Article 16/2023

Is an employer entitled to institute a second disciplinary enquiry relating to a new and different charge as compared to the original disciplinary enquiry?

Is an employer entitled to, after having informally handed down a sanction, to subject an employee toa formal enquiry?

After a first enquiry, is an employer entitled to ask the employee to make representations as to why the original sanction should not be altered?

Is an employer entitled to substitute a sanction where same is not permitted by such employer’s
disciplinary code?

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The labour court, in Moloantoa v CCMA (2021) 32 SALLR 46 (LC), in essence, identified the following
scenarios:

Scenario 1: the second enquiry relates to a new and different charge based on newly-discovered evidence

  • this scenario does not entail the changing of an original sanction and is permitted, subject to what is stated hereunder
  • BMW (SA) v Van der Walt (2002) ILJ 113 (LAC) established fairness as the only yardstick in the above regard

Scenario 2: after having informally implemented discipline, the employer conducts a formal disciplinary enquiry, leading to a different sanction

  • this action of the employer is permitted subject to what is stated hereunder
  • this scenario was specifically dealt with by the labour appeal court in Branford v Metrorail (2003)
    24 ILJ 2269 (LAC), where it was stated that fairness is the only yardstick – with reference to
    NUMSA v Vetsak 1996 (4) SA 577 (A), where it was held that both the interests of the employee
    and the employer must be considered to reach a balanced and equitable assessment

Scenario 3: after the first enquiry, the employee is required to make representations as to why the
sanction should not be altered

  • it appears that such approach will also be permitted and that the only yardstick is fairness
  • Branford is not authority that this scenario amounts to a second enquiry being held

Scenario 4: no substitution of a sanction permitted

  • In SARS v CCMA [2008] 6 BLLR 540 (LAC), it was held that substituting a sanction under these
    circumstances will lead to an invalid action on the part of the employer and does not amount to
    procedural unfairness
  • the viewpoint is held that such approach deprives the employer of the opportunity to justify its
    action and, in any case, is contrary to Steenkamp v Edcon [2016] 4 BLLR 335 (CC) and Branford

In Moloantoa, the labour court held that it was bound to follow SARS and made the finding that the
action of the employer attracted invalidity and not mere procedural unfairness.

It is also to be remembered that, if the substitution of a sanction is contrary to a collective agreement,
then s24 of the LRA is applicable.

Lastly, when exceptional circumstances are present, an employer may also approach the labour court
to alter the sanction (Executive Council Finance KwaZulu-Natal v Dorkin [2008] 6 BLLR 540 (LAC)).

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.