19 April 2021 by , and Employment Law Alert

An employer’s quest to change the outcome of its own disciplinary hearing

In the case of M v Rhodes University and Another [2021] 3 BLLR 306 (ECG), the High Court had to decide whether the employer, who was dissatisfied with the outcome of a disciplinary hearing handed down by an independent chairperson, could institute internal review proceedings, appoint an internal review body, and motivate that such outcome be set aside and possibly substituted with a different outcome on verdict and a far harsher sanction.

After being found guilty of only one of three charges against him, Mr M (the Applicant), was awarded a final written warning, present a written apology to his employer, Rhodes University (Rhodes) and undergo a counselling process for a 12-month period. One of the charges for which he was not found guilty related to sexual harassment. However, Rhodes considered the outcome of the independent chairperson to be aberrant and constituted a decision no reasonable decision-maker could have reached. Rhodes advocated that the Applicant’s behaviour, which had included serious allegations of sexual harassment, warranted dismissal.

Rhodes instituted the internal review process, in response to which the Applicant instituted an urgent application in the High Court on the basis that such internal review constituted a breach of the terms of his employment contract because the disciplinary code had been incorporated therein and did not make provision for such internal review.

The High Court laid down several reasons why an employer may internally review a decision taken by a disciplinary chairperson even when this is not expressly provided for in the disciplinary code or the employment contract. The High Court found that Rhodes had reserved for itself the right to make policies binding on its employees and included that which provided for the internal review process to meet its obligation to eradicate sexual harassment at the workplace. However, the disciplinary code and the employment contract had listed the Labour Relations Act among other labour law prescripts, as relevant authorities in support of such review. The High Court held that the Applicant’s employment contract “must be interpreted within the context of applicable labour law principles which are based on the fundamental principle of fairness”.

The High Court quoted the case of Van Rensburg v Rustenburg Base Metal Refineries (Pty) Ltd which held that where a chairperson, duly appointed in terms of a disciplinary code was unduly lenient, the employer may review the sanction imposed by the chairperson, if the following was evident –

  1. the facts available to the employer at the time of the disciplinary hearing did not adequately illustrate the gravity of the employee’s conduct;
  2. the outcome, based on the facts before the chairperson, was so shocking that it warrants an inference of bias or bad faith or a failure to apply his or her mind; and
  3. the sanction does not accord with the substance of the disciplinary code itself.

Therefore, the High Court found that Rhodes was able to prove that the factual findings and sanction imposed by the chairperson were so inappropriate that it warranted interference. Furthermore, the High Court found that the disciplinary code and reference to the labour legislation applicable did not restrict an internal review, notwithstanding that the employment contract did not make express provision for it.

Conclusion

It is to be noted that the right to fair labour practices is a constitutional right that is provided to every employee. In the same manner that an employee can challenge an adverse outcome of a disciplinary hearing, so too in deserving circumstances can an employer challenge an unfair or unreasonable outcome or sanction. A key take from this is that disciplinary codes are guidelines aimed at creating and maintaining fair labour practices. With that said, procedural deviations may be condoned in pursuit of fairness and in the interests of justice, as long as the substance thereof is maintained, and the employee and the employer are not unduly prejudiced thereby.

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