On 1 January 2012 the new CCMA Guidelines dealing with arbitrations concerning a fair reason to dismiss relating to conduct take effect.
There is an important shift in thinking about procedural unfairness. Materiality, actual prejudice and inconvenience will now become important factors as will appear from the following list, taken from the extracts below.
• Was the defect material ?
• ‘Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness in a dismissal case’
• ‘an arbitrator should weigh up the materiality of the breach and the prejudice to the employee in determining compensation, if any, for the procedural unfairness’
• ‘Ordinarily, departures from established policies and procedures, or from the Code, should not result in a finding of procedural unfairness unless there is material prejudice to the employee’
• ‘An arbitrator may find that a dismissal is procedurally unfair but award no compensation because the procedural irregularity was minor and did not prejudice or inconvenience the employee’
Here are some pertinent extracts from the new CCMA Conduct Guidelines relating specifically to situations where there may not have been complete or proper compliance with pre-dismissal procedures.
“58 When arbitrators decide whether a dismissal was procedurally fair, they must have regard to item 4 of Schedule 8 to the LRA (the Code of Good Practice: Dismissal). If there is a workplace disciplinary procedure in place, an arbitrator must have regard to that procedure. The arbitrator’s approach to the procedural fairness of a dismissal will be determined by the existence of a workplace procedure and the legal status of that procedure”.
If there is no workplace disciplinary procedure
“61.4 . . . The determining factor in assessing the fairness of the hearing is whether the employee was given a proper opportunity to state a case”.
62 The Code permits an employer to dispense with the procedures provided for in the Code in exceptional circumstances. These may include what have been termed ‘crisis zone’ cases, where the employer acts to protect lives and property. Procedures might also be dispensed with in cases such as a refusal or failure to state a case or absence without leave or explanation. In these circumstances, the employer may make a decision on the merits of the allegation without the employee having stated a case in response.
63 Departures from the guidelines in the Code should be justified. For example, the opportunity to state a case in response to an employer’s allegation of misconduct should ordinarily precede any decision to dismiss. If an employer, after making a decision on the merits without affording the employee the opportunity to state a case, offers an employee the opportunity to state a case afterwards but before someone who was not involved in the first decision, and who is independent, impartial and authorised to make a fresh decision, a departure from the norm may be justified.
64 If a commissioner finds that the procedure was defective, the arbitrator should determine whether the defect was material. The seriousness of the defect should be taken into account when determining compensation for procedural unfairness.
If there is a workplace disciplinary procedure
“65 If there is a workplace disciplinary procedure, its legal status will affect the arbitrator’s approach when assessing the procedural fairness of a dismissal”.
There are three categories:
#1 Contained in a collective agreement.
#2 Contractually binding.
#3 Unilaterally established by the employer.
#1 Collective agreements
“67 When deciding whether a disciplinary procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness in a dismissal case”.
In fn 10 there is reference to Highveld District Council v CCMA [2002] 12 BLLR 1158 (LAC) at paras 15 – I 7. (“The respondent [employee] was confronted with all the evidence against him during the disciplinary hearing and he had ample opportunity to dispute every piece of evidence that was put before the disciplinary committee. … The arbitrator correctly had regard to the procedure actually followed and concluded that it was fair. There is no basis for holding that in doing that he committed a reviewable error”.)
#2 Contractually binding procedures
“69 A departure from the agreed procedure should constitute procedural unfairness. But not every instance of procedural unfairness in these circumstances ought to give rise to an order of compensation. Like collective agreements, an arbitrator should weigh up the materiality of the breach and the prejudice to the employee in determining compensation, if any, for the procedural unfairness”.
#3 Employer imposed procedures
“70 An employer imposed procedure must be tested against the Code and if there is any conflict, the Code takes precedence unless the employer can justify the departure. A procedure that is not legally binding ought not to be strictly interpreted and applied.
Ordinarily, departures from established policies and procedures, or from the Code, should not result in a finding of procedural unfairness unless there is material prejudice to the employee. Subject to the same qualification, if the employer amends or adjusts a policy or procedure to meet a particular exigency or to address circumstances that are not contemplated in the policy or procedure, a finding of procedural unfairness is not warranted”.
F: HOW TO APPROACH REMEDIES
Compensation for procedurally unfair dismissals
“138 An arbitrator may find that a dismissal is procedurally unfair but award no compensation because the procedural irregularity was minor and did not prejudice or inconvenience the employee. When assessing the extent of the procedural irregularity, arbitrators may consider the employer’s conduct prior to, and in the course of, dismissing the employee”.