impose a sanction for any proven misconduct. Therefore, the most likely cause for the dismissal is the misconduct as opposed to the referral."

While facing criminal charges

JS562/23

Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another (JS562/23) [2023] ZALCJHB 190 (15 June 2023)

Alleges laying of criminal charges compromised employee’s constitutional right to a fair trial – Avers evidence potentially given at disciplinary hearing could be self-incriminatory evidence in criminal proceedings – Whether an employer may be interdicted from starting or proceeding with disciplinary hearing where criminal charges have been laid – Criminal complaint or charge does not affect employer's ability to subject employee to disciplinary process

[17]...here are two circumstances in which the first respondent will face the prospect of disclosing information which may be relevant to whether he has committed the offence with which he is now charged. Firstly, he is called upon in these proceedings to answer the allegations made against him by the applicant in the founding affidavit if he is to avoid his estate being placed under a final liquidation order. There is, of course, no legal compulsion upon him to do so. Whether a court should intervene to relieve a person of the perhaps difficult choices he faces in that regard was considered by me in Davis v Tipp N.O and Others 1996 (1) SA 1152 (W), which was subsequently followed in Seapoint Computer Bureau (Pty) Ltd v Mcloughlin and De Wet NNO 1997 (2) SA 636 (W). I see no reason to depart from the conclusion which was reached in those cases. In my view, the choice which the first respondent may face between abandoning his defence to the civil proceedings or waiving his right to remain silent (cf Templeman LJ in Rank Film Distributors Ltd and Others v Video Information Centre and Others [1982] AC 381, especially at 423 D-G) does not constitute prejudice against which he should expect to be protected by a Court and I would not exercise my discretion in favour of the first respondent on those grounds alone”

"[20]...The court in Fourie[Fourie v Amatola Water Board (2001) 22 ILJ 694 (LC) para 13-14.] did express itself with regard to this situation and, in my view, settled the issue. I am in respectful agreement with the court in that matter. It said:

“In my view, there is no merit in the argument that it depends upon the stage at which the employer wishes to institute criminal proceedings whether the employer is entitled to go ahead with a disciplinary enquiry. In the present matter, as I have stated above, it would appear that the disciplinary enquiry will take place at a stage when criminal proceedings already have been instituted, although the proceedings are not yet pending. I see no difference, in principle, between this position and the position where criminal proceedings have not been instituted but are likely to be instituted or, on the other hand, where criminal proceedings are indeed pending. In all of these cases it is at least foreseeable, and more so in the last mentioned case, where it is highly probable, that the criminal proceedings will take place.

However, the employee concerned always has the choice whether to give evidence at the disciplinary enquiry, that is, whether he or she wishes to put up a defence. In other words, the employee has the choice whether to abandon his or her defence or, on the other hand, waive his or her right to remain silent. Clearly, there is some prejudice involved for such employee (who faces possible future criminal proceedings based upon the same alleged misconduct), but I would agree with the principles enunciated in the cases (quoted above) that it is not the type of prejudice against which the employee should expect to be protected by a court.”"

[26] In the context of, not only civil proceedings in general but more particularly, a disciplinary hearing in an employment situation, it has never been our law that the employer may be precluded from conducting a lawful and fair disciplinary enquiry to establish if one or more of its own employees has in fact conducted himself or herself contrary to an applicable code of conduct at the workplace. The employer has always had the right to maintain and enforce discipline at the workplace through a fair disciplinary process. This has never been seen to be in conflict with a situation in which the misconduct for which the employee is accused of at the workplace might also expose himself to criminal liability. The police, independently, have a duty to investigate criminal conduct regardless of who lays the criminal complaint. Even if the criminal complaint or charge is laid by an employer, that can never, in my view, stand in the way of that same employer subjecting the employee to a disciplinary process in the workplace.

Charge sheet: dates of misconduct added at hearing

JA96 / 2022

Murray and Roberts Cementation (Pty) Ltd v Association of Mine Workers and Construction Union obo Dube and Others (JA96 / 2022) [2023] ZALAC 26 (18 October 2023)

continuously misused sick leave and your conduct has demonstrated a person that you had virtually book sick leave before and after weekends/rest period

[20] In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others,[(2008) 29 ILJ 964 (LAC) at para 32.] it was stated that “it is an elementary principle … of labour law … that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal”. It is common cause that the reason for dismissal in this case was that the employee was absent from work without permission on 29 October and 4 November 2019 as contained in the charge sheet, including the extra days that were added at the hearing. It is inescapable therefore to conclude that a number of five days was crucial for the employer to make its case. Had it not been so, it should have been content with proceeding with one day (4 November) or two days (28 October and 4 November) if five consecutive days was not a requirement for dismissal. It was not fair therefore for the employee to be confronted with additional dates without him having been provided or afforded adequate notice and sufficient information in order for him to prepare for the hearing and to provide answers to the allegation.[10]

"[21] It was not open to the chairperson of the disciplinary hearing or the arbitrator to interpret the charge sheet in a manner not supported by an ordinary, grammatical and contextual reading.[Natal Joint Municipality Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)] For this reason, the arbitrator had misconstrued the true nature of the inquiry and his mandate. The enquiry was whether the employee had absented himself from work for five or longer continuous days without permission. In Sidumo[[2007] ZACC 22; 2008 (2) SA 24 (CC) at para 110.], it was held that:

‘…where a commissioner fails to have regard to material facts, the arbitration proceedings cannot in principle be said to be fair because the commissioner fails to perform his or her mandate. In so doing … the commissioner’s action prevents the aggrieved party from having its case fully and fairly determined. This constitutes a gross irregularity in the conduct of the arbitration proceedings as contemplated in section 145(2)(a)(ii) of the LRA. And the ensuing award falls to be set aside not because the result is wrong but because the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.’"

[22] In the circumstances, the arbitrator’s award stands to be reviewed and set aside for two reasons. First, because the charge sheet does not contain a dismissible offence in terms of the code of conduct, nor did the employer establish that the employee had been absent from work without permission for five or more consecutive days. Secondly, the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings when he failed to have regard to the evidence as a whole. He misinterpreted the reason for dismissal to mean absence for five days over a period instead of five days consecutively.

Delay

https://www.polity.org.za/article/excessive-delays-in-instituting-disciplinary-proceedings-may-taint-procedural-fairness-2024-01-25

Mapyane v South African Police Service & Others (JR1948/10) ZALCJHB (24 November 2023)

"On 25 January 2016, and after a delay of approximately three and half years in instituting the disciplinary hearing, Major General S.L. Mapyane, who was employed by the South African Police Service (SAPS) was dismissed for misconduct in respect of five charges of fraudulent travel claims for the period between August 2010 to July 2012. It was alleged that he claimed disbursements for official trips as if he had used his own private vehicles, when in fact, he had travelled in official SAPS vehicles. The five charges were similar, save for the dates and incidents when the contraventions supposedly occurred.

Mapyane approached the Safety and Security Sectoral Bargaining Council to challenge the procedural and substantive fairness of his dismissal. On procedural fairness, he contended that the SAPS flouted the South African Police Discipline Regulations, 2006 (Discipline Regulations), which required that the SAPS promptly institute disciplinary action. He further contended that the contravention of the Discipline Regulations tainted the overall substantive fairness of his dismissal. That being the case, Mapyane argued that the charges were vitiated by delay and ought to have been quashed.

The arbitrator found that Mapyane was trial prejudiced due to the excessive and unexplained delay and that the first three charges were vitiated by this delay. However, Mapyane’s dismissal based on the fourth and fifth charges was found to be procedurally and substantively fair.

Aggrieved by this outcome, Mapyane approached the Labour Court seeking to review and set aside the arbitration award. In Mapyane v South African Police Service & Others (JR1948/10) ZALCJHB (24 November 2023), Mapyane contended that, having found that the delay in instituting the disciplinary hearing was unreasonable, the arbitrator’s conclusion that his dismissal on charges four and five was fair, was irrational. He alleged that the arbitrator failed to appreciate the negative impact of the delay, being lapses in witnesses’ memory with time, the passing of his main witness in respect of charge four, and difficulties in securing evidence to refute the allegations. This, he alleged, rendered his dismissal procedurally unfair, and also vitiated the decision to dismiss him (Excessive Delay argument).

