Can the Employer Re-Do a Disciplinary Hearing - Pdf

Can the Employer Re-Do a Disciplinary Hearing? By Johanette Rheeder Employers are not always satisfied with the decision of its chairpersons, and the question then arises whether it can change the finding? In SARS v CCMA & others1 the independent chairperson did not dismiss the employee, where after the employer dismissed the employee without holding another disciplinary hearing. The court found that this case is similar to Country Fair Foods (Pty) Limited v Commission for Conciliation, Mediation and Arbitration & others2 . In the Country Fair Foods case the LAC confirmed that without a provision in the employer’s code permitting the managing director to interfere with the decision of the chairperson, such interference was unjustified. In the SARS case, the court looked at the collective agreement regulating disciplinary hearings. In this instance, the collective agreement was silent about whether the decision of the chairperson of the disciplinary inquiry is final or not. It had no express provision that permits SARS to substitute the chairperson’s decision with its own. Instead, the collective agreement obliges SARS to implement the decision of the disciplinary chairperson. The LC found that as SARS did not reserve for itself the right to substitute the decision of the chairperson of the inquiry with its own, it was bound to implement the decision of the chairperson. However, if it disagreed with the chairperson’s decision, it had another remedy. It should be noted however that this remedy applies to organs of state and not private organisations. The LC found that although SARS could not substitute the decision of the chairperson of disciplinary enquiry, it could also not be saddled with an egregious decision. If, therefore, in principle or as a matter of fairness and justice, it should be possible to reject the decision of the chairperson of disciplinary enquiry, does the law permit it? The LC found yes, SARS is an organ of State exercising public power and performing public functions. As the chairperson of the disciplinary enquiry acts in place of SARS, her decision is reviewable as a decision of SARS as employer under section 158(1)(h) of the LRA. In Mokoena v Reitz Spar3 the employer unilaterally changed the decision of an attorney who had chaired the disciplinary enquiry, without another hearing. Since the employer was not an organ of State, it could not rely on section 158(1)(h) of the Act to review the chairperson’s decision. One of the decisions the CCMA commissioner relied on, in coming to the conclusion that the employer cannot simply substitute the chairperson’s decision with its own, was the SARS v CCMA decision. Does this mean that if a private sector employer, confronted with a decision of a chairperson, does not agree with the decision or if it does not seem to fit the offence, it must simply accept that decision? These are controversial findings. As a general rule, employers should be very careful to start the practice of charging an employee more than once on the same facts. Preferably, this should only happen when new facts arise or where it is very clear that the first chairperson made a serious error on fact. Such examples can be if the chairperson was biased, there was a grave mistake in the process, or if there is a clear irrationality or if the chairperson’s written reasons are nonsense. Under these circumstances it will always be preferable for the employer to convene a new disciplinary enquiry and start from scratch, and not just simply substitute the chairperson’s decision with its own. Under the requirement of a fair procedure, the question also arises often whether an employer can hold a second hearing if it is not happy with the outcome of the first disciplinary hearing.