The process that should be followed during a disciplinary enquiry is normally set out in an Employer’s disciplinary code.
Labour Court judgment BEMAWU & Others v SABC & Others – 2 March 2016
Application brought by BEMAWU (Broadcasting Electronic Media & Allied Workers Union), obo 35 of its members.
Sought to interdict a disciplinary process in which the SABC intended to take disciplinary action against approximately 100 employees. Process stems from allegations of fraud on a massive scale perpetrated against the SABC Medical Aid Scheme.
SABC’s disciplinary code, which forms part of its employment contracts, provides for individual hearings presided over by a panel of three chairpersons with viva voce evidence and the opportunity to cross-examine. This process is very much in line with a criminal justice model, which do not form part of the Labour Relations Act 66 of 1995.
In light of the disciplinary process being against approximately 100 employees, the SABC instead adopted a process where-
- individual employees are presented with the allegations against them in writing.
- they will then have the opportunity to make written representations that will be considered by a chairperson from a panel appointed by an independent Dispute Resolutions Agency.
- that chairperson will take into account the allegations as well as the representations and will then make a decision whether or not the employee in question has or has not committed the misconduct he/she is accused of.
- if the employee is found to have committed the misconduct, that employee will be given the opportunity to make further representations with regard to sanction. After this, the chairperson will make a recommendation on sanction to the SABC.
Various communication regarding the adopted process the SABC intended on following was sent back and forth between the parties between March 2015 and 19 October 2016, when BEMAWU was informed that no further extension would be granted. The employees received letters from the SABC on 17 September 2015 detailing allegations of misconduct against each of them and inviting them to respond to the allegations.
On 8 November 2015 the Applicants delivered an application on an expedited, but not urgent, basis. No Set Down was served. On 6 January 2016 the independent Dispute Resolution Agency sent notices to the employees informing them that findings in respect of those employees would be made on 18 January 2016.
On 11 January 2016 BEMAWU brought an urgent application on an amended Notice of Motion to be heard on 14 January 2016. The Respondent (SABC & others) objected to the matter being heard on urgent basis.
BEMAWU argued that this departure from the disciplinary code is unfair and should be interdicted.
The Court was not convinced that the matter was in fact urgent and the matter was accordingly struck from the roll. The Court held that the urgency was self-created by the Applicants as they had known for many months that the Respondent refuses suspend the process.
The Court nevertheless made certain observations with regard to the disciplinary process followed by the SABC, as the parties’ legal representatives had addressed the Court fully on the merits during argument.
The Court held that, as the SABC had to deal with similar allegations of misconduct against more than 100 employees, it would be unworkable to adopt a process where each employee must be heard individually, call witnesses and present evidence.
The Court looked at the following relevant clauses of the Disciplinary Code of the SABC, namely:
“Discipline will be maintained through a system of verbal and formal written warnings, hearings and inquiries that will be conducted in such a way as to ensure that discipline is exercised fairly in accordance with the rules of natural justice.”
“For misconduct or offences which in the opinion of management warrant a stronger disciplinary measure than a warning… a formal disciplinary hearing must be held.”
“The following procedure is recommended for the conducting of a disciplinary hearing”
It was found that the process adopted by the SABC envisaged a formal disciplinary hearing, albeit on paper without hearing oral evidence or argument. The Court was of the view that the adopted process ensured that discipline would be exercised fairly and in accordance with the rules of natural justice, and especially the principle of audi alteram partem. The process satisfied the requirements set out in the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC) where the Labour Court found as follows:
“…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.”
It is clear from this judgment, as well as from previous judgments, that the Labour Court favours simplicity over technical or elaborate disciplinary proceedings.
It is therefor recommended that Employers adopt these simplified principles when drafting or amending their disciplinary codes and when preparing for disciplinary enquiries.
By Lizelle Marx