In South African Broadcasting Corporation SOC Ltd v Phasha – (2021)30 LAC 1.11.9, a General Manager was charged with misconduct and agreed to a hearing conducted by a CCMA Commissioner in terms of section 188A of the Labour Relations Act (LRA).

The employee, upon learning it was Commissioner Phala, brought an application seeking the recusal of Commissioner Phala. According to her, he was the chairperson of a range of internal disciplinary proceedings involving staff of the employer, all of which had been conducted in the offices of their attorneys.

She stated that she was suspicious of the long-standing relationship between Mr Phala and the firm of attorneys. In her view, there was a reasonable apprehension that she would not benefit from an impartial hearing. She contended that the matter should proceed before a Senior Commissioner who had not dealt previously with employment disputes involving the employer.

The hearing was rescheduled for 11 December 2018. The notice of set down generated by the CCMA identified Mr Terry Moodley as the Commissioner who was now to conduct the section 188A enquiry. And yet again, the employee was not satisfied with the appointment. According to the employee, “It then dawned on me that he had been the same Commissioner who had rendered an award of dismissal against Mr Hlaudi Motsoeneng”. She thus launched another recusal application.

Commissioner Moodley issued a ruling in which he found that her perception of bias was unreasonable and without a factual foundation. He dismissed her application. After the employee’s allegations in the recusal applications, the employer sent a letter requesting the employee to make representations as to why she should not be dismissed for making the recusal applications, alleging that their contents had breached the trust relationship and her employment contract (duty of good faith). The employee’s attorneys responded to the letter asserting her rights to a hearing, however, made no representations. The employee was therefore summarily dismissed.

Labour Court

The employee launched an urgent application in the Labour Court, alleging that the employer had breached her employment contract. The employee was of the view that her termination was unlawful.

The Court held in favour of the employee and found that the summary dismissal was unlawful.
SABC was interdicted from pursuing any disciplinary action against the employee except for an inquiry under section 188A and directed the Corporation to pay the costs on a punitive scale.

Labour Appeal Court

The SABC then approached the Labour Appeal Court. The employer contended, on appeal, that although the SABC’s Disciplinary Code was incorporated in the employee’s employment contract, a provision in the contract – which expressly entitled the Corporation to terminate the contract if the employee committed a material breach or the Corporation lost confidence in her – superseded the Code.

The Labour Appeal Court noted that the consequences of the SABC’s argument would be that the contractual provision on which it relied would relieve the Corporation of the need to offer any form of hearing to an employee it decided to dismiss summarily.

Turning to whether the SABC was entitled to abandon the section 188A process, the Court noted that disciplinary proceedings conducted under that provision are consensual. In this case, the process had commenced but did not proceed because of the Corporation’s reaction to the recusal applications.

The Court found that the recusal applications amounted to independent acts of misconduct. The SABC was putting form over substance. The Corporation should have formally charged the employee with the additional misconduct and brought them within the scope of the section 188A proceedings.

The Court added that the judgment should not be construed as suggesting that employers may not proceed with separate disciplinary measures in circumstances where a discrete act of misconduct occurred – which was unconnected -with charges that gave rise to a section 188A Arbitration. In this case, the unlawfulness of the SABC’s conduct rendered the employee’s dismissal void and the employee was entitled to return to her position. However, this did not preclude the SABC from continuing with the section 188A hearing.

Regarding section 188A hearings before a CCMA Commissioner, the key lesson is that you can always add charges after the process has started. This just means a slight delay but may be worth it and expedite a fair dismissal.

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