An article concerning the employment relationship in the BusinessDay supplement “Business Law & Tax Review” published on Monday 12 April 2010 confirms that some large employers do not avoid criminal law approaches when dealing with ordinary transgressions by employees.
“Double-edged sword in appeal” on page 7 discusses a Labour Court review of a CCMA arbitration award. The employer “charged” and found an employee “guilty” of unauthorised absence from work and insolence. By no stretch of the imagination could those transgressions ever be crimes but some employers persist in treating them as being criminal in nature by “charging” employees as if they were criminals. Not only is such conduct by employers insulting but it is also unacceptable as it impugns the dignity of the employee which in itself could have serious consequences.
This was pointed out in the article on page 6 of the Supplement: “Court hits at employee’s treatment: Firm’s constructive dismissal of member with mental problems punished heavily” where the Labour Appeal Court upheld an award of 24 months salary as just and equitable compensation for an employee whose dignity was impugned. See New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC). The earlier Labourt Court judgment which was upheld is Marsland v New Way Motor & Diesel Engineering (Pty) Ltd [2008] 11 BLLR 169 (LC).
It also needs to be pointed out that the judge in the Labour Court used the word “sanction” in the context of employment law and drew a comparison with criminal law in discussing the rights of employers to impose a more severe “sanction” when an employee appeals internally against any disciplinary finding. The Labour Court case being discussed was Rennies Distribution Services (Pty) Ltd v Bierman.
Not only is there no reference to the word “sanction” in labour legislation but its continued use by judges tends to suggest that employers have some god-given right to behave like “masters” in dealing with “servants”. There is a failure to appreciate that the employment relationship treats both parties as equals. If employees engage in any type of criminal conduct, such as theft or assault, then employers should report the matter to the police and allow the law to take its proper course. That does not deprive employers of the right to treat the transgression as a fair reason to terminate employment provided a fair procedure is followed (the right to be heard before the employer takes a final decision) and the employer is able to prove that such conduct seriously damaged or destroyed the trust relationship and made a continued working relationship intolerable.
Employers are looking for trouble when they treat such transgressions as crimes and “charge” and find employees “guilty” of anything.
It is also necessary to comment on another article entitled “Validity of medical notes” on page 5 of the Supplement where reference is made to Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 8 BLLR 699 (SCA). It is incorrectly contended in the article that “(F)airness and fairness alone is the yardstick in labour law”. Lawfulness or wrongfulness is just as important and will usually result in unfairness. In other words the termination of an employment contract without notice by either party, in the absence of any material breach by the other party, is unlawful or wrongful and can provide a legitimate cause of legal action in the Labour Court or the civil courts. Claims based on such causes, unlike causes of action that flow from statutes such as the Basic Conditions of Employment Act 75 of 1997 or the Labour Relations Act 66 of 1995, do not need to be referred to the CCMA or any Bargaining Council before being adjudicated. The prescription period for unlawfulness is 3 years and not 30 days as provided in the Labour Relations Act.
I found this article somewhat difficult to interpret, not having read the Business Day, and was unsure what was being said by the reporter or Graham. The phrase ‘continued use by judges tends to suggest that employers have some god-given right to behave like “masters” in dealing with “servants”’ appeared particularly subjective.
But surely this is an example of ‘politically correct speech’ once again being imposed to delete perfectly acceptable words? Whilst the words ‘charged’, ‘guilty’ and ‘sanction’ might have started life as legal terminology, they are now words commonly and frequently used in everyday language by laymen to convey a meaning that is generally perfectly understood. As a businessmen I certainly do not think of their usage as creating criminals out of employees; I think I would be guilty of naivety to think so. Indeed the article/comments appear to make such an assumption ludicrous when stating “By no stretch of the imagination could those transgressions ever be crimes . . .” and then goes on to state how they can be imagined as such!
As usual, when reading related articles, I note that no acceptable words are submitted for consideration.
I agree with and support the concepts of the Constitution and labour legislation, but I suggest we are being side-tracked by semantically based issues, rather than concentrating upon fairness.
