Risk management: Reversing disciplinary decision

Disciplinary codes and procedures need to be carefully drafted to ensure that senior management has the final say when enforcing standards of behaviour and performance. The employee made an unacceptable racist remark. He conceded he was wrong and at the conclusion of the disciplinary process he was not dismissed but warned. Senior management intervened and summarily dismissed him. The arbiter held the employer could not do so and upheld the warning. On review Pillay J in the Labour Court upheld the award as not being unreasonable. The LAC discussed various related issues but eventually upheld the judgment of Pillay J. The LAC applied an earlier LAC judgment to the effect that employers could not treat the outcomes of disciplinary enquiries as mere ‘recommendations’. So the LAC disallowed the appeal and upheld the review judgment of D Pillay J in the Labour Court.

South African Revenue Service v CCMA (Kruger) (JA06/11) [2015] ZALAC 52 (8 December 2015) per Sutherland JA [Davis JA and Mngqibisa-Thusi AJA concurring]

Comment:

This judgment reinforces the notion that, except in instances of clear gross misconduct, employers should adopt the statutory procedure appropriate for dealing with operational requirements and risk management. It is even suggested in the LAC judgment that it might still be appropriate for SARS to adopt that approach. A joint consensus-seeking procedure eliminates all the technical arguments that are discussed in the LAC judgment. Management are allowed to dismiss employees for a valid and fair reason. They are not obliged to follow any particular prior procedure, provided employees have a right to be heard and respond to any averments. In this case there was a valid reason to dismiss. But in considering fairness it was necessary to have regard to all the surrounding circumstances. Avoid the expression ‘mitigating factors’ as that suggests some form of criminal procedure. So the issue is whether the conduct would make it intolerable to remain employed. In other words has the employee destroyed, or seriously damaged, the necessary relationship of trust and confidence. The LAC correctly distanced itself from a previous LAC judgment of Zondo JP, as he was, to the effect that a racist remark should automatically result in dismissal. As explained by Sutherland JA it is necessary to separate validity and fairness when dealing with the reason. But issue has to be taken with Sutherland JA in para [33] where it is suggested that an ‘unlawful act will always be, within the Labour jurisprudence paradigm, both substantively and procedurally unfair’. Hopefully the Constitutional Court will have more to say on this issue in the near future.

LAC summary:

The question posed on appeal was whether an employer who has delegated final disciplinary discretion to a person qua chair of a disciplinary enquiry can substitute the chair’s decision with a different or harsher sanction

Held – Absent a power to regard the decision of a chair as a mere recommendation an employer cannot do so and any purported decision to substitute a sanction is invalid

Held – An employer’s invalid substitution of a sanction is not merely a procedural irregularity – because of the invalidity of such a decision the decision is also a substantively unfair act – the distinction between substantive fairness and procedural unfairness is a forensic tool of analysis rather than two discrete concepts

Held – The fundamental premise of our labour relations jurisprudence is that fairness shall prevail – a general rule that employers are not at large to interfere with the outcomes of disciplinary hearing outcomes with which they disagree is an appropriate and necessary safeguard for workers subjected to discipline – the rule is worthy of preservation

The LAC decision in SARS v CCMA (Chatrooghoon) explained and applied

The LC decision in SARS v CCMA (Botha) explained and criticised

Held – Racist abuse – seriousness – despite the gravity thereof, a fair enquiry including an enquiry into whether any mitigating circumstances might exist is necessary – the imposition of a sanction of dismissal for racist conduct cannot as a matter of course follow – despite the likelihood that cogent mitigation could exist being rare, without such an enquiry, the disciplinary enquiry would be a sham –

The LAC decision in Crown Chickens v Kapp at [39] explained

On appeal, the decision by the commissioner of SARS to substitute a sanction of dismissal for the sanction of a suspension imposed by the disciplinary enquiry chair found to be invalid – the decision of labour court dismissing a review application against an arbitrators award on the grounds that the award satisfied the test in Sidumo v Rustenurg Platinum Mines upheld – Appeal dismissed

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GilesFiles on February 7, 2016 at 6:41 pm

Report:
[2016] 3 BLLR 297; (2016) 37 ILJ 655 (LAC)
BLLR headnote:

Dismissal – Misconduct – Substantive fairness – Difference between substantive and procedural unfairness – Distinction mere forensic tool, not principle of law creating two different concepts – Unlawful dismissal will always be substantively and procedurally unfair, whereas a lawful dismissal may be both, or sometimes one or the other – Defective and unfair procedure may sometimes taint inquiry and prevent fair decision on substantive issue.

GilesFiles on August 10, 2016 at 4:12 pm

SARS v CCMA CCT 19/16 Date of hearing: 11 August 2016

MEDIA SUMMARY

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday 11 August 2016 at 10h00, the Constitutional Court will hear an application for leave to appeal against the judgment and order of the Labour Appeal Court.

Mr Kruger, an employee of South African Revenue Services (SARS) called his team leader Mr Mboweni a kaffir on two occasions. This was confirmed by one of the employees at SARS. A disciplinary hearing was convened and the charges preferred against him were gross insubordination and the use of derogatory and abusive language against Mr Mboweni. Mr Kruger pleaded guilty. The chairperson found him guilty as charged and imposed a sanction of a final written warning valid for 6 months, suspension without pay for 10 days and referred him for counselling. Dissatisfied with that outcome, the Commissioner of SARS (Commissioner) altered the sanction to a dismissal without a hearing.

Mr Kruger challenged the dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), on the basis that the dismissal was substantively and procedurally unfair. He further [argued] that the Commissioner did not have the powers to [substitute?] the sanction of the chairperson with dismissal. SARS argued that because it is entrusted with the responsibility to collect tax from the public, the offence was very serious and it would raise eyebrows if he were to receive a mere final written warning. The CCMA decided in favour of Mr Kruger and ordered SARS to reinstate him subject to the above conditions. Aggrieved by that decision, SARS approached the Labour Court.

In the Labour Court, SARS argued that reinstatement was inappropriate because it could not be expected to retain an employee who had lost their trust and confidence because of his insubordinate racist, derogatory and abusive conduct.

Mr Kruger argued that SARS did not have any form of discretion to deviate from the chairperson’s sanction. Also, that the award by the CCMA was reasonable as SARS acted ultra vires (beyond the powers) since there was no justification for the deviation from its own policies and procedures, including the collective agreement. The Labour Court decided in favour of Mr Kruger. Aggrieved by that outcome, SARS appealed unsuccessfully to the Labour Appeal Court.

In this Court, SARS submits that this application raises a constitutional issue and that it is in the interests of justice to grant leave because termination of an employment contract for racism in the public sector is an important constitutional matter. It also says that there are reasonable prospects of success on appeal.

Mr Kruger argues that the appeal should be dismissed because:
(i) SARS had waived its right to appeal;
(ii) the application for appeal does not raise a constitutional issue or other connected matter and
(iii) it would not be in the interests of justice to grant leave to appeal as there are no prospects of success.

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Risk management: Reversing disciplinary decision

Comment:

LAC summary:

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