He further alleged that the arbitrator committed irregularities in the manner in which he evaluated the evidence. In particular, Mapyane argued that the arbitrator had failed to evaluate the inherent probabilities in the versions that were before him and relied solely on credibility findings, which ultimately resulted in an unreasonable outcome (Inherent Probabilities argument).

On the Excessive Delay argument, the Labour Court considered the decision of the Constitutional Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others, which endorsed the application of various criminal factors in labour law matters when considering the delay in instituting or finalising disciplinary proceedings.

These factors include the length of, and explanation for, the delay, whether the employee has taken steps to assert her/his right to a speedy process, any material prejudice to the employee caused by the delay and the nature of the alleged offence. In Stokwe, the Constitutional Court observed that the delay had a concrete impact on the employee’s disciplinary process and on her personally as she had to contend with an uncertain future, and this factor was found to have had a negative impact on the procedural fairness of the disciplinary hearing.

Based on this authority, the Labour Court found that the arbitrator failed to interrogate the effect of the excessive delay on the fairness of the procedure. Further, the arbitrator misconceived the nature of the enquiry by relying on Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and others. As a public authority, the SAPS was enjoined to observe the procedure set out in the Disciplinary Regulations and promptly attend to the disciplinary action. Therefore, the Labour Court found the three-and-a-half-year delay to have tainted the fairness of the procedure.

On whether this delay vitiated the sanction of dismissal, based on a waiver on the SAPS’ part to take disciplinary action against Mapyane, the Labour Court found that there was no evidence to support this. The Court found that Mapyane had been criminally charged for the same offence and the SAPS had engagements with the investigating officers who were investigating the disciplinary allegations. Accordingly, he could not have harboured any expectation that SAPS had waived its right to discipline him due to the delay.

In respect of the Inherent Probabilities argument, the Labour Court found the argument to be flawed, on the basis that the arbitrator made several findings of fact wherein he interrogated the versions and rejected Mapyane’s version in respect of the two charges of fraud.

In considering the appropriateness of the sanction of dismissal, the Labour Court held that Mapyane, as a Major General heading the serious organised crime unit, was expected to act in good faith and protect the interest of the SAPS as a custodian of discipline. Moreover, the Labour Court held that honesty and integrity are integral requirements of all positions within national law enforcement agencies such as the SAPS, and if not upheld, the credibility of these institutions and the confidence of the public in them would be undermined. In this regard, the Labour Court upheld the arbitrator’s findings in respect of substantive fairness.

Ultimately, having found the review to be successful only in relation to procedural unfairness, the Labour Court ordered compensation equivalent to three months’ salary as at the time of Mapyane’s dismissal.

Although decided in the context of a public sector employment relationship, this judgment is important for all employers as it highlights one of the objectives of the Labour Relations Act, to promote expedient resolution of labour disputes. In this regard, employers are reminded to take prompt disciplinary action against employees in cases of misconduct. While excessive and unreasonable delays may not automatically vitiate a dismissal or impair the substance of the case against an employee, such delays may taint procedural fairness."

Ceo contract does not include disciplinary requirement

J1550/2023

Nongogo v Khoza and Others (J1550/2023) [2024] ZALCJHB 13 (8 January 2024)

"[38] The simple text of the Disciplinary Policy and the applicant’s contract of employment in my view shows that the applicant was never intended to be a subject of the disciplinary policy. The CEO cannot be disciplined by management. He may only be disciplined by the Board, as the powers to appoint and dismiss him lies solely with the Board. This on its own goes to show that the procedures set out in the Disciplinary Policy do not make any provision for a disciplinary process in relation to a CEO. The plain reading of the contract of employment also makes it clear that the Disciplinary Code is not specifically incorporated into the applicant’s contract of employment.

[39] In any event, even if it is to be accepted that the Disciplinary Policy and Code is applicable to the applicant’s contract of employment the Disciplinary Policy does not make a formal disciplinary hearing compulsory. Clause 2 of the Disciplinary Policy, which provides for the scope of the disciplinary policy, indicates that the policy applies for managing discipline and where possible, initiating corrective or disciplinary action. The clause also lists behaviour and circumstances that may require disciplinary action."

procedural unfairness: appointment of an external Presiding Officer

JR 328/21

Mariemuthoo v Matshaka N.O and Others (JR 328/21) [2024] ZALCJHB 4 (15 January 2024)

"[47] The Labour Appeal Court in Highveld District Council v CCMA and others[[2002] 12 BLLR 1158 (LAC) at 1162 at para 16.] dealt with the consequences of a deviation from a Disciplinary Code in a pragmatic manner. The LAC held:

‘… The mere fact that the procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed, does not in itself mean that the procedure actually followed was unfair” …’

[48] The applicant has failed to set out why he was prejudiced by the appointment of an external Presiding Officer or demonstrated how this impacted on his right to a procedurally fair hearing.

charges (gross because he repeated the word “masepa”, he insulted the dignity of his supervisors by referring to them as “Boer” and “Boesman”)

JR1881-20

Association Of Mineworkers And Construction Workers Union obo Morobisi v Commission for Conciliation, Mediation and Arbitration and Others (JR1881-20) [2024] ZALCJHB 66 (26 January 2024)

"[17] It is trite that disciplinary enquiries are not meant to replicate the criminal justice module.[7] In Police & Prisons Civil Rights Union v Minister of Correctional Services and others,[[2018] ZACC 24; (1999) 20 ILJ 2416 (LC).] this Court held that the standard for a disciplinary charge sheet cannot be the same as one in a criminal trial. The Court went on to state that the information on the charge sheet must be sufficient for the employee to know the case she/he is to meet.

[18] This Court has also stated that there is no place for formal disciplinary procedures that incorporate all the accoutrements of a criminal trial, including technical and complex charge sheets.[Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others [2006] ZALC 44; (2006) 27 ILJ 1644 (LC) at p 1652.]

[19] In addition, this Court has held that disciplinary charges are not intended to be a precise statement of the elements of an offence but need only be sufficiently precise to allow the employee to identify the incident which forms the subject matter of the complaint in order for the employee to prepare a suitable defence.[Zeelie v Price Forbes (Northern Province) (1) (2001) 22 ILJ 2053 (LC) at para [37].]"

"[20] In Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration & Others,[(2011) 32 ILJ 2455 (LAC) at para [32].] the Labour Appeal Court (LAC) stated as follows:

‘… the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge-sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained…’"

"[21] In National Union of Mineworkers and others v Commission for Conciliation, Mediation and Arbitration and others[(2011) 32 ILJ 956 (LC) at paras [27] – [30].] (NUM), this Court held as follows:

‘[27] The applicants were charged with “aiding and abetting diamond theft”. On review, they complain that they were not charged with having broken fissure.

[28] The arbitrator found that the phrase “aiding and abetting diamond theft” was an umbrella term that included the breaking of fissure. He pointed out that “all witnesses for both parties agree that the activity with which the employees were charged consisted of the unauthorized breaking of fissure, that this was explained to the employees and their representative at the disciplinary proceedings, and that the activity in question is a dismissible offence”. He went on to state:

“Inelegant and poorly worded charges are a common feature of disciplinary proceedings in the workplace. There are occasions where the mis-description is of such a nature that it renders the ensuing disciplinary process and outcome unfair; and there are other occasions where this does not lead to unfairness. It is therefore necessary to look at the substance of the matter to see what actually transpired in this instance. As mentioned above, it was at all times clear to all parties what activity the employees were accused of - namely the unauthorized breaking of fissure.”

[29] The arbitrator went on to look at the description of the offence in the disciplinary code and the content of the charge. He confirmed the wording of the charge entails no unfairness to the employees.