Thank you very much for your comment Graham but with respect I think you are confusing the necessary internal company procedures with court proceedings.
In March 2006 judge Van Niekerk, in the Labour Court, correctly made the point that the approach adopted in the new LRA represents a “significant and fundamental departure from what might be termed the ‘criminal justice’ model that was developed by the industrial court .… That model likened a workplace disciplinary enquiry to a criminal trial . . .” (see Avril Elizabeth Home for the Mentally Handicapped v CCMA and also National Bioinformatics Network Trust v Jacobson).
The new LRA does not require internal company procedures to take the form of a “trial”. Even the word ‘hearing’ does not appear in the new LRA. The LRA and natural justice simply require that an employee has the right to be heard before any adverse decision is taken by the employer. Employers must simply state the facts as they understand them and afford employees the opportunity to respond ( a right to be heard). For that reason it is facts that are important and not “charges”. Management must decide after taking everything into account whether there is a valid and fair reason to terminate employment. There is definitely no need to find anyone “guilty” of anything. Depending on the circumstances employers will issue warnings or terminate employment. In that event employers must be satisfied that they will be able to prove in the CCMA or the Labour Court that continued employment is intolerable or that the trust/confidence relationship is seriously damaged or destroyed. If the reason for termination is not related to gross or serious misconduct employers are obliged to provide reasonable notice of termination or payment instead thereof to avoid acting unlawfully and in breach of the common law or the BCEA.
What seems to be overlooked is that employers do not even need to prove fault to terminate employment. The LRA simply states that apart from a fair procedure there must be a fair reason related to the employee’s conduct or capacity. The balancing factor is the legal requirement for employers to give reasonable notice, except where there is gross or serious misconduct.
Please read my recent post “Notice: Employer’s reason for termination must be lawful, valid & fair”
Thanks Graham but, nope, I am not confused. Whilst I hesitate to cross words with learned minds, my argument is not with procedures or ‘criminal justice’ but with terminology or semantics. I otherwise fully support your comments, as well as ‘Avril’ and ‘National’: but I do not agree that the use of what have become everyday words, whatever their origin, means businessmen automatically consider their employees ‘criminals’.
The word ‘guilty’ simply means, after considering all the facts (evidence is probably a non-word now), that “the Butler done it”. “Charge” simply means that such and such is what the Butler is alleged/perceived/considered/maybe had done. The fact that the LRA does not mention specific words surely does not mean they are banned from the English language. The fact that words have more commonly been used in the legal fraternity does not mean other fraternities cannot use them to convey a precise sense of meaning.
Enough from me on this subject; perhaps others would care to comment. Maybe someone can suggest alternative words for ‘guilty’ that concisely, adequately convey the sense of, well, guilt. (I find that ‘you done it’ doesn’t count).
Hopefully my final word on this subject.
The difference is does the employer simply allege that an employee has behaved dishonestly or provide the facts to back up the allegation? Employers are now required to provide the facts to support any allegation that an employee has done something that has destroyed the employer’s trust/confidence and made continued employment intolerable.
Providing the facts avoids the need to lead any evidence during the internal investigation because the employee simply confirms or disputes the allegations provided by the employer.
Sometimes the employee resigns when it is realised that the employer has all the necessary evidence to justify a fair and valid reason for termination related to conduct.
To sum up: however the process is described employers must provide employees with the necessary facts as they see them to enable the employee to respond properly. Employers are not allowed at the CCMA arbitration to rely on additional facts that were not provided to the employee prior to termination.
Extremely interesting and thank you both Grahams for enlightening and well reasoned comments; perhaps I can prompt some further discussion from at least one of you and, hopefully, from another reader.
