Does the right to be heard mean there has to be a formal disciplinary hearing?  Ironically Steenkamp J did not think so in Bemawu obo 35 members v SABC (J2239/2015) [2016] ZALCJHB 74; [2016] 6 BLLR 595 (LC) (2 March 2016).  But it must satisfy the requirements in the Code of Good Practice.  See also Van Niekerk J in Avril Elizabeth Home for the Mentally Handicapped v CCMA (JR782/05) [2006] ZALCJHB 19; [2006] 9 BLLR 833 (LC) 13 March 2006).  In Afrikaans the word ‘aanhoor’ is better than ‘verhoor’.

In Democratic Alliance v SABC; Democratic Alliance v Motsoeneng (3104/2016; 18107/16) [2016] ZAWCHC 188 (12 December 2016) per Rogers J with Le Grange J concurring, it seems that the legal representatives of Mr Motsoeneng willingly and gladly agreed to the formal disciplinary process, whilst being suspended on full pay, for a number of reasons:

  • an impartial chairperson;
  • an outside ‘prosecutor’ to lead the evidence;
  • written averments in the form of criminal-type ‘charges’;
  • formal proceedings with the SABC having to adduce oral and other evidence;
  • cross-examination of witnesses;
  • a complete record of the proceedings;
  • referral of an unfair dismissal to the CCMA;
  • engagement in a conciliation process;
  • referral of dispute to the CCMA for a fresh formal hearing;
  • require the SABC to adduce all its evidence all over again;
  • cross-examination of all the witnesses, including about what they had previously stated;
  • review any adverse award in the labour court;
  • right to appeal to the labour appeal court subject to leave being granted;
  • if leave is refused, the right to petition the LAC for an appeal;
  • if appealed the right to await that outcome and maybe even go to the constitutional court.

Earlier SABC matter

Steenkamp J refused to interdict a disciplinary process against numerous employees of the SABC 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’.

See also:

Possible misunderstanding of principles of labour law on dismissal

Unfortunately it seems to have been assumed by the full bench in the latest high court judgment that labour law requires a formal disciplinary ‘hearing’ with witnesses and cross-examination.  But it is suggested that this is not a correct statement of the legal position.  Labour law only requires a proper investigation into any breach of standards of behaviour or performance.  The initial investigation tries to establish the facts.  These are then presented to the employee concerned in the form of allegations or averments without mentioning any witness names.  Documentary evidence can be attached there necessary.

Employees have an enforceable right to respond to those averments.  The only obligation imposed on employers is to allow employees to exercise that right.  It can be waived or forfeited by employees at their own peril.  See Semenya v CCMA [2006] 6 BLLR 521 (LAC) per Zondo JP, as he then was, at para [41].

So there is by statute no requirement to conduct a formal ‘trial’ with witnesses and an impartial chairperson and even an imitator.  The LRA does not refer to the word ‘hearing’ anywhere but only the right to respond to averments.  The LRA does allow employees who believe they have been unfairly dismissed to refer to dispute within a fixed period for resolution by conciliation and failing that arbitration or adjudication.  Those proceedings amount to the actual ‘hearing’ where evidence must be adduced and an award or judgment delivered by a neutral person.  There are also statutory limits imposed on the remedies.  By agreement the record of any internal investigation can be introduced at the formal hearing but usually the witnesses must give evidence at the formal hearing.  The danger for employers is that their witnesses at the formal hearing will be cross-examined on what they said in any earlier proceedings.

Democratic Alliance v SABC; Democratic Alliance v Motsoeneng (3104/2016; 18107/16) [2016] ZAWCHC 188 (12 December 2016) per Rogers J with Le Grange J concurring.

Excerpts without footnotes

[108]    I think there is good reason why the Public Protector did not decree that Motsoeneng be dismissed.  Although Motsoeneng was interviewed by the Public Protector and afforded the opportunity to make submissions on her provisional report, he did not have the opportunity to face and question his accusers.  The procedure by which the Public Protector made her findings was not such as an employee would be entitled to expect where disciplinary charges are brought against him.  Our labour law requires that before a disciplinary sanction may be imposed on an employee there must be a fair and adequate procedure to establish the alleged misconduct.  This includes the right to be present when evidence is led in support of the charges, to examine any documents relied upon, to cross-examine witnesses and to lead evidence.  Unsurprisingly these rights are reflected in the SABC’s disciplinary code.

