The LC reviewed and upheld an award that found a dismissal was not unfair.  Once again the importance of avoiding a criminal style approach was stressed in no uncertain terms.  In particular the LC had no real difficulty with a manager chairing two similar incidents.  The importance of  allowing employees the right to be heard was stressed.  The purpose of doing so is for the benefit of employees.  The employer cannot be faulted if employees refuse or fail to take full advantage of such an opportunity.

Uasa – Union obo Fouche v CCMA (Impala Platinum) (JR119/12) [2016] ZALCJHB 312 (19 August 2016) per Morgan AJ.

Excerpts without footnotes

[34]     The Commissioner found that this did not amount to procedural unfairness – and of course the question on review is whether or not this was a reasonable conclusion.

[35]     Much has been written over the years on the nature of a disciplinary hearing and it is useful to briefly deal with this aspect.

[36]     Section 188 of the LRA provides simply that dismissals must be effected in accordance with a fair procedure. This is amplified by item 4(1) of the Code of Good Practice which provides as follows:

Normally the employer should conduct an investigation to determine whether there are grounds for dismissal.  This does not need to be a formal enquiry.  The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.  The employee should be allowed the opportunity to state a case in response to the allegations.  The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.  After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

[37]     In Avril Elizabeth Home for the Mentally Handicapped v the Commission for Conciliation, Mediation and Arbitration and Others van Niekerk, AJ (as he then was) examined the appropriateness of the criminal justice model which is almost unquestioningly applied to disciplinary enquiries.  In that matter the court found that this model is not appropriate to the workplace situation, holding that:

…  there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge-sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like.

[38]     The court continued:

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 the 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.

[39]     Despite the fact that a number of decisions over the years have followed the approach endorsed in Avril Elizabeth, employers continue to implement, and employees continue to expect a criminal justice style of enquiry.

[40]     More recently in BEMAWU and Others v SABC and Others[3] [2016] 6 BLLR 595 (LC) the court again had cause to examine the fascination with a criminal justice style of disciplinary enquiry.

[41]     The court, per Steenkamp, J clearly aligned itself with Avril Elizabeth finding that a departure from the “normal” procedure in that instance would not lead to grave injustice.

[42]     I concur fully with the reasoning expressed in Avril Elizabeth and the subsequent cases referred to above. A disciplinary enquiry is not, and was not intended to be, a criminal trial.  This is not to say that fairness and justice are to be sacrificed for reasons of workplace expediency however the ultimate yardstick is fairness.