Employers need fair appeal processes

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Tony Healy

Disciplinary procedures typically have supplementary appeal procedures which make provision for employees who feel unjustly wronged by a disciplinary hearing to appeal against the verdict of the hearing verdict and/or the sanction imposed.

But what if it is in fact the employer who feels aggrieved at the outcome on completion of a disciplinary hearing?

It’s not beyond the realms of possibility that an employer objects to a disciplinary hearing verdict or sanction.

Chairpersons are capable of rendering disciplinary hearing outcomes which are clearly ill considered.

Employees have recourse via the employer’s appeal procedure, but the employer on the other hand is invariably faced with a conundrum when a hearing outcome is objectively inappropriate.

Our courts have dealt with this state of affairs in the past, and did so once more in the Labour Court matter of Toyota SA Motors (Pty) Ltd v CCMA and two others (Case No D276/10) in a June 6 2012 judgment.

This case addressed, inter alia, the fairness, or otherwise, of convening a second disciplinary hearing in respect of the same alleged act of misconduct.

Linked to this is the question of whether rehearing a case in regard to the same act of alleged misconduct amounts to double jeopardy.

In this case, in essence, the employee was originally issued a written warning for the misconduct he was found guilty of in an original disciplinary hearing.

He was then subsequently dismissed when found guilty of the same offence in a subsequent rehearing of the case.

The employee deemed this to amount to double jeopardy.

The CCMA commissioner at the subsequent arbitration hearing agreed with the employee and held that his dismissal was substantively unfair on grounds that the employer had no right to rehear the case.

The Labour Court held, on the other hand, that “the test for determining when a fresh inquiry can be held is a matter of fairness and not whether exceptional circumstances exist”.

In the Labour Appeal Court case of Branford v Metrorail services (Durban) & others (2004), the court held that:

“It would manifestly be unfair for the company to be saddled with a quick ill-informed and incorrect decision of its employee who misconceived the seriousness of the matter and hurriedly took an inappropriate decision at a hearing leading to an equally inappropriate penalty.”

That’s not to say that employers may simply rehear disciplinary hearings until they achieve a satisfactory, pre-determined outcome.

It is also possible to incorporate a provision in appeal procedures for management to be entitled to appeal hearing outcomes.

This may go some way to providing a solution for employers when faced with ill-considered hearing outcomes.

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