CCMA AND DRC HEARINGS EMPLOYERS

INTERESTING ISSUES ADDRESSED IN CURRENT CCMA AND DRC HEARINGS EMPLOYERS MUST TAKE NOTE OF

1. TYPES OF SUSPENSION

1. Preventative paid suspension,

Where disciplinary charges are being investigated against an employee, and the employer wants to suspend the employee for a limited period – maximum 30 days, pending the outcome of the disciplinary enquiry. The employer must continue remunerating the employee, if remuneration were to cease, this would constitute a breach of contract.

Substantive fairness – It refers to the reason for the suspension. This could be where the seriousness of the misconduct creates rumours and suspicion, necessitating a suspension in order for work to carry on smoothly or where a reason exists to fear that the employee may interfere with the investigation or the seniority of the employee.

Procedural fairness – the employee must be given a formal disciplinary hearing within a specified time, not longer than 30 days, after the suspension. The employer must inform him/her of the suspension, the reason and conditions of the suspension. The employer is not required to give the details of the charges because it is not deemed to be a disciplinary process.

The South African Constitutional Court had the opportunity to grapple with precautionary suspension in the recent matter of Allan Long v South African Breweries (Pty) Limited & Others. It held that there is no requirement for an employee to be provided with the opportunity to make representations or performing a pre-hearing before being placed on precautionary suspension.

The Constitutional Court confirmed that a suspension pending an investigation and possible disciplinary action is a precautionary measure and does not constitute disciplinary action, and as such, the requirements in terms of the Labour Relations Act, 1995 relating to fair disciplinary action do not apply. It held that there is no requirement for an employee to be provided with the opportunity to make representations before being placed on precautionary suspension. In the case of a precautionary suspension, there is no requirement for an employee to be given an opportunity to make representations before the employer decides to place that employee on suspension. By endorsing the Labour Court’s decision and reasoning, the Constitutional Court has accepted that it will not be unfair to fail to provide an employee with an opportunity to make representations prior to being placed on precautionary suspension.

In case law the Labour Court held that it is not necessary for the employer, at the stage of implementing a precautionary paid suspension, to substantiate the allegations of misconduct – it is sufficient for the employer to hold a reasonable belief that the misconduct took place. Because precautionary suspension does not constitute disciplinary action and the requirements of the LRA do not apply, relating to disciplinary action, it is viewed that it is not a requirement to state the details of the charges in the Notice of Precautionary Paid Suspension.

There must be a fair reason for the suspension, it should not constitute disciplinary action, the requirements of the LRA do not apply relating to disciplinary action, it must be fully paid, must take place within a reasonable time, maximum of 30 days are presumed as reasonable, the company must not punish the employee, the suspension must be directly linked to the pending investigation or process, the company does not have to substantiate the allegations of misconduct. The audi alteram partem principle must be observed.

           2) Punitive Unpaid Suspension, where suspension as an alternative to dismissal, is imposed as a disciplinary measure short of dismissal for a minimum period of 7 days and maximum 14 days, only after a disciplinary hearing has been held.

Substantive fairness – It refers to the seriousness of the misconduct and is viewed as an alternative to dismissal only.

Procedural fairness – There must be a formal disciplinary hearing and must be the outcome of the hearing as Punitive Unpaid Suspension as an Alternative to Dismissal.

The view was held that Unpaid Punitive Suspension as an alternative to dismissal, fell within the scope of an unfair labour practice, but this view was rejected by the Labour Court. Both the CCMA and DRC follow the Labour Court’s view that, unpaid punitive suspension, is not an unfair labour practice.

Both the CCMA and DRC assumes jurisdiction over both punitive and preventative suspension. If either of the suspensions is grossly unfair, the employee may seek compensation and or reinstatement as a remedy.

2. INCONSISTENCY CLAIM

If an employee during a disciplinary hearing in the CCMA or DRC hearing alleges that the employer has acted inconsistently by, e.g. not charging another employee for a similar transgression in the past, the chairperson or opposing party should ask the employee for details of the case in point.

Note that a mere allegation of inconsistency will/should not suffice: This allegation only deals with alleged historical inconsistency.