[30] In my view, the arbitrator’s reasoning cannot be faulted…’"

[25] As stated in NUM, what is necessary is to look at the substance of the allegation, to consider what transpired. In the present case, the charge sheet, being sufficiently crafted to enable the applicant to answer the allegation and to provide a version as to whether or not he was disrespectful and whether or not he used derogatory terminology, on the totality of evidence before the second respondent, the arbitration award unreasonable. The second respondent categorising the offence as insolence does not make the substance of the allegation less serious. The second respondent is alive to this and applies his mind to the seriousness of the charge with the use of the word “gross”[15] and points Mr. Mokotsi to the third respondent’s disciplinary code, where the offence of gross insubordination is categorised with the offences of serious disrespect, imprudence or insolence. Mr Mogotsi’s evidence is that gross insubordination includes the misconduct of serious disrespect, impudence or insolence.[16]

where direct evidence of the breakdown of trust in the employment relationship has not been led

JR1881-20

Association Of Mineworkers And Construction Workers Union obo Morobisi v Commission for Conciliation, Mediation and Arbitration and Others (JR1881-20) [2024] ZALCJHB 66 (26 January 2024)

33] In Easi Access Rental (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[24] this Court found that, where direct evidence of the breakdown of trust in the employment relationship has not been led, the enquiry into the fairness of the dismissal by the commissioner includes a determination of whether the breakdown cannot be inferred from the nature of the offence. Therefore, the third respondent’s failure to lead direct evidence of the breakdown of the trust relationship does not in itself render the applicant’s dismissal unfair nor does it mean that the trust relationship has not broken down irretrievably. The second respondent found that the applicant failed to provide justification for his conduct notwithstanding the repeated reprimands and that such conduct was displayed in front of employees who are more senior to him.[25] Therefore, the unwillingness by the applicant to admit and acknowledge his conduct demonstrates that the trust relationship has broken down irretrievably.

final written warning

JR1186/22

Blessing v Commission for Conciliation, Mediation and Arbitration and Others (JR1186/22) [2024] ZALCJHB 51 (31 January 2024)

22] In cases of employees being subjected to a final written warning, I agree with the judgment in Transnet Freight Rail v Transnet Bargaining Council & others[(2011) 32 ILJ 1766 (LC) at para 38.], where it was stated that employees already on a final written warning, leave the employer with little choice but to dismiss them. In this judgment, the Labour Court further concluded that “the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature”[5], and that “the principles of progressive discipline required such a re-offending employee usually to be considered irredeemable”[6].

reprimand did not constitute “double jeopardy”

JR1926-21

Maruleng Local Municipality v Commission for Conciliation, Mediation and Arbitration (JR1926-21) [2024] ZALCJHB 81 (20 February 2024)

"The double jeopardy challenge

33.1. I agree with the municipality that the employer’s reprimand did not constitute “double jeopardy”, (punishment of an employee twice for the same offence) and the commissioner erred in that respect. The reprimand did not constitute a species of disciplinary sanction, but rather an “off the cuff” signal of disapproval."

charges: Being accomplice to the misconduct, derivative misconduct, being an accomplice is a competent verdict to the main charge

JR2519/21

Hollywood Sportsbrook Gauteng v Commission for Conciliation Mediation and Arbitration and Others (JR2519/21) [2024] ZALCJHB 146 (7 April 2024)

26] At this point, it is appropriate to consider the decision of NUMSA obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others[9]. In Dunlop, the Constitutional Court expanded on the principle dealing with derivative misconduct. It is the doctrine which could see the dismissal of employees for their failure to report misconduct of other employees, whose identity is not known to the employer.

"[27] The court held that the duty to inform an employer of the identity of perpetrators of misconduct arises from the duty of good faith. It also held that the duty to inform on employees is a two-way street between the employee and employer. The court stated the following:[10]

“Added to the difficulty of factually inferring a duty of disclosure is that the imposition of this kind of duty on the basis of good faith can never be unilateral. The duty to disclose must be accompanied by a reciprocal, concomitant duty on the part of the employer to protect the employee’s individual rights, including the fair labour practice right to effective collective bargaining. In the context of a strike, an employer’s reciprocal duty of good faith would require, at the very least, that employees’ safety should be guaranteed before expecting them to come forward and disclose information or exonerate themselves. Circumstances would truly have to be exceptional for this reciprocal duty of good faith to be jettisoned in favour of only a unilateral duty on the employee to disclose information. [added emphasis]

"29] Importantly, the court also determined the following:

“This immediate recourse to “derivative misconduct” in logic and practice seems premature until all avenues of some form of individual and culpable participation in the collective violence are excluded. Why? First, because the possible duty to disclose misconduct of others only arises once that misconduct is established. Second, because it would be wrong to use the duty to disclose as an easier means to dismiss, rather than dismissal for actual individual participation in violent misconduct itself. And third, it may result in the imposition of a harsher sanction on employees who did not take part in the actual primary misconduct.”[11] [added emphasis]"

30] By this, the court held that it can only be fair to discipline an employee for derivative misconduct until it has been established that the employee has not participated in the misconduct.

32] Secondly, it is questionable whether the employee had a duty to report the misconduct, given that the applicant was aware who the perpetrators were. The purpose of the doctrine is to assist employers identify the perpetrators. See also for example African Meat Industry & Allied Trade Union & others v Shave & Gibson Packaging (Pty) Ltd[12], where the employer made several requests to employees to identify perpetrators of misconduct during a protected strike. No information was forthcoming, and the employer charged employees for inter alia derivative misconduct, convened a disciplinary hearing against them, found them guilty and dismissed them. That the employer was in a position to identify the perpetrators of the misconduct, through for example photographs, Whitcher J held that it logically followed that “where the employer had the means to obtain the information, there would have been no ground to burden the employees with a duty to provide the information”.[13]

"36] One therefore firstly has to consider whether a charge of being an accomplice is a competent verdict to the main charge (i.e., failing to report the credit bets). The Law of South Africa (LAWSA) defines competent verdicts as follows:

“When the evidence does not prove the offence charged, but it does prove another offence which does not appear on the charge sheet as an alternative, the court may convict of the other offence if it is a competent verdict. Competent verdicts are the lesser offences implied by the main charge. A conviction of the lesser offence is permissible only when the main charge has not been proved.”[17]"

"[37] Joubert however, favours a definition which includes not only a lesser offence but also one that is “akin” to the crime not proved. He states that:

“It is possible that the evidence might fall short of proving the crime charged, but nevertheless succeeds in proving beyond reasonable doubt the commission of some other offence not specifically formulated as an alternative charge . . . to the charge in the indictment or charge-sheet, as the case may be. This type of situation is governed by the statutory rules pertaining to so-called competent verdicts, that is, the unexpressed or latent or implied charges which only surface once the crime charged is not proved but some other crime, which is normally lesser than or akin to the crime charged, is proved.”[18]

"38] In EOH, the employer charged the employee for acting dishonestly but dismissed the employee for gross negligence. The employee challenged his dismissal at the CCMA. The arbitrator found the employee’s dismissal to be substantively unfair in that he had not been charged for gross negligence. The commissioner also noted that “the test for dishonesty and negligence are mutually destructive”. EOH took the matter on review, which this court dismissed.

[39] In upholding the appeal, the LAC accepted that the evidence established that the employee was at least negligent. It failed to see how his evidence would have been any different, including submissions in mitigation and aggravation had he been charged with negligence."

[40] In my view, the charge of being an accomplice to the misconduct is a competent verdict in that it is lesser than or akin to the main allegation of misconduct. In casu, the employee was not prejudiced by being an alleged accomplice."

charges: Being accomplice to the misconduct.

JR2519/21

Hollywood Sportsbrook Gauteng v Commission for Conciliation Mediation and Arbitration and Others (JR2519/21) [2024] ZALCJHB 146 (7 April 2024)

"[41] Burchell describes an accomplice as:

“…one who takes part in the commission of the crime, but not as a perpetrator or an accessory after the fact. Accomplice liability is distinct from that of the perpetrator, being based on the accomplice’s own unlawful conduct and fault (mens rea), but it is also liability which is accessory in nature in that there can be no question of accomplice liability without the existence of a perpetrator who commits the crime”.[21]"

"[42] Below is a summary of what he outlines as the elements for being an accomplice:[22]

43.1. Causal relationship: there must be a causal relationship between the accused’s conduct and the unlawful consequence. He states that: “It is arguable that both factual and legal causation are required for perpetrator liability, but only factual causation in the sense of ‘furthering’ or ‘assisting’ in the commission of the crime is necessary for accomplice liability”.

