Bemawu obo 35 members v SABC (J2239/2015) [2016] ZALCJHB 74 : [2016] 6 BLLR 595 : (2016) ILJ 1394 (LC) (2 March 2016) per Steenkamp J.

The Labour Court refused to interdict a disciplinary process against numerous employees alleged to have defrauded the Medical Aid Scheme on a massive scale.

The SABC faced a conundrum in that workplace efficiency would have been impeded if it had adopted its contractual disciplinary procedure.   It was not feasible to have individual hearings for 100 individual employees along the lines of a criminal justice model.   Steenkamp J thought it was similar to a “formal disciplinary hearing”.   There would be a ‘hearing chaired by an independent and experienced chairperson on the panel of a respected dispute resolution agency.  It envisages a hearing, albeit on paper without hearing oral evidence or argument’.

In other words it satisfies the requirements set out in the Code of Good Practice of the Labour Relations Act and in the well-known case of Avril Elizabeth Home for the Mentally Handicapped v CCMA (JR782/05) [2006] ZALCJHB 19 (13 March 2006) per Van Niekerk J.

Excerpts

[2] Although 35 of the union’s members are cited as the applicants, the SABC intends to take disciplinary action against more than 100 employees.   Given the number of employees involved, it has adopted a disciplinary process that differs to that envisaged by its Disciplinary Code i.e.  that of individual hearings presided over by a panel of three chairpersons with viva voce evidence and the opportunity to cross-examine.

Instead, it has adopted a process where the individual employees are presented with the allegations against them in writing; they can then make written representations; and those representations will be considered by a chairperson from a panel appointed by Tokiso, the independent dispute resolution agency.

That chairperson, taking into account the allegations and representations, will have to make a decision whether or not the individual employee in question has or has not committed the misconduct complained of.   If the employee is found to have committed the misconduct, that employee will be given the opportunity to make further representations with regard to sanction after which the chairperson will make a recommendation on sanction to the SABC.

.  .  .  .  .

[13] Against the background of that clause it seems to me that the process envisaged by the SABC does ensure that discipline will be exercised fairly in accordance with the rules of natural justice, albeit not in the way that the SABC normally conducts its disciplinary procedures.   In these circumstances, where the Corporation has to deal with similar allegations of misconduct against more than 100 employees, it would be unworkable to adopt a process where each employee must be heard individually, call witnesses and present evidence.   The rules of natural justice, and especially the principle of audi alteram partem, will be satisfied, albeit in an attenuated manner in the process that the Corporation has decided to adopt.

.  .  .  .  .

[18] In this case, it would appear to me that,

  • firstly, the process adopted by the SABC will not lead to grave injustice.  The union members will still have an opportunity to be heard.
  • Secondly, and this foreshadows the question of an alternative remedy, justice may be attained by other means, that is the dispute resolution system prescribed by the Labour Relations Act.

In fact, in the case before me, the exceptional circumstances go the other way.

Exceptional circumstances have necessitated the Corporation to adopt a procedure other than the normal procedure envisaged by its Disciplinary Code.  Those circumstances are the number of employees involved and the operational efficiencies of the organisation.

I would therefore have formed the view on the merits that the union has not established a clear right as is required for final relief.