• The employee must at least provide the name of the person he or she uses as a referent.
• The employee should explain why he or she thinks the cases are comparable. If, on the face of it, the new and old cases are comparable,
• The claim of inconsistency, with prove, must be investigated and cannot be accepted on face value only by the Commissioner or Chairperson.
• The employee must provide verbal or documentary evidence to the contrary (e.g. the minutes of the previous hearing).
• If the cases are not comparable, or there are objective reasons for distinguishing between them, the chairperson may dismiss the plea of inconsistency.
• Objective reasons could include the fact that the person with whom the employee compares himself admitted his misconduct, whereas
• The employee lied about his (as happened in the Eskom case); or
• That the allegations were different (in Eskom the employee was found guilty of a more serious allegation than the one committed by the person she referred to).

Inconsistency not necessarily unfair

But does this mean that if there are no objective grounds for distinguishing between the two situations, the employee automatically receives the benefit of the doubt? Not necessarily. Suppose, for example, that the allegations are very serious and that the chairperson who conducted the first hearing made a mistake in good faith in, e.g. issuing a final written warning for something that would ordinarily justify dismissal in terms of the employer’s policy. In Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2017) 

The Labour Appeal Court made it clear that inconsistency is not a rule unto itself, but merely one factor to be taken into account in the determination of an appropriate course of action. It is by no means decisive of the outcome on the determination of the fairness of the decision to dismiss. Therefore, if the chairperson finds that there was inconsistency in a particular case, that in itself does not mean the employee should be found not guilty, or be given the same sanction as the person the employee compares herself to. In other words, the mere fact that an employer may have acted inconsistently does not necessarily mean that there was unfair treatment. Inconsistent treatment may be an indication of unfairness, but this is not always the case.

It sometimes happens that during a hearing an employee alleging inconsistency refers to alleged misconduct by another employee of which the employer has no knowledge. While the employer ought to investigate this incident as best it can, the fact that no action was taken against the person referred to will not amount to inconsistency, if the employer had no knowledge of it.

3. LEGITIMATE EXPECTATION

In public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, understood by those to whom it is given, that a particular course of action will be taken or a particular procedure will be followed.

The doctrine of legitimate expectation is that, if a decision maker, either through the application of a regular practice or through an express promise, leads those affected legitimately to expect that he or she will decide in a particular way then that expectation is protected and the decision maker cannot ignore it when making the decision. There was no express promise. Reinstatement is not feasible and that it would cause a disproportionate level of disruption and financial burden for the employer and it was based on a false premise created by the Applicant and not by the Respondent.

There was no clear, unambiguous and unqualified assurance or express promise to be reinstated

4.  SELECTIVE RE-EMPLOYMENT

In terms of s186(1)(d) of the Labour Relations Act, where an employer, who has dismissed a number of employees for the same or similar reasons, offers re-employment to one or more of the previously dismissed employees but refuses to re-employ another, such refusal shall constitute a dismissal. This scenario is referred to as selective re-employment. Like all other forms of dismissal, this type of dismissal must also be substantively and procedurally fair, failing which, the employee(s) in question may be awarded re-instatement.

Three elements are essential to qualify for Selective Re-employment,

1. There must be a dismissal,
2. The employees concerned must have been dismissed for the same or similar reasons,
3. The employer must subsequently have offered to re-employ one or more of the previously dismissed employees, while refusing to re-employ one or more of the others.

In the argument of selective re-instatement by the Applicant, the employment relationship continued and there was no dismissal and selective employment cannot be claimed

5. FULL AND FINAL SETTLEMENT

1. A full and final settlement agreement, is a legally binding contract and all the terms are deemed valid once signed by the relevant parties. The court must accept the terms on which the parties have settled their dispute. The court’s obligation is to construe and enforce contracts as made, and not to make them for the parties.
2. With the full and final settlement agreement there are however obligations on the employer  that the employee must only sign the settlement in the presence of witnesses and if the Employee feels that:

2.1 S/he was not coerced or forced to sign the agreement and

2.2 Sign the agreement out of his/her own free will

2. That he contents of the settlement agreement were explained to the Applicant and the parties 2.4. That there were no elements of duress visible.
3. The content and wording of this agreement was handled carefully and deliberately to ensure that the true intention of the parties is duly recorded in a manner that is not ambiguous or capable of unintended consequences
4. In signing the agreement the Applicant agreed that all the conditions have been settled. This also involved the withdrawal of this matter at the CCMA or DRC on the basis of settlement.
5. If the Applicant act against the agreement s/he is in breach of the settlement agreement and now risk being forced to paying the legal costs of the party opposing the referral