According to a recent report in the Mail & Guardian COSATU, the employer of Mr Zwelinzima Vavi , delivered a ‘notice of disciplinary enquiry’ to him dated 13 January 2014. The notice calls upon him ‘to attend a disciplinary enquiry at which he required to plead to and, in respect of matters in dispute, will be presented with evidence concerning the allegations against you that are set out below’. He will also ‘be notified in due course of the venue for the ‘hearing’.
The purpose of the new LRA
The new Labour Relations Act of 1995 (LRA) came into force in November 1996, some 18 years ago. One of the main purposes of the LRA was to stress that the relationship between employers and all employees, including those in the public sector, was based on agreement in the form of an employment contract. The LRA also decriminalised certain conduct such as strikes and lockouts. It simplified the internal procedures when managers were contemplating dismissal. It followed the ILO Convention of 1982 by ensuring that all managers must allow employees to be ‘heard’ and respond to allegations before any final decisions are taken.
Employees have a statutory right not to be unfairly dismissed and to refer alleged unfair dismissal disputes to the CCMA in the absence of a bargaining council. After an attempt at conciliation there will be a fresh formal hearing by the CCMA unless the matter is serious enough to be referred to the Labour Court for adjudication.
Avoid criminal precedents
Justice Van Niekerk in the Labour Court pointed out many years ago in a landmark judgment that the purpose of the internal procedure was ‘dialogue and reflection’ and that the proceedings should never take the form of a criminal trial.
Recently the Labour Appeal Court has stated that managers should not be prevented from following the statutory procedures in section 189 of the LRA and engage in a joint consensus-seeking procedure even when a contemplated dismissal is related to conduct or capability. Such procedure clearly benefits the employee in that severance pay will have to be paid in addition to notice pay.
COSATU’s (mis)understanding of the labour laws
One can only marvel at COSATU’s ignorance and disregard of all the developments in employment law since at least 1996. The infringement of My Vavi’s’ dignity is also of concern and also his right not to be defamed by publishing ‘charges’ against him. The course embarked on by COSATU is also likely to lead to protracted and expensive litigation when it could have been avoided.
What are the hazards for COSATU:
- It is totally unfair and unreasonable to expect an employee to ‘plead’ to a ‘charge’ because these are not criminal proceedings;
- All that labour law requires is a list of factual allegations or averments and the employee must be allowed to respond to them;
- A record of the internal ‘hearing’ will have to be kept including the testimony of any witnesses and this will be used to cross-examine the witnesses later;
- If Mr Vavi is dismissed he has the right to refer the dispute to the CCMA and if there is a fresh hearing before an arbiter everything will have to be done again;
- Advocate Wim Trengove SC will not have to be called to give evidence at the CCMA;
- His findings and reasons are irrelevant because there will be a fresh full hearing in the CCMA;
- Someone from COSATU will have to testify under oath why it was decided to dismiss Mr Vavi and prove on a balance of probabilities and clear and convincing evidence that there was a valid and fair reason to dismiss him related to his conduct;
- If COSATU decides to carry out its intention of dismissing him ‘summarily’ then it will also have to prove that it was done lawfully;
- That means COSATU must prove that Mr Vavi repudiated his contract by materially breaching it and allowed COSATU to cancel it without proper notice.
Advocate Wim Trengove SC will chair the enquire
‘who will be authorized to make findings on all the charges against you and , in the event of a finding of guilt on one of more of the them, to decide the appropriate sanction’.
In clause 6 he is notified that
‘subject of course to the findings of the chairperson, it is the intention of COSATU to move for your summary dismissal in the event of a finding of guilt in respect of one or more of them’.
And in para 7 it states
‘The documents that COSATU intends to rely upon at the hearing will be delivered to you with this notice’.
There are nine ‘charges‘ and it is stated that in respect of each of the individual charges et out below Mr Vavi is ‘guilty’ of serious misconduct. The charges range from the
- recruitment and employment of a certain Ms X;
- relationship with Ms X;
- conversion of Ms X to permanent employee;
- supervision of Ms X;
- distribution of internal grievance and response;
- personal expenses and personal travel;
- Carte Blanche interview on 4 August 2013;
- Breach of suspension conditions; and
- Utterances derogatory of COSATU and its leadership.
In clause 26 it states that
‘At the hearing of these disciplinary charges, COSATU will as approximate submit that you are guilty as charged, on the basis as aforesaid. Having regard to the gravity of the charges, but subject to the findings of the chairpersons, CODSATU reiterates its notice to you that it will move for your summary dismissal.’
Summary dismissal and proof of material breach of contract
It is worth pointing out that on the face of it none of the allegations are stated to involve any criminal acts and if proved there will have to be some doubt as to whether or not they amount to material breaches of contract. This will have everything to do with whether or not the contract can be terminated lawfully or on notice.