Watching the Senate debates in the USA concerning the appointment of a member of the highest court to replace the recently deceased associate judge it became noticeably clear that there are two distinct schools of thought concerning the interpretation and application of some fundamental principles of the law in the USA.

USA Senate debates

Originalism is a “concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted”.

The non-originalism school believes in “the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of the current times, even if such interpretation is different from the original interpretations of the document.”

South African Constitution

South Africa adopted an entirely new constitution after 1994 with a Bill of Rights and so the concept of ‘originalism’ is completely unknown in our country.  All court judgments and statutes have to be tested against the ‘values’ that we now live by in South Africa.

With regard to interpretation of statutes see Statutory interpretation considered: Procurement contracts.

Zondo Commission

Recent proceedings at the Zondo Commission involved senior management employment issues at Transnet.  The discussion concerned unacceptable activities of a very senior manager. The proceedings were even more interesting because all the lawyers are experienced and senior practitioners in the field of employment and labour law.

Deputy Chief Justice Raymond Zondo practised in KZN as an attorney and then served on the labour court from 1997 before being appointed to the labour appeal court in 1999 and eventually becoming the judge president of LAC until 2010 and was then elevated to the constitutional court in 2013.

Leading the evidence is a very senior and experienced practising advocate who has acted in the labour court many times during the period 2011 to 2018.

A key witness was also a very senior and experienced practising attorney who has also acted as a judge in the labour court from 2004 to 2009.

Language issues

But during the proceedings anyone listening to the evidence and arguments could be forgiven for thinking that they were dealing with criminal law and not employment law.  We kept hearing words like ‘charges’, ‘guilty’ or ‘not guilty’ and ‘offence’ and ‘sanction’.

Double jeopardy concept: Avoid charges focus on fairness

I do not recall any reference to any criminal prosecution. The discussions concerned internal proceedings and an arbitration and condonation.  If Transnet believed that the senior manager had committed any serious ‘offence’ they were legally obliged to report it to the police for further investigation and possible prosecution. In some circumstances it is a criminal offence to refuse or fail to report corrupt activities to the relevant authorities for possible prosecution of the offender.

Reporting corruption: Senior management obligations

Out-dated school

The ‘out-dated school’ regards management as having the power and perhaps even the duty to ‘punish’  employees and enforce discipline through disciplinary ‘hearings’.  Employees are then ‘charged’ with various offences and required to plead ‘guilty’ or ‘not guilty’ to the charges.  Evidence is then adduced and findings of ‘guilty’ or ‘not guilty’ are made.  A ‘sanction’ is then imposed ranging from a written warning to summary dismissal.

Not guilty as charged: Protection not punishment

Practical school

The very few adherents to the ‘practical school’ know and understand that the law relating to employment and labour concerns relationships between parties based on contract.  It falls into the same category as other legal relationship such as marriage, partnerships and letting of property.

A party to such relationships would never dream of ‘charging’ the other party with any ‘offence’ and requiring them to plead ‘guilty’ or ‘not guilty’ and then impose any type of ‘sanction’.

The notion of ‘fault’ was scrapped in 1979 and since then divorces are granted when either party proves an irretrievable break-down of the relationship and ‘fault’ is only relevant to issues relating to the division of assets and the care for the children.

It would be absurd to ‘charge’ a wife or husband or tenant with any offence and make findings of guilt.

ILO Convention and Labour Relations Act (LRA)

Termination of employment relationships in South Africa follow the lead given by the ILO in its Recommendation of 1963 and Convention of 1982. Leaving aside wrongfulness (breach of contract) and unlawfulness (breach of statute) most employees have a constitutional and statutory right not to be unfairly dismissed.

Procedural fairness requires senior management to allow employees the right to be heard before taking any final decision.  The LRA does not even mention the word’ hearing’ and so it is sufficient to inform employees of the averments or factual allegations and afford employees the right to respond to them.

The concept of natural justice and a formal ‘hearing’ is not required because all dismissed employees have a statutory right to refer any alleged unfair dismissal to the CCMA or bargaining council.  If conciliation fails, there will be a formal hearing before a neutral arbiter tasked with determining the validity and fairness of the reason for dismissal.

Importantly neither the ILO nor the LRA require proof of ‘fault’ or misconduct to justify a dismissal.  They expressly use the words ‘conduct’ and ‘capacity’ and not ‘misconduct’ or ‘incapacity’.  The ILO expressly states that unless there is proof of ‘gross misconduct’ all dismissed employees do not forfeit their rights to reasonable notice pay nor even severance pay.

Holistic approach

Properly interpreted and ignoring fair procedures and termination based on operational requirements, the ILO Convention regulates two separate issues by looking at the problem from both sides.

  • Was there a valid and fair reason related to conduct or capacity to terminate services?
  • If so, did the employee deserve to forfeit notice pay and severance pay because of the seriousness of the misconduct?

Summary

I suggest that it should not have been necessary to debate these issues for at least two days at the Zondo Commission and the language used should not have suggested criminality outside the context of a criminal court.

Avril Elizabeth Home judgment

It is worth recalling what justice André van Nierkerk stated nearly 15 years ago in the labour court.

Avril Elizabeth Home for the Mentally Handicapped v CCMA (JR782/05) [2006] ZALC 44; [2006] 9 BLLR 833 (LC) (14 March 2006)

“This approach represents a significant and fundamental departure from what might be termed the ‘criminal justice’ model that was developed by the industrial court and applied under the unfair labour practice jurisdiction that evolved under the 1956 Labour Relations Act. That model likened a workplace disciplinary enquiry to a criminal trial, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context.

The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions are found wanting.

For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgement that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.”

“This conception of the right to a hearing prior to dismissal (what the Committee of Experts refers to as a preceding opportunity for ‘dialogue and reflection’) is reflected in the Code.

When the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.

In the absence of exceptional circumstances, the substantive content of this process as defined by Item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee.

The employer should then communicate the decision taken, and preferably communicate this in writing. If the decision is to dismiss the employee, the employee should be given the reason for dismissal and reminded of his or her rights to refer any disputed dismissal to the CCMA, a bargaining council with jurisdiction, or any procedure established in terms of a collective agreement (see Item 4 (1) and (3)).” [emphasis added]