How do procedural fairness requirements relating to dismissals based upon misconduct (as well as incapacity), contained in the 1995 LRA, differ from the environment that preceded this Act?
With what has the criminal justice module, that existed in terms of the 1956 LRA, been replaced with in the 1995 LRA?
What are some of the main considerations to comprehend the above changes and what are some of the recent observations made by the labour court when it tries to understand why practitioners persist with the 1956 LRA module relating to procedural fairness?
What are some of the main considerations to comprehend the above changes and what are some of the recent observations made by the labour court when it tries to
understand why practitioners persist with the 1956 LRA module relating to
procedural fairness?
_____________________________________
- In Strydom v Arcelormittal SA (2024) 35 SALLR 131 (LC), the labour court has bemoaned the approach adopted in disciplinary enquiries on several occasions and it continues to express concern regarding the manner in which disciplinary hearings are conducted. As far back as 1992, the labour appeal court held, in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC), that:
- ‘In Khanum v Mid-Glamorgan Area Health Authority 1978 IRLR 215 it was held that there are only three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary enquiry, viz:
- the person should know the nature of the accusation against him;
- he should be given an opportunity to state his case;
- the tribunal should act in good faith.’ (see Twala v ABC Shoe Store (1987) 8 ILJ 714 (IC), at 716D-F.)
- This court is satisfied that, in the present case, all three of those basic requirements were met in the proceedings, both before the disciplinary enquiry and on appeal. … Moreover, at disciplinary hearings presided over by laymen, it cannot be expected that all the finer niceties which a formal court of law would adopt will always be observed.’
- ‘In Khanum v Mid-Glamorgan Area Health Authority 1978 IRLR 215 it was held that there are only three basic requirements of natural justice which have to be complied with during the proceedings of a domestic disciplinary enquiry, viz:
- In the LRA the statutory requirements for fair procedure are clearly spelled out in the Code of Good Practice: Dismissal and those were elaborated on in Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC), where it was held that:
- ‘To some extent, chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in schedule 8 to the LRA.
- Item 4 of the code provides:
- Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”
- It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.
- This approach represents a significant and fundamental departure from what might be termed the 'criminal justice' model that was developed by the Industrial Court and applied under the unfair labour practice jurisdiction that evolved under the 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. Where a commissioner is obliged (as commissioners are) to arbitrate dismissal disputes on the basis of the evidence presented at the arbitration proceedings, procedural requirements in the form that they developed under the criminal justice model are applied ultimately only for the sake of procedure, since the record of a workplace disciplinary hearing presented to the commissioners at any subsequent arbitration is presented only for the purpose of establishing that the dismissal was procedurally fair. 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.
- The signal of a move to an informal approach to procedural fairness is clearly presaged by the explanatory memorandum that accompanied the draft Labour Relations Bill. The memorandum stated the following:
- ““The draft Bill requires a fair, but brief, pre-dismissal procedure. … [It] opts for this more flexible, less onerous, approach to procedural fairness for various reasons: small employers, of whom there are a very large number, are often not able to follow elaborate pre- dismissal procedures; and not all procedural defects result in substantial prejudice to the employee.”
- On this approach, there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex “charge-sheets”, requests for particulars, the application of the rules of evidence, legal arguments, and the like.’
- In Tshongweni v Ekurhuleni Metropolitan Municipality (2010) 31 ILJ 3027 (LC), the Court was faced with a matter where the employee was dismissed and, far from the brief pre-dismissal procedure envisaged by the LRA, the disciplinary enquiry was chaired by a member of the Johannesburg bar, and both the applicant and respondents were represented by practising lawyers. The transcript of the disciplinary hearing extended to some 2 240 pages, the bulk of it devoted to technical legal issues. The labour court considered the systemic delays in the resolution of labour disputes and explained that a simple, quick, cheap and non-legalistic approach to the adjudication of misconduct cases was envisaged to achieve the purposes of the LRA. The labour court remarked that the facts of the case illustrated just how elusive the objects of the LRA remain and how legalism continues to undermine the purpose of the Act:
- ‘[1] …But systemic delay in the labour dispute-resolution system is rooted more deeply than the managerial or administrative shortcomings of any particular institution. It also extends to the manner in which disciplinary enquiries are conducted by employers, and especially the phenomenon of enquiries chaired by practising lawyers at which both parties are legally represented.
- [2] The present case is an example of an individual dismissal dispute that from the outset was handled in a manner that entirely undermines the purpose of the Labour Relations Act (LRA). That purpose is recorded in the Explanatory Memorandum that accompanied the first draft of the current LRA. The memorandum dealt with what was referred to as the highly legalistic and expensive system of dispute resolution, and proposed the following solution:
- “In cases concerning the alleged misconduct of workers, the courts have generally required an employer to follow an elaborate pre-dismissal procedure and have thereafter conducted a fresh, full hearing on the merits of the case. Apart from its duplication and lengthiness, this approach has obvious cost implications for the parties and the State. The draft Bill requires a fair, but brief, pre-dismissal procedure, and quick arbitration on the merits of the case…”’
- In Stokwe v MEC: Department of Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC), 2019 (4) BCLR 506 (CC), [2019] 6 BLLR 524 (CC), the constitutional court confirmed that the requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. The constitutional court held that disciplinary proceedings must be completed in the shortest possible timeframe.
- In Department of Public Works and another v Vukela and Others (2022) 43 ILJ 2319 (LC), the labour court observed that there was a ‘yawning gap’ between the rights of employees in the public and private sectors and the injustice that is occasioned. The matter concerned an extended suspension of an employee, pending a disciplinary hearing, and the labour court remarked that, without attributing any blame to any particular party, the state of affairs demonstrated the regrettably dysfunctional state of workplace discipline and dispute resolution consequent on a system of regulation that encourages parties to avoid the merits in favour of technicalities. The labour court said that:
- ‘Ironically, the multiplicity of laws and the consequent complexity, inconsistency, duplication of resources and jurisdictional confusion are all problems that the LRA sought to address. Perhaps the time has come for there to be a formal enquiry into why workplace discipline and dispute- resolution procedures (especially in the public sector) remain out of step with legislative intent, and for the legislature to consider how the agreed goal of efficient, expeditious and inexpensive procedures might be better achieved.’
- The LRA did not envisage the disciplinary process adopted by many employers and abused by some employees. On the contrary, 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.
- Considering the number of cases challenging either the institution, continuation or outcome of internal disciplinary hearings, or processes related thereto, that end up in the labour court, it is evident that employers, trade unions and legal practitioners (and any other relevant role player) take little note of the
- provisions of the LRA and judgments of, and the concerns raised by, the labour court. Instead, they are still inclined to agree to retain the criminal justice model by way of contract of employment, employment policies and practices or collective agreements. Obviously, once agreed to, employers are bound to apply the standards to which they have agreed, or that they have established.