43.2. Omission: the mere failure to prevent the commission of a crime does not entail liability, and the passive spectator is not penalised. He notes that where inaction amounts to “participation” in the crime itself, or assistance, authorisation or encouragement of the perpetrator, he or she may be an accomplice.

43.3. Knowledge: An accomplice is liable for the part he or she plays in the perpetrator’s crime. It does not matter if the perpetrator does not know of the accomplice’s assistance.

43.4. Degree of accessoriness: Here, someone else must have committed the crime. In other words, a person cannot be an accomplice to his or her own crime.

43.5. Fault (mens rea): He notes that it would be sufficient if the accused foresaw the possibility that the principal offender’s crime was being or was about to be committed and, accepting this risk into the bargain, went ahead and furthered or assisted in the commission of that crime. This, with the proviso that the accused must have known that his or her conduct was unlawful."

a dismissal should not be an expression of moral outrage or an act of vengeance, but rather should be a sensible operational response to risk management in the enterprise

JR2118/2021

Penbro Kelnick (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR2118/2021) [2024] ZALCJHB 163; [2024] 7 BLLR 759 (LC) (10 April 2024)

[37] It has long been stated in De Beers Consolidated Mines Ltd v CCMA & others[9], that a dismissal should not be an expression of moral outrage or an act of vengeance, but rather should be a sensible operational response to risk management in the enterprise. Furthermore, inasmuch as Ramphabana was charged for dishonesty in that he lied to Helberg, it has also been said in De Beers that the seriousness of dishonesty, and whether it can be classified as gross or not, depends not only or even mainly on the act of dishonesty itself, but on the way in which it impacts on the employer's business. In other words, it does not imply that every act or misconduct involving dishonesty will lead to a dismissal. Worst still, a misconduct cannot be gross simply based on the subjective opinion or feelings of a manager. The gross nature of misconduct necessitating a dismissal can only be gleaned from the objective facts.

Dismissal – Covid-19 face mask – Found to be substantively unfair – Found not wearing face mask – Final written warning issued for transgression – Sought harsher punishment after written warning due to alleged untruthful explanation – Sanction of dismissal was expression of moral outrage and vengeance rather than sensible operational response to risk management – Decision to dismiss was not an appropriate response to operational risk – Findings reasonable – Application dismissed.

remorse

JR2552/21

DSV South Africa (Pty) Ltd v Koekemoer N.O. and Others (JR2552/21) [2024] ZALCJHB 173 (26 April 2024)

reviated from prescribed route

22] An employee who fails to acknowledge his wrong, show no remorse and is unapologetic about his misconduct and in fact defend his misconduct is clearly not prepared to be rehabilitated. Contrary to other judgments where employees showed no remorse and pleaded not guilty,[9] the employees in casu, at the first opportunity presented to them during the investigation of the allegation, were truthful about their conduct and acknowledged that they made a mistake. At the second opportunity during the disciplinary hearing, they owned up to their misconduct and once again apologised. At the third opportunity during arbitration proceedings, they continued to show that they were remorseful and again apologised. They were very consistent.

[24] Regardless, the commissioner took into account primarily the employees’ remorseful conduct, their length of service which was only two weeks, and the purpose of the Code of Good Practice and found that dismissal was not an appropriate sanction. The onus remained on the company to show that the sanction of dismissal was appropriate. The company was well aware that the employees had been remorseful from the first day. There was no evidence to suggest that the employees’ remorse or apology was not genuine and that the trust relationship had irretrievably broken down. Where the employees pleaded guilty to the charge, showed remorse and apologised, the employer must do more than allege, as the company did in this case, that the trust relationship has broken down. It must lead for the reasons set out above, the second and third grounds stand to be rejected.

a waiver of his right to be heard

JR1655/22

NUMSA obo Ramothibe and Others v Commission for Conciliation Mediation and Arbitration and Others (JR1655/22) [2024] ZALCJHB 300 (5 May 2024)

"[30] In Modise and Others v Steve’s Spar Blackheath[[2000] ZALAC 1; [2000] 5 BLLR 496 (LAC) at para 53.] Zondo AJP as he then was, analysed the whole ambit of case law relating to the right of striking employees to a pre-dismissal hearing. The LAC held:

‘The only situation which I am able to envisage where it can be said that an employer’s failure to give a hearing may be justified on the basis that a hearing would have been pointless or utterly useless is where either the workers have expressly rejected an invitation to be heard or where it can, objectively, be said that by their conduct they have said to the employer: We are not interested in making representations on why we should not be dismissed. The latter is not a conclusion that a court should arrive at lightly unless it is very clear that that is, indeed, the case. However, in my view, the latter scenario falls within the ambit of a waiver. Accordingly, the normal requirements of a waiver must be present.’"

[31] It is clear from the judgment in Old Mutual that a waiver as claimed by the respondent must be unequivocal. However, If the employee intentionally frustrates the hearing, his actions can be held to constitute a waiver of his right to be heard. I understand the respondent’s argument to be that the applicants, by refusing to leave the room, intentionally frustrated the hearing and that this constituted a waiver of their right to be present at the hearing.

"[32] In Foschini the employees and their representative left the disciplinary hearing when their objection to the initiator was dismissed. Revelas AJA, with Davis and Jappie JJA concurring, held that:

‘[58] On the evidence accepted by the arbitrator, the respondents’ refusal to attend the disciplinary hearing was unreasonable. Assuming the objection to a material witness, being the enquiry initiator, to be a valid one, the respondents should nonetheless have participated in the hearing and placed their objections on record. It is a trite principle in our law that a party, who chooses not to attend a hearing, does so at his or her own peril, and is precluded from later complaining about the outcome of the hearing.’"

[33] The principle that a party who chooses not to attend a disciplinary hearing does so at his own peril, is indeed trite. But the third respondent’s reliance on Foschini is misplaced for the simple fact that the applicants did not fail to attend - they refused to leave. It seems in such circumstances that the third respondent’s argument is akin to the so-called ‘crisis zone’ cases, but refusing to leave a disciplinary hearing is far removed from the levels of violence and disruption associated with a ‘crisis zone’ case. I can find nothing in the opposing affidavit or the record to support a finding that the disciplinary hearing of 17 March 2020 descended into a so-called ‘crisis zone’ and the third respondent did not purport to make out such a case. There was no violence at the hearing, only heated exchanges in response to the employer’s representative asking the chairperson to have the applicants removed from the room.

[40]... The unfairness of the procedure stemmed from the failure by the chairperson to explore alternative ways to ensure that the applicants were afforded their right to be present at the hearing and to state their case.

appropriate sanction

PA05/23

Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Others (PA05/23) [2024] ZALAC 42 (10 September 2024)

notorvehicle accident skipping a red light

"[9] The Labour Court went on to find that in terms of the appellant’s disciplinary code and procedure, the decision-maker had to exercise a discretion in the determination of a suitable sanction. The appellant’s disciplinary code recognises degrees of recklessness and negligence, dependent on prevailing conditions, the nature of the misconduct and actual and potential consequences. The guidelines on penalty range from a final written warning to unpaid suspension and dismissal. the Labour Court found that there was no evidence as to the suitability of the sanction of dismissal –

‘That evidence would have shown that why dismissal, which is harsher than other punitive measures for misconduct, was preferred over others. This evidence would have enabled the commissioner to make his own assessment that the dismissal was not imposed capriciously. Without evidence as to the suitability of the sanction of dismissal, there was no basis on which the commissioner could have come to the conclusion that the dismissal was substantively fair. The commissioner was not in a position to speculate on what evidence might have been placed before him showing that dismissal was warranted in the circumstance.’"

