Dismissal for misconduct: Fair procedure

- S 188 of LRA: to be fair, dismissal must inter alia be in accordance with a fair procedure
- Employees are entitled to fair pre-dismissal procedure irrespective of whether or not they are guilty
- Requirements of procedural fairness were developed by the courts from rules of natural justice
- These rules require employer to act in a semi-judicial way before imposing a disciplinary sanction against
employees
- Fair procedure requirements are intended to avoid arbitrary and spur-of-the-moment conduct against
employees
- However, it does not necessarily entail conducting disciplinary proceedings according to rigorous
standards of the courts
 Continued …
- Rules of natural justice simply require that domestic tribunals be conducted in accordance with common
sense standards of fairness

- The Code of Good Practice: Dismissal sets out requirements for fair dismissal procedure :
• Employer should investigate whether there are grounds for dismissal (formal
investigation not a necessity)
• Employer should notify employee of allegations using a form and language employee can
reasonably understand
• Employee should be allowed opportunity to respond to allegations
• Employee should be given reasonable time to prepare a response and assistance of a trade
union or fellow employee
• Employer should communicate the decision taken to employee, preferably in writing,
 Continue …
- Procedural fairness requirements under the current LRA are less stringent and formalised compared to
position under previous regimes.
- E.g. Code of Good Practice: Dismissal does not mention the right of internal appeal, or to cross-examine,
or to call witnesses. However, these are not necessarily prohibited
- Stricter procedural standards may be expected from larger employers with resources to conduct more
formal enquiries
- The courts and arbitrators are prepared to overlook minor departures from procedural requirements if the
dismissal is generally otherwise fair

Highveld District Council v CCMA (2003) 24 ILJ 517 (LAC)

The Labour Court held that the employer had departed from gazetted disciplinary
code by (i) failing to make an ‘accusation against an employee in writing before the
head of department concerned’; and (ii) the chairman of the appeal tribunal failed to
appoint a prosecutor. The LC ruled that the lapses were enough to render the dismissal
procedurally unfair. However, the LAC found that even though employers are bound by
their own disciplinary rules, the issue was whether the procedure actually followed was
fair.
 Continue …
- In Highveld District Council, Labour Court wrongly focused on the issue of compliance without taking the
next step, namely asking whether the non-compliance was unfair as opposed to unlawful
SA Tourism Board v CCMA [2003] 9 BLLR 916 (LC)
In this case Labour Court held that appointment of a presiding officer who did not have the
status required by the employer’s disciplinary code was not sufficient to render the dismissal procedurally
unfair

Greater Letaba Local Municipality v Mankgabe NO (2008) 29 ILJ 1167 (LC)

On review the court agreed with arbitrator’s decision that dismissal was procedurally unfair
but found that the arbitrator had erred in reinstating an employee based on that finding without
considering the gravity of employee’s offence. Court set aside reinstatement order and instead replaced
it with an order of minimal compensation for employer’s procedural lapse
Investigation
- Refers to inquiry leading to decision to charge the employee
- Its aim is to establish whether there is a prima facie case against the employee
- It normally entails interviewing of witnesses and accused employees themselves as well as gathering of
documentary or real evidence
- Suspected employees are not necessarily entitled to be heard or represented during the investigation
preceding the disciplinary hearings
- Where identifying culprits by conventional means proves difficult, employers have been permitted to use
methods such as:
• Entrapment – entails engagement of ‘agents’ to conclude ‘deals’ with employees
involving illicit transactions.
 Continue …

• Telephone tapping – have been allowed in appropriate circumstances. E. g. the use of

evidence of a tape-recorded conversation between employee and person from whom
employee received a bribe was allowed in Sugreen and Standard Bank of SA (2002) 23
ILJ 1319 (CCMA). However, employers must avoid infringing provisions of RICA
• Polygraph tests – Courts and arbitrators have generally deemed results of polygraph tests
to be inadmissible as evidence or rejected them as proof of an offense unless
corroborated by other evidence. Viewed by arbitrators as unreliable and no adverse
inference is drawn against employees for refusing to undergo them
• Pending criminal proceedings – disciplinary proceedings and criminal cases arising from
the same misconduct are generally heard separately. The two can be heard
simultaneously
Requirements of a fair hearing
- The most important of the rules of natural justice is enshrined in the maxim audi alteram
partem
- Literally means ‘hear the other side’
- In the employment context, it means employer may not take disciplinary action against
employees without giving them a fair hearing

1. Adequate notice
• employer is required to notify accused employees of allegations against them in the form
and language they can reasonably understand
• The ‘adequacy’ of notice is in connection with timing and content of notice. Accused
employees must be given sufficient time to prepare for hearings and must be notified of
the charges they are going to face
 Continued… (Requirements of a fair hearing)

2. Employee must be made aware of the charge(s)

• Employer should advise accused employee ahead of the hearing of exact charge/s brought against him/her
• Charge should be formulated in precise and simple terms
• Should spell out that consequences of a guilty finding could be dismissal
• While it is permissible to formulate charges in wide and non-technical terms, they must be sufficiently specific to
allow employees to respond
• Charges need not be in detail required for criminal proceedings

Mutual Construction Co Tvl v Ntombela NO (2010) 31 ILJ 901 (LAC)

CCMA commissioner found that dismissal of a clerk for fraudulently claiming pay for hours he did not
work was procedurally unfair because employer had failed to specify all the fraudulent entries in the charge sheet.
On review, court accepted that the
charge sheet did not detail each fraudulent entry, but pointed out that employers are
not required to draft charge sheets that meet the standards of criminal indictments.
 Continued… (Requirements
of a fair hearing)
3. Hearing must generally precede the decision
- Disciplinary hearings are aimed at ensuring that accused employees get opportunity to challenge
allegations made against them before adverse decision is taken
- Taking a decision first and holding a hearing later would clearly be unfair and a sham
- However, it may be possible to correct the error where employer dismisses employee without a hearing

Semenya SC v CCMA (2006) 27 ILJ 1627 (LAC)

Respondent employee was told by her employers that her contract was being terminated.
When she pointed out that she had not been afforded a hearing, the employers offered to arrange a
disciplinary hearing chaired by an independent outsider. Employee rejected the idea and was then
dismissed without a hearing.
LAC held - rule that a hearing must precede a dismissal is not absolute and that the offer of a
hearing after dismissal was enough to correct the earlier irregularity
 Continued… (Requirements of
a fair hearing)
4. Hearing must not be unreasonably delayed
- Hearing must be held asap after incident that led to disciplinary action to ensure that facts are still fresh
in minds of parties and witnesses
- Hearing should not be dragged on indefinitely once started

Department of Public Works, Roads & Transport v Motshoso [2005] 10 BLLR 957 (LC)

The judge ruled that a three-year delay in instituting disciplinary action against employee was
unconscionable and unfair

- A delay in holding disciplinary hearing may also be deemed to signal employer’s

decision to waive its right to dismiss based on charge alleged
- Where employee requires time to prepare for hearing or to arrange representation,
he/she must be given reasonable opportunity to do so.
 Continued…
(Requirements of a fair hearing)

5. Employee should be present at the hearing

• A disciplinary hearing held in absence of accused is, in most circumstances, deemed
unfair

• But employer is allowed to proceed with hearing in absence of employee if he/she refuses
to participate without good cause, or deserted, or is nowhere to be found

Old Mutual Life Assurance Co SA v Gumbi (2005) 26 ILJ 1039 (E)

Court held that employer had correctly proceeded in employee’s
absence where postponement was requested based on
unconvincing medical grounds was refused