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Misconduct during a disciplinary hearing – what now?

Misconduct during a disciplinary hearing – what now?

Can an employee be dismissed for serious misconduct committed during a disciplinary hearing?

A case study:

The Labour Appeal Court (LAC) in the case of Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union and Others recently decided the former issue but refrained from making a finding on the issue.

The employee, Skhosana, in the case had been charged with misconduct and was required to attend a disciplinary hearing along with 6 other co-accused employees. Violence broke out at the hearing, during which the chairman was assaulted. The hearing was therefore abandoned. In response, and without subjecting the employees to a further disciplinary enquiry for their subsequent misconduct, the employer summarily dismissed all 7 employees.

Skhosana then referred an unfair dismissal dispute to the Bargaining Council. At the arbitration it transpired that Skhosana had not physically assaulted the chairman but stood in front of the doorway, preventing anyone to exit, and shouted “hit him, hit him”, thereby making common cause with the assault and the disruption of the hearing. The arbitrator accordingly found that her dismissal was substantively fair. On appeal, the LAC endorsed the arbitrator’s finding, holding that “the decision reached on the substantive fairness leg is supported by witnesses….”

Regarding procedural fairness, the arbitrator found that the dismissal was procedurally unfair since the employer had not followed any procedure in dismissing Skhosana. The LAC refused to consider the arbitrator’s finding on procedural fairness because the employer had not filed a cross-appeal on this issue.

The arbitrator’s finding on the issue of substantive fairness is unassailable. The arbitrator erred on the issue of procedural fairness as he failed to consider paragraph 4 of Schedule 8 to the Labour Relations Act (LRA) which provides that “in exceptional circumstances, if the employer cannot reasonably be expected to comply with the guidelines in respect of a fair procedure, the employer may dispense with pre-dismissal procedures.” The employer could not reasonably be expected to provide the employee with a further hearing in light of the fact that the employee was involved in the assault of the chairman at the previous hearing.

The significance of this case is that it provides authority for the proposition that an employee may be dismissed for serious misconduct which he or she commits at a disciplinary enquiry.

ABOUT THE AUTHOR

Andile Khumalo obtained his LLB degree and LLM degree in Labour Studies from the University of KwaZulu-Natal. He received his LLM degree cum laude and was awarded the Best Labour Law Masters Student of 2016 – Award by the South African Society for Labour Lawyers (SASLAW). Before joining SEESA, Andile worked as a candidate attorney at Cliffe Dekker Hofmeyer (Sandton) and at Eversheds-Sutherland (KZN). He is currently a SEESA Labour Legal Advisor at our Durban office.

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