[13]...To the extent that Mr Higgs submitted that the arbitrator had misdirected himself because the appellant had led no evidence at the arbitration hearing regarding the seriousness of the accident, or whether it constituted a major or minor incident, the fact that these factors receive specific mention in the code, does not require evidence to be led in a mechanistic fashion, in some isolated sense, regarding each of these factors – they are better considered in the context of the evidence as a whole...In the course of his consideration of an appropriate sanction, he clearly had regard to the seriousness of the employee’s misconduct, the actual and potential consequences and importantly, the employee’s mendacious denial of any misconduct. As this Court has previously stated, the acknowledgement of wrongdoing is the first step towards rehabilitation.[1] In the present instance, the employee refused to take even that first step. In short: the arbitrator’s assessment of the evidence regarding the appropriateness of dismissal as a sanction cannot be faulted.

[14]...More often than not, the evidence of the nature and extent of the employee’s misconduct will be sufficient for an arbitrator to exercise the required value judgment on the fairness of dismissal as a sanction. The Labour Court’s finding that absent any evidence as to the suitability of dismissal as a sanction for the employee’s misconduct, her dismissal was axiomatically unfair, constitutes a misconception of the applicable legal principles. The arbitrator did precisely what he was required to do – he made a moral or value judgment based on the totality of the evidence before him. It is difficult in these circumstances to appreciate how it can be said, as the Labour Court found, that he committed any gross irregularity.

[17] In sum: contrary to what the Labour Court held, there is no obligation in law on an employer to adduce evidence on the appropriateness or suitability of dismissal as a sanction for misconduct, as a necessary condition for any finding of unfair dismissal. An arbitrator making a decision on the appropriateness of dismissal as a sanction for misconduct must make a value judgment, taking into account all relevant facts and circumstances. A breakdown in trust or deterioration in the employment relationship may be inferred from the evidence regarding these facts and circumstances. Finally, there is nothing in the record to indicate that the arbitrator’s decision to uphold the employee’s dismissal is a decision to which a reasonable decision-maker could not come. That being so, it was not open to the Labour Court to interfere with the award. The appeal thus stands to be upheld.

disciplinary hearing commenced when the charge sheet was served on the employee

JA88/2024

Tshabalala v Moqhaka Local Municipality and Another (JA88/2024) [2024] ZALAC 60 (21 November 2024)

[10] A contrary view, on which the Labour Court relied, was expressed by the Labour Court in Goba v Rand West City Local Municipality [J1069/21 [2021] ZALCJHB 301, 20 September 2021, following Ntsimane v Tshwane Municipal Council and another (J 761/21,10 May 2021).] where the Court held that a disciplinary hearing commenced when the charge sheet was served on the employee. The reasoning of the Court in that matter, that the grammatical meaning of the word ‘commence’ means to begin or start (in a legal context, by the issuing of a statement of claim or summons or notice of motion), overlooks the fact that the object of the verb ‘commence’, as regulation 10 (3)(a) indicates, is ‘the disciplinary hearing’, and not the disciplinary proceedings. The error in Goba, and perpetrated by the Labour Court in the present instance, is demonstrated in the Labour Court’s conclusion that ‘(a)s stated in the Goba matter, it will be incongruent to suggest that the proceedings commence only when the matter sits for trial’ (own emphasis). Regulation 6 makes no reference to the commencement of ‘proceedings’ - what is at issue is the commencement of the disciplinary hearing.

The failure to inform and consult the trade union

JR194/20

Ferroland Ground Trust (Pty) Ltd v Commission For Conciliation Mediation And Arbitration (JR194/20) [2024] ZALCJHB 273 (25 July 2024)

[38] The failure to inform and consult the trade union, in my view, was not fatal to the point of rendering Lehong’s dismissal procedurally unfair.

[39] As per the abovementioned authorities, non-compliance with item 4(2) of the Code is not fatal by itself since the Code is a guideline and does not confer legal rights.

[40] The Labour Court and the LAC have found that a dismissal of a shop steward was not procedurally unfair despite the fact that the provisions of Item 4(2) of the Code were not followed.[9]"

employee intentionally frustrates the hearing

JR1655/22

NUMSA obo Ramothibe and Others v Commission for Conciliation Mediation and Arbitration and Others (JR1655/22) [2024] ZALCJHB 300; [2024] 10 BLLR 1069 (LC) (5 August 2024)

31] It is clear from the judgment in Old Mutual that a waiver as claimed by the respondent must be unequivocal. However, If the employee intentionally frustrates the hearing, his actions can be held to constitute a waiver of his right to be heard. I understand the respondent’s argument to be that the applicants, by refusing to leave the room, intentionally frustrated the hearing and that this constituted a waiver of their right to be present at the hearing.

[36] To my mind the enquiry was not whether the applicants could hear the proceedings from outside under ideal circumstances, but whether it was reasonable for the chairperson to insist on the individual applicants leaving the room in the first place; and when they refused to do so to then proceed in their absence while also excluding the union representative.

provision for an employer to place an employee on forced special leave

J 828/2024

Sibanyoni v Speaker of the City of Mbombela and Others (J 828/2024) [2024] ZALCJHB 309; (2024) 45 ILJ 2808 (LC) (19 August 2024)

"25] The same conclusion was arrived at in South African Municipal Workers Union obo Matola v Mbombela Local Municipality[13], where it was held that what the respondent labelled “special leave” resolution was nothing but the suspension of the applicant in that case[14].

[26] Arising from the above authorities and further conclusions reached in Selepe and Another v Mohokare Local Municipality and Others[15], it is apparent that the Disciplinary Regulations for Senior Managers under the Systems Act does not make provision for an employer to place an employee on forced special leave. Special leave imposed by an employer is essentially euphemism for a precautionary suspension, to create an impression that the provisions of regulation 5 of the disciplinary code and procedure were complied with. It is irrelevant whether special leave is imposed for a prolonged or short period. It remains a suspension regardless. Thus, even if the provisions of regulation 5 are complied with, these can only be in respect of laying the ground work for the purposes of imposing a precautionary suspension under regulation 6, which is clearly not the issue in this case."

sanction: Sufficient evidence that employee was guilty of misconduct and not gross misconduct – Written warning would have sufficed

JR1520/23

Wiggil Farming (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR1520/23) [2024] ZALCJHB 324 (21 August 2024)

Gross misconduct – Using cellphone while driving tractor – Employer relying on road traffic rule – Incorrectly found that employee was not guilty of misconduct where he pleaded guilty to misconduct – Sufficient evidence that employee was guilty of misconduct and not gross misconduct – Written warning would have sufficed – Dismissal was extraordinarily harsh – Substantively unfair – Applicant ordered to reinstate employee.

[1] Gross misconduct is misconduct of an extremely serious nature. It is wilful in its intent and deliberate in its effect. It is conduct for which there is no justification. It can never, and should never be condoned, rationalised or accommodated. It is detestable in its construct and inexcusable in every conceivable context. It holds at its core the repugnant and abhorrent violation of workplace rules and standards, with much impunity and disdain. It demands an equal and disabling retort, achieved only by the imposition of a counter balancing act, such as the summary termination of employment.

" In addition, the commissioner somehow conflated the existence of the rule with the requirements of Section 1(a) of Regulation 308A of the Act[1], which states that:

“No person shall drive a vehicle on a public road, while holding a cellular or mobile telephone or any other communication device in one or both hands or with any part of their body.”"

"[20]...The employer’s labelling of misconduct as “gross” does not in and of itself make it so. It is the nature and extent of the misconduct that renders it gross, not the employer’s labelling thereof.

objections to procedure does not lead to dismissal of case

JR1836/22

City of Tshwane Metropolitan Municipality and Another v Matlala and Another (JR1836/22) [2024] ZALCJHB 374 (18 September 2024)

"[26] The three points are clearly dilatory in nature, and without more they should not result in a dismissal of the charges. Rather, they should only result in a postponement of the enquiry to secure a suitable prosecutor or chairperson, or to remedy any prejudice caused by a late preparation of the charges.

