A Second Bite at the Proverbial Cherry

Introduction

We are all human and we all make mistakes from time to time. Some mistakes may be so fatal, that it is irreversible or incorrigible e.g. causing someone’s death through negligence. Other mistakes may be easy to correct, such as just disposing with (tearing up or deleting) a sub-standard or incorrect first draft of something you wrote and starting afresh. In-between these two extreme examples one finds a middle ground category of mistakes with varying prospects of correction based on choice on the one hand and expediency on the other. This article looks specifically at how disciplinary decisions made and implemented can legally and fairly be revisited and corrected afterwards. Taking into consideration that in labour law one often deals with the grey area between right and wrong, as well as between legal and fair, the answer to whether a disciplinary decision is corrigible, is invariably to be found in the middle ground referred to in the first paragraph above.

Context

Decisions taken by an authoritative person or body, which have or reasonably could have a profound impact on another person’s life, interests and well-being, need thorough consideration and need to be treated with circumspect. In a previous article, titled: “Common Sense & Fair Play”, I dealt, amongst others, with the principle of natural justice called Audi Alteram Partem (“Hear the other side”). This principle requires that before a decision, as described above, is taken, the decision maker has to hear and consider the version or explanation of the person that would be on the receiving end of the decision. This serves to ensure that the decision taken is based on the totality of relevant evidence and circumstances. This equally applies to disciplinary decisions. The norm, as far as far as disciplinary decisions are concerned, was well-expressed in the CCMA case: Frost v Telkom South Africa (2001), and I quote: “The norm in assessing the fairness of a disciplinary offence is a single disciplinary enquiry, conducted in compliance with the employer’s disciplinary code. Where there has been compliance with the employer’s disciplinary code, and the first enquiry adequately canvassed the facts involved, it will be unfair to hold a second enquiry” (my emphasis). The unfair conducting of a second disciplinary hearing or enquiry is generally termed “double jeopardy”. This is the norm and point of departure when assessing the fairness of holding a second disciplinary enquiry, related to the same occurrence. In criminal and civil proceedings (just to complete the contextual picture), the principles of autrefois acquit / autrefois convict and res judicata, apply respectively, both of which principles basically serve as defences where a person was tried again after a competent court already adjudicated the matter. The effective barring of revisiting a decision arrived at in a criminal or civil court, by the application of these principles, is however (in criminal and civil law) outweighed by the finality and legal certainty established by the application of these principles. In the Labour Appeal Court case: BMW South Africa (Pty) Ltd v Van Der Walt (2000) the court argued that the above-mentioned principles are however not to be imported in labour law as considerations regarding the appropriateness of holding a second enquiry. In the court’s view, fairness and fairness alone, within this context, is the only yardstick to be applied in labour law.

Learnings from two prominent cases decided by the Labour Appeal Court regarding the holding of a second disciplinary hearing

BMW South Africa (Pty) Ltd v Van Der Walt (2000) In short – The employee applied for the removal of redundant company equipment to be acquired by himself and was subsequently charged with having acted fraudulently in the process of having the equipment removed from the employer’s premises. During the disciplinary hearing, he was found guilty of only misrepresentation and no sanction was imposed. Subsequently, further and new information related to certain vital facts about the case, having been concealed by the employee during the first disciplinary hearing, came to light. When this vital information emerged, a second disciplinary hearing was held, and the employee was dismissed. The employee disputed the fairness of his dismissal as a consequence of a second disciplinary hearing and the case was eventually heard by the then Industrial Court. The Industrial Court found that the dismissal, which resulted from the second disciplinary hearing, was unfair. BMW referred the matter on review to the Labour Appeal Court (LAC) which court found that the dismissal was fair in the circumstances. The judge however, made a cautionary remark obiter (in passing), pointing out that the holding of a second hearing could be ultra vires (beyond the legal authority) the employer’s disciplinary code or policy or be unfair if not based on exceptional circumstances existing. What persuaded the LAC was that the employer only came to realise the full extent of the employee’s conduct after the facts that the employee concealed came to light. While it could have been argued that the employer should have seen through the employee’s scheme earlier, that still does not justify that the employee should escape scot free. Upon realising the full extent of the employee’s deception, the employer lost all confidence in the employee. This being the case, the court held that it would be unfair to expect an employer to retain an employee in whom it, justifiably, lost all confidence, hence the dismissal in consequence of the second disciplinary hearing, was found to be fair. Learning points:

• Vital information was withheld by the employee in the first hearing, justifying a second hearing.
• This vital information only came to light after the first hearing, constituting new, relevant information.
• The nature of the new information is such that it had a profound aggravating effect on the gravity of the offence.
• The employee was subjected to a second hearing where he could participate in and challenge the allegations against him (due application of the audi principle).
• It is advisable to ensure that the disciplinary policy caters for the eventuality of a second disciplinary hearing, provided that there are prevailing exceptional circumstances.