Like GN, I read GG’s comment in Business Day without having had sight of the article in “Business Law & Tax Review”. I liked it because I try to get employers to move away from using words like “charges” and a host of other borrowed terms from criminal proceedings in internal disciplinary procedures (prosecutor, plaintiff, complainant, defendant … no wonder I have been addressed as “Your Honour” when chairing disciplinary hearings!). This is one small step towards the “god-given right” of being “Master” (upper case intentional) over the “servant”, regrettably still all too common. I found GG’s approach refreshing, but have always thought of him as a pleasingly atypical lawyer, with his passion for relationships and alternative dispute resolution, particularly mediated and mutually agreed outcomes. Not surprisingly he was one of our earliest mediators and instrumental in establishing the first body in SA to introduce this approach to the field of labour and workplace disputes.
But, like GN, I feel it isn’t about semantics, nor am I concerned whether the LRA uses a word (however carefully I believe many of those words were chosen) or not; shall I banish “retrenchment” too because the Act uses only “dismissals based on operational requirements”?
But GN has some very good points. Just the other day I found one employee “not guilty” and another “guilty” of the alleged misconduct. And I do often explain that the second part of the disciplinary hearing is to decide, if there was misconduct, what the appropriate “sanction” (I usually add “or disciplinary action”) should be.
Oh, acceptable words? The prosecutor is usually just the Employer rep or spokesperson; the plaintiff the Employer; the complainant an employee or manager who brought the misconduct to management’s attention; and the defendant the Employee.
Having read the discussion above, I probably missed a lot first time round, and probably a little the second time! And I will read Avril and National. But comments would be welcomed. Especially from the two Grahams, who I an hoping have NOT had their final word.
Thank you Theo for your kind words and comments.
One of the first important lessons taught to aspiring lawyers is to use the language of any statute and not to use your own words. From 1979 until the codification of the termination of employment in the new LRA of 1995 by Professor Halton Cheadle and his drafting team the statute only referred to “unfair labour practice”. The new LRA introduced words and concepts such as ‘dismissal’, ‘unfair reason’, ‘unfair procedure’, ‘conduct’, ‘capacity’, ‘investigation’, ‘allegations’ and ‘opportunity to state a case in response to the allegations’.
Prior thereto and in the absence of any guidance from the statute practitioners adopted the ‘criminal justice’ model and worked with expressions like ‘charge’, guilty’ and ‘sanction’. In essence a system of ‘charge and convict’ became the norm and that is what Professor Halton Cheadle and his drafting team wanted to change when they codified the law and introduced the notion of ‘dialogue and reflection’ as will be seen below.
It was only in 2006 that the Labour Court in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (LC) explained the changed intent. See also pages 403 – 405 Du Toit et al “Labour Relations Law: A Comprehensive Guide” (5ed, 2006 LexisNexis).
Allow me to quote extensively from the very clear judgment of Van Niekerk J in the above case:
“To some extent, Chapter VIII of the Labour Relations Act represents a codification of the jurisprudence that preceded it. The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure. The nature and extent of a right to fair procedure preceding a dismissal for misconduct is spelt out in specific terms in the Code of Good Practice: Dismissal in Schedule 8 to the LRA.
Item 4 of the Code provides:
‘Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry (my emphasis). The employer should notify the employee of the allegations using a form and a 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’.
It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.
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.
The balance struck by the LRA thus recognises not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits. Where a commissioner is obliged (as commissioners are) to arbitrate dismissal disputes on the basis of the evidence presented at the arbitration proceedings, procedural requirements in the form that they developed under the criminal justice model are applied ultimately only for the sake of procedure, since the record of a workplace disciplinary hearing presented to the commissioners at any subsequent arbitration is presented only for the purpose of establishing that the dismissal was procedurally fair. The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee.
The signal of a move to an informal approach to procedural fairness is clearly presaged by the explanatory memorandum that accompanied the draft Labour Relations Bill. The memorandum stated the following:
‘The draft Bill requires a fair, but brief, pre-dismissal procedure . . . (It) opts for this more flexible, less onerous, approach to procedural fairness for various reasons: small employers, of whom there are a very large number, are often not able to follow elaborate pre-dismissal procedures; and not all procedural defects result in substantial prejudice to the employee’.
On this approach, 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.