[27] In the circumstances, the dismissal of the charges was unnecessary, and it has exposed the employer to the prejudice of an opportunistic double-jeopardy defence if the charges are brought again.[3]

[28] Furthermore, by dismissing the charges the second respondent seems to have converted a procedural objection against his and the prosecutor’s appointments into a substantive defence against the charges."

[35] In other words, the Disciplinary Procedure allows for the use of external prosecutors and chairpersons when no suitably qualified employee can be appointed. But, the clauses do not contemplate the use of external parties when a suitably qualified prosecutor or chairperson is available, albeit outside of the preferred seniority band.

38] Any other interpretation would lead to absurdities and stands to cause the disciplinary process to become hamstrung, as has happened in this case. This interpretation also accords with the notion that collective agreements should be interpreted to facilitate an effective, fair and speedy resolution of labour disputes, rather than to introduce overly technical and mechanical obstructions to the quick and fair resolution of charges.

Procedural irregularities so material it renders the dismissal substantively unfair

JR912/20

National Union of Food Beverage Spirits Wine and Allied Workers and Others v Mbatsana NO and Others (JR912/20) [2024] ZALCJHB 410 (25 September 2024)

team misconduct: either directly or indirectly in an act of soliciting and/or extortion (i.e. corruption)

JR857/21

South African Municipal Workers Union obo Moabi and Others v South African Local Government Bargaining Council and Others (JR857/21) [2024] ZALCJHB 397 (30 September 2024)

[31] Finally, the Commissioner referred to the case of True Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v Commission for Conciliation, Mediation and Arbitration and others[ [2015] 2 BLLR 194 (LC); [2014] ZALCD 2.] (True Blue Foods) to justify her finding against all three officers as a collective, stating that “there is no need to prove individual culpability in a case of team misconduct”.

disciplinary requirements: fiduciary duties

JR1086/21

Department of Sports, Arts and Culture and Recreation v General Public Service Sector Bargaining Council and Others (JR1086/21) [2024] ZALCJHB 398 (30 September 2024)

"[25] In dealing with the allegation of the breach of fiduciary duty, the Arbitrator considered the Oxford Dictionary of the breach of fiduciary duty. In her research, she found that the breach of fiduciary duty takes place when a person behaves in a manner that contradicts their duty.

[26] She goes on to state that “in my view, it is when a person failed to act in good faith. The question to be answered is how did the Applicant act in bad faith?”[13]"

[39] For fiduciary duties to arise, there must, within the particular relationship concerned, be specific contractual obligations, which the employee has undertaken which have placed him in a situation where equity imposes these rigorous duties in addition to the contractual obligations.[17]

[40] In Helmut Integrated Systems v Tunnard[(2006) EWCSA Civ 1735 Para 37] the Court of Appeal stated that it is now commonplace to observe that not every employee owes obligations as a fiduciary to his employer.

"[41] My brother, Moshoana J has held in RFS Administrators (Pty) Ltd v Sean Lindo Samons and Others[Labour Court Case Number JS64/17 at Para 34] that:

“The prevailing view therefore is that all employees do not necessarily or automatically owe fiduciary duties to the employers. Circumstances may arise in the context of an employment relationship, or arising out of it, which, when they occur, will place the employee in the position of a fiduciary. Whether an employee has placed himself or herself in a position where he must act in the interest of his employer will depend on the terms of employment and the nature and purpose of the employee’s functions, duties, and responsibilities.”"

urgent court application for denying legal representation

2024/127351

Passenger Rail Agency of South Africa (Pty) Ltd v Mathobela and Others (2024/127351) [2024] ZALCJHB 446 (13 November 2024)

[16] PRASA made a blunt statement in its founding affidavit that it cannot run the arbitration “without the assistance of external legal representation”. Well, it must, and it will, or else, it risks a default award being taken against it, because it has not shown any exceptional circumstances to warrant the Court’s intervention in the uncompleted arbitration proceedings. The test is not whether the applicant, in this case, PRASA, is of the opinion that it cannot deal with the matter internally and therefore desires or prefers to be represented by an external legal representative. The opinion of the litigant is immaterial and of no relevance.

19] Lastly, PRASA contends that the pending review application against the legal representation ruling will be rendered academic if the arbitration continues. This is a fundamentally flawed argument. PRASA has no right to legal representation in its dispute with the employee. It has not demonstrated in these proceedings prima facie that it has reasonable prospects of successfully setting aside the legal representation ruling.

reasonable consistency

JR2643/21

Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Another (JR2643/21) [2024] ZALCJHB 491 (5 December 2024)

"22. It is necessary to first set out the applicable legal principles, as explained through the authorities. The overarching principle is captured in National Union of Metalworkers of SA & others v Henred Fruehauf Trailers (Pty) Ltd[(1994) 15 ILJ 1257 (A) at 1264A – D; Cape Town City Council v Mashitho (2000) 21 ILJ 1957 (LAC) at paras 11 and 12 ] where the court stated:

""Equity requires that the courts should have regard to the so-called 'parity principle'. This has been described as the basic tenet of fairness which requires that like cases should be treated alike (see Brassey 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 229-30). So it has been held by the English Court of Appeal that the word 'equity' as used in the United Kingdom statute dealing with the fairness of dismissals, 'comprehends the concept that the employees who behave in much the same way should have meted out to them much the same punishment' (Post Office v Fennell (1981) IRLR 221 at 223). The parity principle has been applied in numerous judgments in the Industrial Court and the LAC in which it has been held for example that an unjustified selective dismissal constitutes an unfair labour practice."" (own emphasis)"

"23. In SA Commercial Catering and Allied Workers Union and others v Irvin and Johnson Ltd[ (1999) 20 ILJ 2302 (LAC) at para 29.] the court clarified that “Discipline should not be capricious. It is really the perception of bias inherent in selective discipline that makes it unfair. Where, however one is faced with a large number of offending employees, the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness to the other employees. It would mean no more than his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy” (own emphasis)

"24. Objective differences in circumstances is a critical consideration. In Southern Sun Hotel Interests (Pty) Ltd v CCMA and others[(2010) 31 ILJ 452 (LC) at para 10.] it was held:

‘… An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors …’"

27. The applicable legal principles may be summarized as follows: (1) in general employees must be measured against the same standards, (2) the court must consider whether the chairperson (of the disciplinary enquiry) conscientiously and honestly determined the sanction; (3) the decision by the employer not to dismiss other employees for the same or similar misconduct must not be arbitrary, capricious or induced by improper motives; (4) inconsistency is not dispositive of the issue of an appropriate sanction and all relevant factors must be considered, (5) a value judgment must be exercised. The onus lies with the employer to prove that there was no inconsistent application of discipline.[SA Police Service v Safety & Security Sectoral Bargaining Council & others (2011) 32 ILJ 715 (LC) at para 10]

32. Inconsistency remains a key tenet of fairness. Although it is the commissioner's sense of fairness that must prevail and not that of the employer[45] the inconsistent application of discipline is an indication of the kind of misconduct that the employer is prepared to tolerate. When deciding whether dismissal is a fair sanction, the commissioner must consider the totality of circumstances. The commissioner must consider the importance of the rule that had been breached, the reason the employer imposed the sanction of dismissal, the basis of the employee's challenge to the dismissal, the harm caused by the misconduct, whether additional training and instruction may result in the employee not repeating the misconduct, and the effect of dismissal on the employee and his or her long-service record.[46] Here, no harm was caused by the misconduct, and the reasons why the employer imposed the ultimate sanction of dismissal was not adequately explained, given its inconsistent application of discipline.

