9 November 2020 by and Employment Law Alert

Be wary of the chaos – procedural fairness in the face of a distractive employee(s)

To what extent is an employer permitted to abort disciplinary processes and take a decision to dismiss employees due to such employees and their Trade Unions frustrating the disciplinary proceedings? This was the question for determination by the Labour Court (LC) in its recent judgment in South African Custodial Management (Pty) Ltd & Another v Union for Police, Security and Corrections Organisation (UPSCO) & Others.

In this matter, 16 of approximately 150 employees who participated in an unprotected strike were dismissed for engaging in unlawful conduct during strike action. These employees were also trade union leaders. The demand put forward by the striking employees was that they wanted the employers to increase their pension fund contributions by 16%.

At the three-month-long disciplinary process that ensued, the employees employed every trick in the book to frustrate the progress of that process and, ultimately, caused the independent disciplinary chairperson (a Practicing Advocate) to decide to recuse himself. Thereafter, the Employers took a decision to dismiss the Employees as opposed to rescheduling the disciplinary process before a different disciplinary chairperson.

The matter was then referred to the Commission for Conciliation, Mediation and Arbitration (the CCMA) where, considering the nature of the referral (an automatically unfair dismissal dispute in terms of section 187(1) of the Labour Relation Act 66 of 1995 (the LRA), and the complexity of the matter, the Director of the CCMA directed, in terms of section 191(6) of the LRA, that the matter be referred to the LC for adjudication.

Before the LC, the issue for determination was whether the dismissal was procedurally fair.

In deciding the above issue, the LC Judge Graham Moshoana reaffirmed the legal principle that where Employees are offered the opportunity to state their case but choose to frustrate the disciplinary process leading to a premature decision to dismiss them, the requirements of the audi alteram partem principle will have been met. Accordingly, and taking into account the clear evidence of the Employees frustrating and deliberately delaying the disciplinary process in this case, the LC concluded that the dismissal was indeed procedurally fair. The court accepted that, on the facts of this case, it was not necessary for the Employers to reconvene the disciplinary process before another disciplinary chairperson as the Employees had been given the opportunity to be heard and had spurned it through their distractive conduct and delaying tactics (that is, the Stalingrad Approach that they adopted).

This judgment reaffirms the important legal principle that employers are not to be held to ransom at the altar of procedural fairness and are merely required, in terms of item 4 of the Code of Good Practice: Dismissal contained in the LRA, to give Employees an opportunity to be heard. If it objectively appears that an employee is intent on abusing the opportunity or is engaged in disingenuous endeavours with the intention to systematically undermine and render the disciplinary process dysfunctional, the employer would, under the circumstances, be justified in dismissing the said employee without proceeding further with the disciplinary process.

Interestingly, on a subsidiary point, the LC went on to affirm that the LRA, purposively interpreted, places an obligation on the shoulders of trade union leaders to promote order and to ensure the effective resolution of disputes within the workplace during strike action.

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