The nature and extent of the fair procedure requirements established by the Labour Relations Act and the Code is supported by international labour standards. International Labour Organisation Convention 158 requires procedures to promote compliance with the obligation to ensure that dismissals are based on valid reasons. Although South Africa has not ratified Convention 158, and is therefore not obliged to implement its terms in domestic legislation, the Convention is an important and influential point of reference in the interpretation and application of the LRA (see NUMSA & others v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 (CC)). The observations and surveys by the ILO’s Committee of Experts on Convention 158 are equally important as a point of reference in the interpretation of Chapter VIII of the LRA and the Code since they give content to the standards that the Convention establishes. This is particularly so in the present instance because both Chapter VIII and the Code draw heavily on the wording of Convention 158.
International labour standards are also significant in that they give content to the constitutional right to fair labour practices (see NEHAWU v University of Cape Town & others (2003) 24 ILJ 94 (CC) at 113–114). The right to fair labour practices contained in section 23 of the Constitution, to the extent that it provides the foundation on which section 185 of the LRA (the right not to be unfairly dismissed) is based, itself requires a recognition of the tension between the interests of workers on the one hand and the interest of employers on the other. The Constitutional Court has stated that care must therefore be taken to accommodate, where possible, these conflicting interests so as to arrive at the balance required by the constitutional conception of fair labour practices. It is in this context that the LRA, and in this instance, Chapter VIII and the Code, must be construed (see the University of Cape Town case at 113B–C).
Article 4 of Convention 158 provides that:
‘. . . the employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity’.
In its interpretation of this article, the ILO’s Committee of Experts in ‘Protection against Unjustified Dismissal General Survey, International Labour Conference 82nd Session of the International Labour Conference 1995’ has observed that the Convention does not state explicitly what form the opportunity to present a defence should take, or the form in which the allegations should be presented. In its last General Survey on the application of the Convention, the Committee of Experts observed that:
‘[147] It is clear from the preparatory work that the opportunity for a worker to defend himself is related to the possibility of his being afforded an opportunity to be heard by the employer, without there being a need for an adversarial proceeding. In reply to the proposed text submitted to the Conference by the Office and after the first discussion, which provided that the employment of a worker should not be terminated for reasons related to his conduct or performance before being afforded a hearing by the employer and given the opportunity to defend himself against the allegations made, three governments proposed to delete the reference in this paragraph to the word ‘hearing’, which they believed implied a quasi-judicial procedure, with a view to greater flexibility. The Office pointed out that inasmuch as the word ‘hearing’ might have such a connotation it felt that this reference could well be deleted without affecting the substance of this provision, according to which a worker should not have his or her employment terminated for reasons of conduct or performance before being given an opportunity to defend him- or herself against the allegations made.
[148] Over and above the terms of Article 7 and its meaning, which is to allow workers to be heard by the employer the purpose of this Article is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties.”
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))”.
“The standard of procedural fairness that I have described above is the standard that the Act establishes and which must be applied by commissioners. Section 203 of the Act obliges them to do so. That section requires, in peremptory terms, that any person who interprets or applies the Act must take into account any relevant code of good practice.
This is not to say that employers and unions cannot agree to retain the criminal justice model if they are so inclined, whether by way of a collective agreement (as was the case in MEC, Dept of Finance, Economic Affairs & Tourism, Northern Province v Mahumani [2005] 2 BLLR 173 (SCA)) or by way of a contract of employment or employment policies and practices. In this instance, employers are obviously bound to apply the standards to which they have agreed or that they have established”.
Thank you Graham. I appreciate the trouble you have taken to respond so fully and lucidly; I am glad I got involved in the comment section. I have a greater understanding of the many good points you make.
Item 7(b)(iv) of Schedule 8 to the LRA refers to “an appropriate sanction”
You make a good point but there have been a number of recent criticisms of that Code in that it also refers to an ‘offence’ and once again strictly speaking ‘offences’ usually refer to criminal offences.
It has been seriously suggested that a new Code needs to be drafted and hopefully effect will be given to what Van Niekerk J spelt out in the Avril Elizabeth Home case.
