In a very recent Labour Court case National Bioinformatics Network Trust v Jacobs (14 April 2009) Justice André Van Nierkerk refused to halt CCMA arbitration proceedings after the commissioner declined to allow the employer to be legally represented.   The judge made some pertinent and important remarks about the manner in which the employer had conducted the internal investigation and the reluctance of practitioners to follow the simple procedure envisaged in the Labour Relations Act of 1995.

“The applicant dismissed the first respondent … after a protracted disciplinary enquiry into allegations of misconduct.   The enquiry was the antithesis of what is contemplated by the Code of Good Practice: Dismissal, Schedule 8 to the Labour Relations Act.   The enquiry was chaired by a senior counsel, and both the applicant and … were represented by legal practitioners.   The enquiry was conducted over a period of months, resulting in a transcript (excluding documentary evidence) exceeding 5 000 pages, and a finding comprising some 450 pages.   The applicant referred an unfair dismissal dispute to the CCMA on date.   After an unsuccessful conciliation, the dispute was referred to arbitration”.

“The applicant chose to ignore the informal workplace procedures prescribed by the Code of Good Practice and to conduct a disciplinary enquiry, at great expense to the taxpayer no doubt, in a form that would make any criminal court proud.   I have previously had occasion to comment on the profitable cottage industry that has developed from the application of unnecessarily complex workplace disciplinary procedures, and how inimical the actions of some practitioners, consultants, so-called trade unions and employer organisations and the various other carpetbaggers who populate this industry are in relation to the objectives underlying the LRA” [footnotes omitted].

Avril Elizabeth Home v CCMA (Mvumvu) (GF 6031) [Van Niekerk [A] AJ, 14.03.2006] draws specific attention to the 1995 codification of the earlier jurisprudence, more particularly the Code of Good Practice in Schedule 8 to the LRA.   A formal inquiry is not required and is 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, and developed rules and procedures, including rules relating to bias and any apprehension of bias, that were appropriate in that context“.

Reference is also made to the relevant ILO Convention and an opinion of the Committee of Experts in 1995 to the effect that the real purpose is to allow workers to be heard and ensure that any decision to terminate employment is preceded by ‘dialogue and reflection’ between the parties.