Articles

Be careful what powers you accord a disciplinary hearing

Sunday Times 7 June 2009
By Felicia van Rooi & Nicole Chetty

An employee pleads guilty to committing fraud amounting to hundreds of thousands of rands. The chairperson of the disciplinary inquiry decides to impose a sanction of a final written warning. The employer is not happy with the sanction, believing that it cannot trust the employee anymore and that by retaining the employee, it might create a precedent among employees - that if they committed fraud, they would get away with a final written warning.

Can an employer in these circumstances overturn the sanction imposed by the chairperson of the disciplinary inquiry? Generally, in the employment law context, employers are bound by the sanction that is imposed by the chairperson of the disciplinary hearing.

A case of point is County Fair Foods (Pty) Ltd v CCMA (Commission for Conciliation, Mediation and Arbitration) and others. An employee was found guilty for assaulting another. The chairman of the disciplinary hearing imposed a sanction of a final written warning and unpaid suspension. County Fair was not happy with the sanction and decided to overturn it. It dismissed the employee.

The Labour Appeal Court had to decide whether employers can overturn the sanction of a disciplinary chairman should they not be satisfied with the sanction. The court stated that if an employer's disciplinary code makes provision for the decision of the chairman of a disciplinary inquiry to constitute a recommendation, then the sanction can be overturned. County Fair’s disciplinary code did not permit the employer to overturn the sanction imposed by the chairman of a disciplinary inquiry. The court found that the dismissal was procedurally unfair and awarded 10 months' compensation.

The labour courts seem to be more lenient towards employers in the public sector. They have found in several cases that because the state as an employer deals with public funds and taxpayers’ monies, it should have the flexibility to overturn and second guess sanctions imposed by chairman of a disciplinary inquiry. It has to be in the public interest to do so, however.

Employers in the private sector can only overturn the sanction imposed by the chairman of a disciplinary inquiry only if their disciplinary code provides that the sanction constitutes a recommendation. Even if the disciplinary code provides for this, employers must provide reasons as to why it was necessary to overturn the sanction to a more severe sanction, should the employee decide to approach our judicial system for relief.

Employers should therefore consider carefully the role and powers they want the chairmen of disciplinary hearings to have.

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