From hearing to rehearing: Legal boundaries of revisiting workplace sanctions

1.
Disciplinary enquiries must be guided by the principle of fairness. The parties must be given an opportunity to state their respective cases. Normally, the employer to ensure that fairness is observed and maintained, appoints an independent and impartial chairperson to preside over the disciplinary enquiry.

2.
Employees who are not satisfied with the outcome of a disciplinary hearing may challenge such an outcome through an appeal process provided in the disciplinary code of the employer or to the CCMA and the Labour Court.

3.
As a starting point of our case law review regarding the subject matter at hand, it is important to note the Labour Appeal Court decision in Branford vs Metrorail Services (Durban) 2004 (3) BLLR (LAC). The Labour Appeal Court held that 

“in the labour context the yardstick is fairness. Therefore, fairness would dictate whether an employer could substitute a decision of the chairperson but then only in exceptional circumstances.”

4.
In Rustenburg Base Metal Refineres (Pty) Ltd v Solidarity and Others (JR 2158/07) [2008] ZALC 120; [2008] 12 BLLR 1223 (LC); (2009) 30 ILJ 378 (LC) (8 September 2008) (“Rustenburg Base Metal Refineres”), the Labour court 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.” The Labour Court went further and provided circumstances under which the employer may review the outcome and substitute such an outcome:

• the facts available to the employer at the time of the disciplinary hearing did not adequately illustrate the gravity of the employee’s conduct;
• 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
•  the sanction does not accord with the substance of the disciplinary code itself.

5.
This was reaffirmed in Samson v CCMA (2010) 31 ILJ 170 (LC) where the Labour Court found that:

“An employer is entitled to, when it is fair to do, in exceptional circumstances revisit a penalty and substitute it with a more severe sanction.”

6.
In South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC) (8 November 2016) (“SARS”) the Labour Appeal Court held that the employee’s dismissal was unfair because there was a collective agreement in place that gave the chairperson final decision-making powers. Despite this, the Constitutional Court held that re-instatement could not be granted due to the seriousness of the employee’s misconduct and as a result, granted the employee compensation.

7.
In National Union of Mineworkers v Arcelormittal South Africa Limited and Others (JR 802/18) [2020] ZALCJHB 167 (“Arcelormittal”) the Labour Court considered the issue, went further than the SARS case and held that:

• if the employer were to revisit the sanction imposed by the chairperson and was to impose a different sanction, this must be done only in circumstances where it is not ultra vires the disciplinary code and which are exceptional;
• it was reasonable to infer that when the parties negotiated the disciplinary code, they did not intend to grant the employer the power to review or appeal its own disciplinary decision, except through an appeal process. The court further held that to conclude otherwise would be to surmise that either party could unilaterally change the effect of the agreement;
• an employer, when appointing a chairperson, delegates the authority to discipline that employee to that chairperson. Therefore, for all intents and purposes the chairperson is the employer and their decision is that of the employer. Therefore, for the employer to then, when unhappy, substitute the decision would be functus officio, as the authority to discipline has already been accomplished, which is akin to res judicata. The employee was charged, they answered the charges against them and a finding was made. It could not be seen to be fair to then subject them to the wills and fancies of the employer which would then circumvent the provisions of the LRA, which is to allow for a fair procedure when disciplining one’s workforce.

8.
In the case of Mzolo v Rhodes University and Another (2461/2020) [2020] ZAECGHC 151; [2021] 3 BLLR 306 (ECG); (2021) 42 ILJ 1308 (ECG) (4 December 2020) (“Mzolo”), the High Court had to decide whether the employer, who was not satisfied with the outcome of a disciplinary could institute internal review proceedings, appoint an internal review body, and in order to set aside and possibly substitute the outcome with a different outcome.

• In Mzolo, the employee was not found guilty on charges related to sexual harassment and the employer considered the outcome of the independent chairperson to be unreasonable in that no reasonable decision maker under the same circumstances would reach such an outcome. The employer instituted the internal review process, in response to which the employee 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 of the employer had been incorporated therein and did not make provision for such internal review.
• The High Court held that the employer is entitled to internally review a decision taken by a disciplinary chairperson. This right is available to the employer even when this is not expressly provided for in the disciplinary code or the employment contract. The High Court stated that:

“disciplinary codes constitute guidelines, and procedural deviations are permitted where they are of form rather than substance and if they do not prejudice the employee; it is the presiding officer’s duty to apply the disciplinary code and the standards of conduct set by the employer; and even in criminal law, a rehearing is permitted if a trial was vitiated by a material irregularity.”

• The High Court found that the employer 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 LRA among other labour law prescripts, as relevant authorities in support of such review.
• Therefore in Mzolo the Court made reference to the circumstances outlined in Rustenburg Base Metal Refineres and concluded that the employer 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.

9.
In Anglo American Platinum Ltd v Beyers and Others (JA122/2019) [2021] ZALAC 16 (2 July 2021) the Labour Appeal Court held that, while the test was ultimately one of fairness, it would probably be unfair to subject an employee to further disciplinary action except in exceptional circumstances.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.