Years ago Van Niekerk AJ (as he then was) outlined what employers were required to prove regarding a fair internal procedure prior to termination of employment.   He stressed the need for ‘dialogue and reflection’ and the application of the principles of natural justice.   He specifically stated that  employers were not required to conduct any form of ‘trial’, either criminal or civil.   In other words employees had a right to be heard but that did not mean that employers were obliged to conduct the ‘hearing’ as a trial.

Employers, particularly small employers, will be pleased to know that more judges and even commissioners are now applying the principles set out in the judgment of Van Niekerk AJ.   There is also an acceptance that managers may chair the ‘hearing’ and that employers need not call witnesses at that stage provided employers provide the alleged facts that need to be explained.

The judgment referred to above is Avril Elizabeth Home for the Mentally Handicapped v CCMA [2006] 9 BLLR 833; (2006) 27 ILJ 1644 (LC).

Hearsay evidence during ‘hearing’

In FAWU obo Kapesi v Premier Foods Ltd (GF8274) [Basson J, 4.05.2010] [2010] JOL 25623; [2010] 9 BLLR 903; (2010) 31 ILJ 1654 (LC) had this to say in para [46]:

“It is important to also stress that, in the present case, the hearsay evidence would have been admitted in the context of a disciplinary hearing.   A disciplinary hearing is not a criminal trial.   It is also not a civil trial.   A disciplinary hearing is an opportunity afforded to the employee to state a case in response to the charges levelled against him her by the employer.

See in this regard Avril Elizabeth Home for the Mentally Handicapped v CCMA where the Labour Court, in great detail explained what the purpose of a disciplinary hearing is.   The court also emphasised that a disciplinary hearing should not be equated to a criminal trial”.

Natural justice [see now  New natural justice: Duty to act fairly]

In Mohammed v Chicken Licken (2010) 31 ILJ 1741 (CCMA) commissioner Van Aarde referred to the Avril Elizabeth Home case with approval [see para 5.3.1]:

“Schedule 8 of the LRA 1995 read with Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC) contains in no uncertain terms the procedural requirements to be met before an employer can dismiss its employees.   These are basic rules of natural justice”.

Manager chairing the ‘hearing’

In Smit v Nashua East London (2010) 31 ILJ 1751 (CCMA) commissioner Bishiwe stated in para [13]:

“The applicant challenges his dismissal as procedurally unfair due to Mr Thomson chairing the disciplinary enquiry.   The applicant expected that a neutral third party would chair the enquiry; however no evi­dence was adduced by the applicant to show that Mr Thomson con­ducted himself in any manner that can be construed as biased or unfair.

A disciplinary enquiry is not a workplace trial.   It is meant to be a platform where an employer gives an accused employee a right to put across his own version and be heard before a decision is taken on any alleged misconduct.

The courts have even gone as far as to say that a disciplinary hearing need not even be held, as long as the employer can show that he had given an employee the right to be heard before taking a decision on the alleged misconduct.

In Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC), the Labour Court emphasized that arbitrators must not apply a test for procedural fairness that is more stringent than that required by the Code of Good Practice: Dismissals.   The code guides employers to adopt a simple procedure in their disciplinary proceedings and not the criminal justice model.

I have assessed the role played by Mr Thomson in this matter and have found that he acquitted himself fairly in his role, first as the superior to whom the matter was reported and thereafter as the presiding officer in the disciplinary hearing”.