Standing your ground
For some time now employers have been hesitant to deal with employees’ misconduct if there is a possibility that they may lean on a ground of discrimination to act against the employer. This situation has been thrown starkly in the spotlight in recent times, as employees may now refer discriminatory matters to the CCMA for arbitration.
SAMWU obo Khumalo / City of Matlosana Local Municipality – (2015)24 SALGBC 8.18.3 is a good example of where a presiding officer could separate the issues and deal with the reason for dismissal rather than get caught up in the discrimination claim. The outcome also illustrates that an employee cannot claim an unfair disciplinary enquiry process if he/she walks out of the process.
In this matter, an HIV/AIDS positive employee challenged her dismissal for not attending work regularly, continued late coming as well as rude, abusive and insolent behaviour towards a supervisor.
After a thorough evaluation of the evidence, it was held that the employee aggressively entered the office of her supervisor, verbally abused her, tore up the letter that was addressed to her and threw it in the face of her supervisor.
The Council found that the employee was not able to rely on her status to justify her behaviour. It met all the criteria for a dismissal – serious breach of a known rule which led to a breach of the trust relationship.
From a procedural perspective the court found that as the employee and her representative had walked out of the hearing, they could not claim procedural unfairness.
Lessons to be learnt:
- Separate the misconduct from the potential discriminatory ground clearly. Once you can prove the fairness of the reason for the dismissal and that it has nothing to do with the discriminatory ground, the dismissal will be substantively fair.
- Always ensure that proper process is followed, even if an employee walks out of a hearing. The process runs its full course in the absence of the employee. As an employee, the lesson to learn is that you should never walk out of your own hearing. Doing this limits your chances of success.
To admit or not to admit…that is the question
The case of Public Servants Association of South Africa obo Leiee and others / Department of Police, Roads & Transport (FS) Ltd – (2015)24 PSCBC 1.8.2 is an attempt to answer this longstanding question in our law – should we, as chairpersons, allow legal representation in disciplinary enquiries.
The employees in this matter referred a dispute concerning the interpretation of a collective agreement (GPSBC Resolution 3 of 2003), which provides, inter alia, that in disciplinary hearings concerning serious misconduct “the chair of the hearing must be appointed by the employer and be an employee on a higher grade than the representative of the employee” and that neither the employee nor the employer may be represented by a legal practitioner except in specified circumstances.
The Commissioner found that, despite several different interpretations, while there is no such general right to legal representation, applications for legal representation must be considered on their merits even if collective agreements or disciplinary codes appear to exclude legal representation absolutely.
The Commissioner found that, considering the above, both parties may formally apply to appoint legal representatives.
Lesson to be learnt:
Whilst not guaranteeing the right to legal representation, this matter emphasises the majority of decisions made in recent years, which have found that even if the disciplinary code clearly does not allow legal representation, chairpersons need to allow the parties to bring an application for legal representation.