Warning sanction

JR2023/22

Samson v Commission for Conciliation, Mediation and Arbitration and Others (JR2023/22) [2025] ZALCJHB 13 (14 January 2025)

4.14 It was common cause that the applicant was not given a hearing before the warning was issued to her. Instead, Kallis testified that she had several prior conversations with the applicant regarding her alleged non-performance.[10]

charge may have been inelegantly phrased

JR1714/2023

Mopedi v Dlamini NO and Others (JR1714/2023) [2025] ZALCJHB 32 (16 January 2025)

"[26] The applicant testified that she did not understand the charges levelled against her and as such, she was unable to formulate a defence regarding the cash stokvel and the fines system charges. However, the Commissioner rejected her evidence stating that the applicant was not a credible witness. The LAC in South African Society of Bank Officials (SASBO) and Another v The Standard Bank Of South Africa and Others[[2022] ZALAC 100; (2022) 43 ILJ 1794 (LAC) at para 25.] held that:

‘The trier of fact is expected, in the context of discipline in the workplace, to deal with the wrong committed by an employee even if the charge may have been inelegantly phrased provided that the employee is not significantly prejudiced by the incorrect labelling of the charge.’"

inordinate delay in bringing the employees to the disciplinary hearing

JR975/21

Castle and Another v Safety and Security Sector Bargaining Council (SSSBC) and Others (JR975/21) [2025] ZALCJHB 48 (12 February 2025)

[43] I have considered the judgments referred to by Mr Groenewald, counsel for the employees, in his heads of argument and during oral arguments.[4] These judgments emphasise the principle of fairness and ultimately state that whether or not the delay constitutes unfairness is a question of fact. To constitute unfairness, the delay must be inordinate and the explanation unreasonable. Further, the delay must have caused material prejudice to the other party, in this case, the employees, and the nature of the misconduct must be considered.

Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and others (2019) 40 ILJ 773 (CC); [2019] 6 BLLR 524 (CC); Mapyane v SA Police Service and others [2023] ZALCJHB 344; (2024) 45 ILJ 564 (LC).

test regarding dela: [9] It is of significance to state that the incidents with which the Applicant is charged took place during the year 2012, and she was only charged with misconduct two years later. The question is, therefore, why did it take so long for the Third Respondent to charge the Applicant of the misconduct?

JR1837/20

Sepheka v Gumede NO and Others (JR1837/20) [2025] ZALCJHB 133 (18 March 2025)

"[10] In the reportable Labour Court judgment of Moroenyane v Station Commander of the South African Police Services – Vanderbijlpark[3], the Labour Court laid down the following test regarding delay:

‘[38] In deciding whether a delay could possibly serve to render the institution or continuation of disciplinary proceedings unreasonable and unfair, guidance in be found in referring to the issue of a stay in criminal proceedings due to an undue delay in such proceedings. In Bothma v Els and Others[4] the Court considered the question of a permanent stay of a private prosecution due to a delay in the bringing of the prosecution. Sachs J said:[5]

“…. the delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial if it were to commence.”

In then considering whether a delay would taint overall substantive fairness, Sachs J referred with approval to the following dictum from the judgment in Sanderson v Attorney-General, Eastern Cape[6]:

“…. The critical question is how we determine whether a particular lapse of time is reasonable. The seminal answer in Barker v Wingo is that there is a ‘balancing test’ in which the conduct of both the prosecution and the accused are weighed and the following considerations examined: the length of the delay; the reason the government assigns to justify the delay; the accused’s assertion of his right to a speedy trial; and prejudice to the accused.”

Sachs J then added the following:[7]

“A word of caution: these four factors should not be dealt with as though they constitute a definitive check list. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. ....”

The learned judge finally concluded:[8]

“To the list …. must be added a further factor, one not considered by the High Court. I refer to the nature of the offence. .… Without placing the specific nature of the offence in the scales, the balancing exercise is itself unbalanced.”

[39] If one applies these considerations in Sanderson to delayed disciplinary proceedings, what has to be considered, in deciding whether the delay is unreasonable to the extent of bringing about the final termination of the proceedings, is the length of the delay, the explanation justifying the delay being inexcusable or not, the assertion of a right to a speedy hearing by the employee, the issue of prejudice, and finally the nature of the alleged offence. This approach was indeed adopted by the SCA in Cassimjee v Minister of Finance[9] where the Court said:

“There are no hard-and-fast rules as to the manner in which the discretion to dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognized. First, there should be a delay in the prosecution of the action; second, the delay must be inexcusable; and, third, the defendant must be seriously prejudiced thereby. Ultimately, the enquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefor and the prejudice, if any, caused to the defendant. There may be instances in which the delay is relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight. The court should also have regard to the reasons, if any, for the defendant’s inactivity and failure to avail itself of remedies which it might reasonably have been expected to use in order to bring the action expeditiously to trial.”

[40] In the employment law context, the approach in dealing with whether disciplinary proceedings should be ended on the basis of a delay is firmly founded in considerations of fairness. The former Industrial Court dealt with a delay in the conduct of a disciplinary hearing in the judgment of Union of Pretoria Municipal Workers and Another v Stadsraad van Pretoria[10] and said:

“Fairness, however, dictates that disciplinary steps must be taken promptly. Both the staff regulations and the recognition agreement echo the need for prompt action as all time-limits must be adhered to strictly and time-limits are provided for in paras 5.2.5 and 5.3.1. In Mahlangu v CIM Deltak (1986) 7 ILJ 346 (IC) one of the guide-lines for a fair hearing was a right to have the hearing take place ‘timeously’. In Brassey & others The New Labour Law it is said that the enquiry must be held promptly. Article 10 of ILO Recommendation 166 suggests that:

‘The employer should be deemed to have waived his right to terminate the employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct.’”

[41] The current Labour Court followed suit, in the judgments of Department of Public Works, Roads and Transport v Motsoso and Others[11] and Rope Constructions Co (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[12] where the Labour Court referred with approval to the judgment in Stadsraad van Pretoria. I cannot find any fault with such an approach, in principle, provided that it is always subject to the kind of considerations as set out in the judgments of Sanderson and Cassimjee.

[42] In summary, I do not believe that what may be considered to be a lengthy delay in the institution, and then conclusion, of disciplinary proceedings, can per se lead to a conclusion of unreasonableness and unfairness. A disciplinary hearing cannot be directed to be aborted just because there is a long delay. More is needed. What must always be considered, in deciding whether to finish off disciplinary proceedings because of an undue delay, is the following:

42.1 The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

42.2 The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

42.3 It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.

42.4 Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

42.5 The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.

42.6 All the above considerations must be applied, not individually, but holistically.

[43] In addition to what I have dealt with above, there may well be, depending on circumstances, another basis where an undue delay can serve to scupper the institution or continuation of disciplinary proceedings. This is founded, as said in Stadsraad van Pretoria, on the principle of waiver. This kind of case would be an assertion that because of the delay, it has to be inferred that that employer has waived its right to take disciplinary action against the employee. To succeed with such a case, the employee would have the duty to satisfy all the legal requirements relating to waiver. In National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others[13] the Court held:

‘…. Waiver is the legal act of abandoning a right on which one is otherwise entitled to rely. It is not easily inferred or established. The onus to prove it lies with the party asserting waiver. That party is required to establish that the right-holder, with full knowledge of the right, decided to abandon it.

So waiver depends on the intention of the right-holder. That can be proved either through express actions or by conduct plainly inconsistent with an intention to enforce the right. ….’

[44] Waiver has a further nuance. In Greathead v SA Commercial Catering and Allied Workers Union[14] the Court said that: ‘….The appellant could not have considered abandoning his rights if he (and his legal advisers) had not appreciated it’. This same approach was followed by the Labour Court in EHCWAWU Obo Tshabalala and Others v M & P Bodies CC[15] where it was held that: ‘It is also trite that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waiving her right….’. Finally in this respect, it cannot just be assumed there was a possible waiver, considering the following dictum in Ullman Bros Ltd v Kroonstad Produce Co.[16] ‘…A waiver is not presumed, but must be clearly established by the party who relies on it. .…’. As to what constitutes ‘clear establishment’, the Court in Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd[17] referred with approval to the following extract from the judgment of De Villiers CJ, in Smith v Momberg (12 SC 295):

‘Under certain circumstances a renunciation of rights may be implied from the conduct of the person entitled to them, but his conduct must be such as to leave no reasonable doubt in the mind that he not only knew what his rights were, but intended to surrender them.’"

