Historically, employers who were dissatisfied with a disciplinary chairperson’s decision were not without a remedy. In Branford v Metrorail Services (Durban) and Others1, the Labour Appeal Court held that they have the option to re-institute disciplinary hearings. However, the options available to an employer have to be revisited after the decision of the Labour Appeal Court in South African Revenue Services v Commission for Conciliation, Mediation and Arbitration and Others2 and the Labour Court in Opperman v CCMA and Others3.
In Branford an employee was issued with a written warning by his senior for financial irregularities. The employer was not satisfied, charged the employee with fraud at a hearing and dismissed him. The matter was referred to the CCMA, which found that the dismissal was unfair because the employee was punished twice for the same offence. The employer successfully reviewed the award in the Labour Court and the employee appealed. The Labour Appeal Court referred to its earlier decision in BMW SA (Pty) Ltd v Van der Walt4 which permitted a second disciplinary hearing if it was fair to do so in the circumstances, and followed it. The court found that the CCMA did not have regard to this principle and confirmed that the dismissal was not unfair. The court made reference to the finding in BMW that “[I]t may be that the second disciplinary enquiry is ultra vires the employer’s disciplinary code.” but did not elaborate on this issue.
In SARS, the chairperson issued an employee who had made a racial slur, with a final written warning valid for a period of six months, suspension without pay for ten days and a referral for counselling. SARS was unhappy with the outcome and dismissed the employee without any further hearing. The employee referred the dispute to the CCMA. The CCMA found that the dismissal was unfair and reinstated the employee. SARS failed in a review application and appealed. The Labour Appeal Court found that SARS dismissed the employee contrary to a collective agreement which obliged SARS to implement the decision of the chairperson. It followed its decision in an earlier SARS case5 that an employer may not interfere with the decision of a chairperson of a disciplinary hearing without the employer’s disciplinary procedure permitting it. A breach of this requirement makes the dismissal substantively unfair irrespective of the seriousness of the offence.
Due to the fact that SARS had overturned the decision of the chair of the disciplinary hearing without convening a second hearing, the Labour Appeal Court did not have to consider its decision in Branford.
Opperman curtails the power of an employer to remedy an unacceptable outcome at a disciplinary hearing on appeal. The employee, a professional nurse, was given a final written warning for being under the influence of alcohol whilst at work. The employee lodged an internal appeal against the sanction but the appeal chairperson thought the sanction was too lenient and amended it to one of dismissal. The employee referred an unfair dismissal dispute to the CCMA which found that the dismissal was substantively fair but procedurally unfair, and ordered three months’ compensation. The employee took the award on review. The Labour Court held that a dismissal would be substantively unfair if an appeal chairperson increased a disciplinary sanction, where the disciplinary procedure did not expressly provide for such power. The court further held that, if the procedure provided for the power, the employee should be warned that the chairperson may increase the sanction and be afforded the opportunity to present argument as to why the sanction must not be increased.
The lesson of SARS and Opperman is that an employer who wishes to have the right to interfere with a sanction imposed by the chair of a disciplinary hearing, should have that right expressed in its disciplinary procedure and afford the employee the opportunity to be heard before doing so. Further, it may very well be that the court, following this principle, would find that an employer has to reserve the right, in its disciplinary procedure, to reinstitute disciplinary hearings in instances where it is not satisfied with the decision of the chair of the hearing. This is a logical consequence of the Opperman decision.
In conclusion, a re-hearing is probably the safest route for an employer who is not satisfied with the finding of a disciplinary chair, but the right to do this should be expressed in the disciplinary procedure and should only be exercised in exceptional circumstances.