12 February 2019 by and Employment Alert

You snooze you lose: Delaying the finalisation of disciplinary action

An inordinate delay in finalising disciplinary action may lead to a dismissal being procedurally unfair. This was the case in the matter before the Constitutional Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and others [2018] ZACC 3.

In August 2009, Ms Stokwe, the then Deputy Chief Education Specialist in the Department of Education, Eastern Cape, awarded a temporary transport services contract to her husband’s unregistered company. Although she reported the temporary awarding of the contract, she did not obtain the approval and consent of the Head of the Department as required. On 22 July 2010, the department brought four counts of misconduct against her. Her disciplinary hearing was initially scheduled for 12 August 2010, but only held the following year on 30 March 2011. She was found guilty of two of the allegations and dismissed on 22 June 2011.

Ms Stokwe appealed against the dismissal. In terms of the Employment of Educators Act, a sanction may not be implemented pending the outcome of an appeal. Accordingly, she was retained and continued working for the Department. On several occasions she and her attorneys enquired about the outcome of the appeal, even recording that in the absence of a response from the department they were of the view that it had abandoned the disciplinary action. They received no quick response from the department. Finally, on 14 February 2014, Ms Stokwe was informed that her appeal had been dismissed.

Unhappy with that she then challenged her dismissal, before the Education Labour Relations Council. She contended firstly, that the Department has abandoned the disciplinary process after her appeal and secondly, that the dismissal was substantively and procedurally unfair. The arbitrator found that her conduct seriously and negatively impacted upon the trust relationship and that the dismissal was substantively fair. Inter alia, she had admitted that her decision to appoint her spouse was to alleviate his dire financial situation. The arbitrator found that the abandonment argument had to fail as the Act did not allow for the implementation of a sanction pending an appeal.

Ms Sokwe then applied for a review of the arbitrator’s decision to the Labour Court. She contended that the arbitrator misunderstood the employer’s policy and overlooked the delay in finalising the disciplinary process. The Labour Court dismissed her application. Her subsequent applications for leave to appeal were denied by the Labour Court and Labour Appeal Court.

Undaunted, Ms Sokwe appealed to the Constitutional Court. The Constitutional Court agreed that the arbitrator’s finding that her dismissal was substantively fair was beyond criticism. The finding fell within the “band of reasonableness” at which a reasonable decision-maker could arrive.

The Constitutional Court did, however, find that this was not the case with the procedural fairness of the dismissal. It held that the principle that discipline should be prompt and fair and that disciplinary processes should be concluded in the shortest possible timeframe, applied to both the Labour Relations Act and the Employment of Educators Act. The court held that the question of whether there was an unacceptable delay should be considered on a case-by-case basis. The court in assessing the reasonableness of the delay considered the following factors:

  • The delay has to be unreasonable. The longer the delay, the more likely it is that it would be unreasonable.
  • There must be an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
  • Did the employee has taken steps to assert his or her right to a speedy process?
  • Did the delay cause material prejudice to the employee? Establishing this includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.
  • The nature of the alleged offence must be considered. The nature of the offence could, in itself, justify a longer period of investigation, or in collating and preparing proper evidence, thus causing a delay that is understandable.
  • All these considerations must be applied holistically.

The court found that the Department had no explanation for the delay and that Ms Stokwe’s dismissal was procedurally unfair. As a measure of its disapproval of the Department’s conduct the court made an adverse costs order against it. It remitted the matter back to the Labour Court, as a specialist court to decide on the appropriate remedy, as a matter of priority.

This case serves to reiterate a core principle of our labour law: employment disputes should be conducted and concluded in a speedy and efficient manner.

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