The Code of Good Practice: Dismissal (Schedule 8 of the LRA) does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for leading and cross-examination of witnesses, formal rules of evidence and legal representation (see, inter alia, Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 10 SALLR 118 (LC); (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC)).
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The CCMA recently, in FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA), as well as the labour court recently, in Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC), indicated, once again, the difference between the 1956 LRA and the 1995 LRA, as follows:
1956 LRA
- Under this Act, a criminal justice model was adopted, when the industrial court determined whether a dismissal constituted an unfair labour practice or not.
- Consequently, in this environment, a formal disciplinary enquiry approach was adopted at the workplace, entailing, inter alia, the following:
- the putting of a charge
- the pleading to such charge
- the leading of evidence-in-chief, cross-examination and re-examination
- the taking into account of aggravating and mitigating factors, etc
1995 LRA
- On the other hand, in the current unfair dismissal environment, elaborate procedural requirements at the workplace are inappropriate.
- The following are the only elements of the statutory fairness required pertaining to dealing with misconduct at the workplace:
- an investigation is to take place into the allegations
- the employee is to be afforded an opportunity to respond
- the employee has available the assistance of a representative
- the employer must make a decision as to the outcome of the investigation
- the employee is to be notified of such decision as well as notified of his/her right to refer the dispute for dispute resolution at an external body (i e CCMA, relevant bargaining council or procedure in terms of a collective agreement)