[109]    In my view it would have been unfair to Motsoeneng and a violation of his labour rights for the Public Protector to take remedial action which required him to be bound by her factual findings in disciplinary proceedings.  A report with such an effect might well be vulnerable to review.  One should not readily ascribe such an intention to the Public Protector.  The fact that the required disciplinary proceedings would involve an investigation of the merits in which Motsoeneng might be exonerated seems to have been taken for granted by Schippers J (para 106), Davis J (para 53) and the SCA (para 54).

. . . . .

[111]    Mr du Toit said that Mr Labuschagne’s argument represented a significant change from the position adopted by the Public Protector in her affidavits.  I accept that Mr du Toit and other counsel might have gained the impression that her stance was that her factual findings were binding for all purposes, particularly if her affidavits were read through the prism of the DA’s founding papers.  However, having re-read the Public Protector’s affidavits, I am satisfied that she did not say, expressly or by necessary implication, that Motsoeneng and the disciplinary chairperson were bound by her factual findings or that the disciplinary proceedings were to constitute a sanction-only hearing.  She regarded the December 2015 disciplinary proceedings as flawed, not because the merits of the charges were investigated, but because the process was conducted in bad faith.  The SABC, she said, had ‘sabotaged’ its own disciplinary process.  The SABC’s counsel in their heads of argument referred to her statement that her remedial action ‘contemplated a fair and lawful disciplinary hearing’.

[112]    It was suggested by Mr Katz that the question whether the disciplinary proceedings were to be a sanction-only affair might best be left for decision in the PP application.  I do not see why that should be done.  The DA’s contention that the Public Protector’s remedial action contemplated a sanction-only hearing is one of the DA’s attacks on the December 2015 disciplinary process.  If Mr Edeling’s disciplinary judgment is set aside and the SABC is ordered to institute fresh disciplinary proceedings, the parties must know what the ambit of the new disciplinary proceedings is.  Para 6 of the notice of motion in the DC application expressly seeks a direction that the SABC commence disciplinary proceedings.

. . . . .

Disciplinary proceedings a charade

[126]    The DA impugns the disciplinary process before Mr Edeling on the basis that they were a charade.  In support of this general complaint, the DA’s founding papers deal at some length with the following matters: (i) that from the outset the charges put to Motsoeneng did not include all the matters identified in the Public Protector’s report; (ii) that by the time of the disciplinary hearing before Mr Edeling there were only three charges; (iii) that Mr Phalane was required to conduct the prosecution on extremely short notice; (iv) that a postponement was refused; (vi) that a number of persons who could have given relevant evidence and whose identities appeared clearly from the Public Protector’s report were not called to testify (para 94 of the founding affidavit identifies 11 such people including Swanepoel, Botes and various persons allegedly dismissed at Motsoeneng’s instance).

. . . . . .

[138]    The SABC submitted that ‘for reasons of logic and justice’ the new disciplinary hearing should await the outcome of the PP application.  I disagree.  The SABC has already failed in a bid to have the DC application stayed.  Furthermore we have concluded that the new disciplinary enquiry is not a sanction-only process.  This disposes of the main ground of review in the PP application, at the same time removing the one potential uncertainty which might have justified a deferral of the new disciplinary enquiry.  There is no question of the SABC or Motsoeneng suffering irreparable harm if the new disciplinary enquiry takes place before a final determination of the PP application.  If Motsoeneng were cleared pursuant to a new credible process, that would be to his advantage.  If he were convicted, that would be because the charges were established by the evidence.  This would show that the disciplinary proceedings were justified, regardless of the rights or wrongs of the Public Protector’s report.

. . . . .

[162]    It is also important to distinguish between the legal relationship between the public body and its employee on the one hand and the relationship of the public body to third parties in respect of that contract of employment.  Chirwa was a case arising between the public body and its employee.  The court had to grapple with the question whether the Labour Relations Act, by giving effect to the Constitution’s guarantee of fair labour practices, precluded the characterisation of the dismissal as ‘administrative action’ and limited the employee to her remedies under the Labour Relations Act.  Different questions arise where a third party complains that the conclusion of an employment contract by a public body constitutes an act of unlawful maladministration.  The public body and the appointed employee may be perfectly happy with the contract but this should not render it immune from examination at the suit of a third party.  Nobody in the present case has disputed the DA’s locus standi to do so.