14] In consideration of the above mentioned applicable legal principles and based on what I have discussed, supra and more importantly, the evidence assessment in paragraph 6 above, this Court finds that the Third Respondent has failed to discharge its onus on the balance of probabilities and further to the above, this Court finds the delay by the Third Respondent in instituting the disciplinary hearing proceedings against the Applicant to be unreasonable, worsened by the fact that the Third Respondent did not provide any explanation for such delay whatsoever.

convening of a second disciplinary hearing

J128/2023

United National Transport Union v Transnet (SOC) Limited (Durban Engineering Division) (J128/2023) [2025] ZALCJHB 124 (24 March 2025)

"21] Assuming for present purposes that the process of an internal review may be construed as being equivalent to the convening of a second disciplinary hearing, as was asserted by the applicants, the third respondent was required to consider whether and under what circumstances a second disciplinary hearing may permissible be convened. The Labour Appeal Court established the applicable standard in BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC),

‘Whether or not a second disciplinary enquiry may be opened against an employee would, I consider, depend upon whether it is, in all the circumstances, fair to do so. I agree with the dicta in Amalgamated Engineering Union of SA and Others v Carlton Paper of SA (Pty) Ltd (1988) 9 ILJ 588 (IC) at 596 A-D that it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick. … I should make two cautionary remarks. It may be that the second disciplinary enquiry is ultra vires the employer’s disciplinary code. … That might be a stumbling block. Secondly, it would probably not be considered to be fair to hold more than one disciplinary enquiry save in exceptional circumstances.’[4]"

appropriateness of dismissal as a sanction for misconduct

JR 2285/21

Association of Mineworkers and Construction Union (AMCU) obo Mafokane v Commission for Conciliation, Mediation and Arbitration and Others (JR 2285/21) [2025] ZALCJHB 149 (5 April 2025)

"[27] Recently in Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Others[(PA05/23) [2024] ZALAC 42; [2024] 12 BLLR 1224 (LAC); (2025) 46 ILJ 89 (LAC).], it was held that the nature of the misconduct and the actual or potential consequences are relevant factors in the determination of an appropriate penalty[7]. It was added that;

‘In sum: contrary to what the Labour Court held, there is no obligation in law on an employer to adduce evidence on the appropriateness or suitability of dismissal as a sanction for misconduct, as a necessary condition for any finding of unfair dismissal. An arbitrator making a decision on the appropriateness of dismissal as a sanction for misconduct must make a value judgment, taking into account all relevant facts and circumstances. A breakdown in trust or deterioration in the employment relationship may be inferred from the evidence regarding these facts and circumstances…’[8]"

employer acted fairly in deciding to dismiss an employee, a variety of factors

JR15/24

Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025)

"[34] In deciding whether the employer acted fairly in deciding to dismiss an employee, a variety of factors must be considered, as a whole.[23] These are, in sum, the following: (1) the importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (4) the harm caused by the employee's conduct; (5) whether additional training and instruction may result in the employee not repeating the misconduct; (6) the service record of the employee; (7) the breakdown of the trust / employment relationship between the employer and employee; (8) the existence or not of dishonesty; (9) the possibility of progressive discipline; (10) the existence or not of remorse; (11) the job function of the employee; and (12) the employer’s disciplinary code and procedure.[24] Not all the factors are always relevant to a particular case, so only those that are relevant must be identified, and considered.[25] In general terms, what requires consideration by an arbitrator was articulated in Vodacom (Pty) Ltd v Byrne NO and Others[(2012) 33 ILJ 2705 (LC) at para 9. See also Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I.] as follows:

‘… the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction …’"

[45] But the seriousness of misconduct is, as discussed above, not the only factor to be considered. Unfortunately, the third respondent had no regard to several of the other factors as well. In particular, the third respondent had no regard to any of the following: (1) the applicant had consistently been dismissing employees for similar misconduct in the past; (2) there was not an acceptable explanation by the first respondent for the misconduct; (3) there was a proper and justified reason for the applicant to have opted for dismissal; (4) this was not a case where additional training and instruction could result in the first respondent not repeating the misconduct; and (5) the particular job function of the first respondent and that she failed in one of her core duties. The failure to consider these factors would thus be another failure on the part of the third respondent that would impact on the reasonableness of the conclusion he arrived at.

prescription: outcome of a disciplinary hearing is not a debt

JR 2121/2022

Public Investment Corporation v More and Others (JR 2121/2022) [2025] ZALCJHB 159 (16 April 2025)

72] Considering the wording of section 17, it is clear that prescription cannot be raised at a disciplinary hearing because it does not involve litigation before a court and no document is filed of record. The LRA did not envisage the disciplinary process adopted by many employers and abused by some employees. On the contrary, and in its simplest terms, the LRA introduced a process that requires an investigation into any alleged misconduct, 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. It is a process far removed from civil proceedings. An employer and employee are just that — parties in an employment relationship and they are not and do not become parties in litigation when disciplinary proceedings are initiated.

[79] Let this be clear: the Prescription Act applies to civil litigation in a court of law — it is about the litigation of claims or debts in civil court proceedings. A disciplinary process is not civil litigation, a disciplinary hearing is not a court of law, and there is no litigation of a debt involved in a disciplinary hearing. All this indicates that the Prescription Act is not applicable to disciplinary hearings, and the commissioners committed a material error of law in finding that it applies to disciplinary hearings.

80] The question of waiver and delay may remain relevant in that an employer may have waived its right to rely on certain misconduct to institute disciplinary action, or the delay in doing so may render the dismissal procedurally unfair. But it does not mean that the employer cannot take disciplinary action because the disciplinary charges have prescribed.

"[85] Also relevant is the Constitutional Court’s judgment in Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others Off-Beat Holiday Club[27]:

‘In my view the correct characterisation of a claim for purposes of the Prescription Act is the characterisation arising from the relevant legal provisions on which the claim is based. Here the claim is based on s 252 of the Companies Act, the plain text of which discusses an entitlement to an equitable judicial determination. Thus, according to s 252, the applicants' claim is for declaratory relief, not an alteration of the terms of a contract or a money award. … My solution is that courts restrict themselves to the text of the legal provision on which the claim is based. In order to identify what the relevant claim is, the court should use the applicants' cause of action as guidance. However, the court is not beholden to the applicants' characterisation of the claim, which might be at variance with the relevant legal provision. The latter governs.’ (Own emphasis)"

[90] A disciplinary hearing is held within the ambit of the LRA, and it is not purely an investigation into the breach of contract within the ambit of a contractual dispensation. It is not the enforcement of a contractual right to terminate, but it is the enforcement of a statutory right to terminate an employment relationship on the grounds recognised by the LRA.

93] Put differently, while a debt in terms of the Act is an obligation to pay money, deliver goods or render services, a disciplinary enquiry does not require the employee to perform any obligation at all, let alone one to pay money, deliver goods or render services. The employer merely invokes a labour law mechanism available to it to investigate a prima facie case of alleged misconduct and its impact on a continued employment relationship.

procedure

JR 237/21

Sethibelo v General Public Service Sector Bargaining Council and Others (JR 237/21) [2025] ZALCJHB 250 (26 June 2025)

Critical evidence overlooked – Employer failed to formally revoke approved leave – Chairperson erroneously assumed that no leave had been granted – Significant procedural defects – Rendered dismissal procedurally unfair – Leave was a contractual right that could not be automatically revoked by suspension – Award reviewed and set aside only in respect of procedural fairness.

[53] In Old Mutual Life Assurance Co SA Ltd v Gumbi[13](Gumbi), it was held that an employee is entitled to a pre-dismissal hearing, and that the principle of audi alteram partem was central to employment relationships, with the aim of promoting justice and fairness at the workplace[14]. It was further added that the right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal; that should the employee fail to take the opportunity offered in a case where he or she ought to have, the employer’s decision to dismiss cannot be challenged on the basis of procedural unfairness[15]; and further that it was the duty of the employee to ask for a postponement of the hearing if he/she was unable to attend due to illness[16] or some other justifiable reason.

MARIUS SCHEEPERS LABOUR LAW ATTORNEY
LABOURATTORNEY

35 + years experience as Labour Attorneys

Disciplinary Hearing

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