Black’s Law Dictionary (7th ed) defines ‘sanction’ as “a penalty or coercive measure that results from failure to comply with a law, rule, or order”.
Employers do not have the right to penalise or coerce employees. It is better to talk about setting standards of conduct and performance and ensure that they are maintained by having and applying appropriate grievance and disciplinary procedures.
The LRA makes it clear that employers also have a right to terminate employment if it is done fairly and lawfully.
Yes, Graham, but the OED also has the following for “sanction”, “Ethics – a consideration operating to enforce obedience to any rule of conduct”, and that does seem to be what a chairperson is supposed to ponder on after finding that it has been shown on the balance of probabilities that there was indeed misconduct on the part of an employee. In 1(3) the Schedule says “A premium is placed on BOTH employment justice and THE EFFICIENT OPERATION OF BUSINESS” (my emphasis).
It may be true that a new Code needs to be drafted, but it is not going to help if it merely plays with words.
Greater emphasis should be given to the essence of a fair hearing being that the person who presided should have heard and taken into account both sides of the story, with less regard for legal formalities. I have little doubt that an employer that relied on a defence against alleged procedural unfairness that ‘there was “dialogue and reflection” ‘ would fall foul of just about any CCMA Commissioner’s ruling.
And will it help if the Act/Schedule eliminates the need for managers to be “experienced judicial officers” but still requires CCMA Commissioners to be, or imitate, just that?
I am, admittedly, “thinking aloud”.
Theo the new LRA intended any ‘hearing’,in the sense of both sides having a right to be heard before an independent person such as a CCMA commissioner, to take place externally.
Employers are only expected to ‘hear’ the employee before management takes a decision to terminate employment. In other words it is not expected that management should abdicate its prerogative to ensure the efficient operation of the business. There is no need to adduce evidence at that stage, only allegations. No neutral person is required because it is not a ‘hearing/trial’ in the formal sense of the word.
However, if the employee refers a dispute to the CCMA or BC employers must be prepared to prove the overall fairness and lawfulness of the ‘dismissal’. It would be pointless for employers to lead evidence, etc internally when it all has to be done again before the CCMA/BC.
That is what Van Niekerk J is trying to tell us and he is absolutely correct. See his judgment in the National Bioinformatics Network Trust v Jacobson case. There the employer spent thousands of Rand on the internal procedures and was then told to do it all over again in the CCMA without the benefit of legal representation. So what was the point of wasting all that money and time?
CCMA/BC arbitrators need to be informed of the real intention of the new LRA so as not to expect a formal hearing before they do their work in deciding whether the employer has proved the fairness of the ‘dismissal’.
Your comment is once more very clear and helpful. What a pity that more practitioners are not joining this debate. I would love to know whether ANY employers (or CCMA commissioners?)are applying the ‘new’ LRA in this manner. You are right about employers’ feelings of frustration at having to do everything twice; what is worse is that some of them allow yet another ‘hearing’ in the form of an internal appeal and do it three times. Didn’t somebody remark that the new LRA’s short title was ‘Act for the Full Employment of Lawyers’?
I will certainly re-read the National Bioinformatics case.
I suppose it is as well to remember that many employers have disciplinary procedures, agreed or otherwise, that require a more formal process akin to a ‘trial’.
Trade union agreement will have to be obtained for any changes if those procedures are in a binding collective agreement.
It must also be remembered that the LRA does not discourage employers and trade unions from agreeing to refer disputes to some type of private arbitration (TOKISO for example). The parties can then select a neutral arbitrator and even determine the standards/tests that will apply. See my recent post regarding the LAC judgment on reviewing such private awards. Section 33 of the Arbitration Act applies and not LRA s145 and there is less likely to be any interference with a proper award if it goes on review to the Labour Court.
Perhaps one should view the CCMA as a type of public “hospital” where disputes go if the employer does not have private “dismissal insurance”! Employers who fail to arrange for an alternative method of dispute resolution can hardly complain if the treatment they receive at the CCMA is not to their liking.