• When The Chairperson Gets It Wrong
  • December 18, 2012
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • After hearing all the evidence pertaining to a disciplinary offence, an appointed chairperson must make a finding whether an employee is guilty of the charges. Having considered all the circumstances, the chairperson must also make a decision on the appropriate sanction to be imposed for the offence committed. Employers often hold the view that the chairperson's decision regarding the sanction does not fit the offence committed because it is too lenient. South African courts have considered various circumstances determining whether employers are bound by decisions of chairpersons when disciplining employees.The courts have found that employers may re-institute disciplinary hearings, may review the decisions of a disciplinary tribunal or approach the Labour Court to review such decisions.

    Caution must be exercised in taking steps to overturn the decisions of a chairperson, because employers may re-institute disciplinary hearings, review the decisions of a tribunal or approach the courts for review. Fairness plays a significant role in the following sets of circumstances and the threshold at which employers may overturn a chairperson's decision remains uncertain. Case law has given us examples of what the courts consider fair in balancing the interests of the parties. However, unless an employee is found guilty of very serious charges, an employer may face difficulties in trying to overturn a chairperson's decision on the grounds that it is too lenient.

    In Branford v Metrorail Services (Durban) (Branford), 1an employee representing the employer issued a written warning for a finding of fraud.The employee had made fraudulent petty cash claims amounting to R 834.00, but this evidence was not before the employer representative when the written warning was issued. As a result, a second disciplinary enquiry was held and the employee was dismissed. The employee referred an unfair dismissal dispute to the CCMA. The arbitrator ruled that the dismissal was unfair as the employee was punished twice for the same offence. The arbitrator's ruling formed the basis of the appeal.The court placed emphasis on the principle of fairness and held that the arbitrator had failed to make a decision based on the merits of the matter. The court referred to BMW SA (Pty) Ltd v Van der Walt,2 which held that a second disciplinary enquiry may only be convened if it is fair to do so.In Branford, the court held that the arbitrator's ruling deviated from the principle of fairness as it saddled the employer with a quick, ill-informed and incorrect decision. The court set aside the ruling and held that the employee's dismissal was fair.

    In Greater Letaba Local Municipality v Mankgabe NO and another (Greater Letaba), 3an employee who was in possession of a company vehicle without permission caused a very serious car accident. The chairperson of the disciplinary enquiry found that a written warning and 10 days suspension without pay was the appropriate sanction in the circumstances. The finding and the sanction was, however, subject to the approval of the employer's executive committee. Taking into account the seriousness of the misconduct, the committee did not accept the sanction and dismissed the employee without affording him another hearing. The employee referred an unfair dismissal dispute to the CCMA. The arbitrator ruled that the committee had improperly overruled the sanction and ordered that the employee be re-instated with retrospective effect. The court made no specific reference to the principle of fairness and double jeopardy as was done in Branford, but considered a conservative approach as set out in SACCAWU & others v Irvin & Johnson (Pty) Ltd. 4The approach holds that, although incorrect, if a decision was made honestly, such a decision is fair and should not be interfered with. An incorrect decision can only be interfered with if it is induced by improper motives of the presiding officer. The court in Greater Letaba also considered a liberal approach adopted in Cape Town City Council v Masitho, 5which reinforces the principle of consistency by stressing that fairness requires that disciplinary sanctions must be imposed consistently on delinquent employees. This approach was preferred in Greater Letaba on the basis that a wrong decision should not be allowed to stand due to the chairperson's innocent motives. The court confirmed the decision of the employer's executive committee to dismiss the employee.

    Another example is found in MEC for Finance, Kwazulu Natal and another v Dorkin NO & another, 6in which an employee was charged with several kinds of misconduct, resulting in a loss of approximately R1.2 million to the department. After convening a disciplinary hearing, the employee was found guilty on all counts and the disciplinary tribunal found that a final written warning was the appropriate sanction in the circumstances. Due to the seriousness of the charges, the KZN government sought a dismissal of the employee and approached the Labour Court to review and set aside the sanction of the tribunal. In response to the jurisdictional issues that arose, the court found that state departments must be permitted to approach the courts to seek interference with decisions of its disciplinary tribunals with the view to rectifying the decisions. The court set aside the tribunal's decision on the grounds that it was unreasonable and ordered that the employee be dismissed. The court justified its interference with the tribunal's decision by stating that the dismissal of the employee was in the public interest as it affected public funds.

    All the principles set out above were also accepted and applied in Samson v CCMA (Samson). 7The court went further and held that it is not procedurally unfair for an employer to overturn a decision of a chairperson and dismiss an employee in their absence, if such an employee is later given an opportunity to internally appeal the decision to dismiss them. In Samson, the employee distributed pornographic material to other employees and the chairperson decided that a final written warning was the appropriate sanction. The employer overturned the sanction and dismissed the employee. The employer advised the employee of the decision to him by means of a letter which also set out his right to appeal the decision internally.


    Footnotes

    1 [2004] 3 BLLR 199 (LAC).
    2 (2000) 21 ILJ 113 (LAC).
    3 [2008] 3 BLLR 299 (LC).
    4 [1999] 8 BLLR 741 (LAC).
    5 (2000) 21 ILJ 1957 (LAC).
    6 [2008] 6 BLLR 540 (LAC).
    7 [2009] 11 BLLR 1119 (LC)