The Labour Court recently had the opportunity to determine whether a deviation from an employers’ disciplinary code renders the subsequent disciplinary proceedings unfair. In Broadcasting, Electronic, Media & Allied Workers Union and others vs South African Broadcasting Corporation and others a 2016 decision, the SABC sought to discipline approximately 100 employees for their involvement in what it alleged amounted to medical aid fraud. Despite the employer’s disciplinary code stating that individual hearings should be allowed before a panel of 3 chairpersons, the SABC elected to ask the employees to respond to the charges in writing after which it submitted the charges and the responses thereto to an independent chairperson. The chairperson determined guilt for each individual person and thereafter, representations on the sanction was done in the same manner.
The Union approached the Labour Court on an urgent basis for an interdict. Upon consideration of the submissions made by the respective parties, the Labour Court held that although the process adopted by the SABC in this case was different to its normal approach, it could not be said that the process (which was in writing) was not a “formal disciplinary hearing” as the process envisaged a hearing chaired by an independent and experienced Chairperson (albeit on paper). This in the Labour Court’s view satisfied the requirements as set out in the Code of Good Practice of the Labour Relations Act which was endorsed in the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006).
The Court also held that to have individual hearings for more than 100 employees would be detrimental to “workplace efficiencies”.
The Labour Court concluded that it was satisfied that the deviation of the prescribed procedure still ensured that discipline would be exercised fairly and in accordance with the rules of natural justice.
All employers should note that the Labour Court would only interfere with incomplete Disciplinary Hearings in instances where a grave injustice is looming and severe.
It is also clear to note that employer’s may on occasion be justified in bypassing its own written and agreed to disciplinary process when the situation calls for same and when, in the interest of justice, same can be uphold. Each case, however, needs to be assessed on its own merit.