Num v CCMA (Sedibeng Diamond Mine) (C 545/09) [2010] ZALC 152; (2011) 32 ILJ 956 (LC) (22 October 2010)

It is indeed pleasing that apart from Justice Van Niekerk there is another judge of the Labour Court who supports the true interpretation of the Labour Relations Act 66 of 1995 and the use of appropriate language with regard to employment law and procedural fairness. In Afrikaans one speaks of ‘aanhoor’ and not ‘verhoor’. The above extract is taken from a footnote of the judgment of the late Justice Anton Steenkamp in the Labour Court decision.

“Once again, I use the language as contained in the disciplinary code.  I do not associate myself with the unnecessary criminalisation of misconduct in the workplace by using the language of “charges”, “offences” and findings of “guilt” or otherwise”.

Some time back, on 6 December 2005, in SABC Ltd v Grogan NO [2006] 2 BLLR 207 ; (2006) ILJ 1519 (LC), when only an acting judge, Steenkamp AJ stated the following, again in a footnote:

“Although much criticism has been levelled at employers and at this Court for using language derived from criminal law when dealing with disciplinary infractions, such as the use of a “charge sheet” and findings of “guilty” or “not guilty”, I will use those terms, which constitute a convenient form of shorthand, as they have been used in the arbitration forming the subject matter of this application for review”.

It seems that the only other judge of either the Labour Court, or for that matter the Labour Appeal Court or the Supreme Court of Appeal or the Constitutional Court, who has spoken out in no uncertain terms is André van Niekerk in Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833; (2006) 27 ILJ 1644 (LC)

These are some extracts from his landmark judgment given in March 2006 when he was only an acting Judge in the Labour Court.   Headings and emphasis has been added and footnotes have been omitted.

LRA of 1995 codified earlier jurisprudence

“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(“the Code”)”.

Code of Good Practice : Dismissal – item 4

“Item 4 of the Code provides:

‘(4)       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’.”

Investigation & opportunity to be heard concerning allegations

“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”.

Significant & fundamental departure from ‘criminal justice’ model

“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 Labour Relations Act 28 of 1956.   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”.

LRA of 1995 does not replicate the ‘criminal justice’ model

“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”.

Replication of ‘criminal justice’ model would result in duplication of 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”.

Clear message in Explanatory Memorandum

“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’.”

No place for formal disciplinary procedures like criminal trial

“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”.

ILO Convention 158 of 1982 supports the ‘new’ approach

“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 (“ILO”) Convention 158 on the Termination of Employment (“the Convention”) 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”.

Constitutional right to fair labour practices

“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 95 (CC)2 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)”.

Hearing means ‘right to be heard’ – not a trial (aanhoor not verhoor)

“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’.”

Interpretation by ILO’s Committee of Experts

“In its interpretation of this article, the ILO’s Committee of Experts 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’.”

Preceding opportunity for ‘dialogue and reflection’ by employer

“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))”.

Right of recourse to CCMA or Bargaining Council – no internal appeal

“The Convention goes on to require what it terms a right of appeal.   This is not the right of appeal to a higher level of management that the criminal justice model requires, it is a right of recourse to an independent tribunal when the substantive merits of a decision to dismiss are challenged.   This requirement is of course met by these provisions of the LRA that require the arbitration or adjudication of disputed dismissals.   Neither the Act nor the Code obliges an employer to provide any workplace right of appeal against the decision to dismiss”.

New standard must be applied by CCMA – LRA s 203

“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”.

Employers may be bound by collective agreement or contract

“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, Department 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.   It is also possible that the application of administrative law to employment issues may require a greater degree of formality.   There are conflicting judgments dealing with this issue, but because this matter arises in the private sector, I need not consider them”.

Only ‘criminal justice’ model applies rule against bias

“In the present matter, there was no legal basis for the application of the rule against bias that the commissioner applied.   In the formulation and application of a rule against bias, the commissioner clearly applied the criminal justice model of procedural fairness, and the standards associated with it”.