Branford v Metrorail Services (Durban) & others (2003) LAC

In short – The employee was accused of fraudulent petty cash claims totalling R834.00 and with all relevant information to the knowledge and disposal of his line manager, the production manager and a senior manager in the finance department, the employee was given a verbal warning by his line manager in the presence of the other two officials mentioned. Following a subsequent internal audit carried out, the employee was however subjected to a second disciplinary hearing and dismissed for fraud, forgery and dishonesty. The employee referred the matter to the statutory dispute resolution forum and failing a settlement at conciliation, the matter was referred to arbitration in accordance with an existing Bargaining Council agreement. The arbitrator found for the employee and ordered the latter’s reinstatement. The employer took the arbitrator’s award on review to the Labour Court, which court granted the relief sought by the employer in setting aside the arbitrator’s award. The employee then approached the LAC for relief. The LAC rejected the Labour Court’s findings, also pointing out that the auditor’s findings merely confirmed which was already known and brought no new evidence to the table. The court also noted that the relative informality with which the first disciplinary enquiry was conducted, resulting in the verbal warning, does not make it pro non scripto (to be ignored as if not existing). The appeal was upheld, and the Labour Court’s order was set aside. Learning point: Where the employer had all relevant information to its disposal when taking a disciplinary decision and implementing it, a second disciplinary hearing will generally be unfair (refer to the principle extracted from Frost v Telkom SA).

Some useful guidelines

The CCMA case: Solidarity obo Pienaar / Harmony Gold mine Ltd (2011) provided some useful guidelines to consider when contemplating holding a second disciplinary hearing:

• Consider whether the 1 st hearing have been conducted in good faith and the presiding officer considered all the evidence put before him/her;
• Consider whether the presiding officer in the 1 st hearing had the authority to take a final and binding decision or merely made a recommendation regarding the sanction to be imposed;
• Consider whether the 1 st hearing was conducted in accordance with the employer’s disciplinary policy;
• Consider whether the employer acted in good faith when deciding to hold a 2 nd hearing;
• Consider whether the 2 nd hearing was provided for in the employer’s disciplinary policy;
• Consider whether the 2 nd enquiry was conducted with due observance of the principles of natural justice;
• Consider whether factors were taken into account in the 2 nd hearing which the employee did not have the opportunity to answer to;
• Consider whether and in what circumstances new and relevant information came to light after the 1 st hearing;
• Consider the duration of time between the 1 st and 2 nd hearing;
• Consider the gravity of the employee’s offence (all evidence taken into account);
• Consider the extent to which the penalty that was imposed in the 1 st hearing was out of kilter with the sanction prescribed by the disciplinary code and those sanctions actually imposed in practice for the particular offence;
• Consider whether the finding imposed in the 1 st hearing was supported by the evidence.

Further to the second bullet point above, there is obviously no “2 nd hearing” at play where the presiding officer in the 1 st hearing merely made a recommendation to line management regarding the sanction to be imposed, leaving it to line management to take an informed decision regarding the sanction – line management pronouncing on the sanction in consequence of the recommendation received (not being bound by it) does not constitute a “2 nd hearing”, but is a finalisation of the 1 st hearing.

Conclusion

Subjecting an employee to a second disciplinary hearing can be regarded as justified in the circumstances or it may amount to “double jeopardy” and thus be unfair. That much have we learned from the cases mentioned above. It would however be advisable to formally make provision for the eventuality of conducting a second disciplinary hearing in exceptional circumstances, which circumstances could include:

• Where the presiding officer in the initial hearing did not have all the relevant information and evidence to his/her disposal when taking the decision, but being led to believe that the information and evidence to his/her disposal were complete;
• Where the presiding officer in the initial hearing, having had certain relevant information to his/her disposal, but chose not to take it into consideration;
• Where new, relevant information/evidence came to light only after the initial disciplinary hearing was concluded;
• Where the decision taken by the presiding officer in the initial hearing was not done in accordance with policy provisions;
• Where the decision taken by the presiding officer in the initial hearing was totally out of kilter with the prescribed sanctions in the disciplinary code and/or inconsistent with how similar cases were treated, thus creating an untenable inconsistency and commensurate unfairness.
• Where the employee deliberately withheld vital information from the employer.

While the objective with the enforcement of discipline in the workplace must be to do things right the first time and to train and skill line managers to do just that, one should make provision for correcting the odd mistake made in the process, due to human error. It is however imperative that doing these corrections should be and remain the exception to the rule: “doing it right the first time”. Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP