Collective disciplinary hearings are conducted when employees act collectively and are therefore collectively associated and charged with misconduct. Conducting various individual hearings is challenging and a collective hearing is a practical solution, however, it poses certain procedural uncertainties. Particularly whether collectively accused employees should remain in each other’s, as well as witnesses’, presence throughout the hearing or whether the employees can be separated at times, for instance when giving their statements.
The following legal principles are important:
- Section 34 and 35 of the Constitution of the Republic of South Africa, respectively state that everyone has the right for a legal dispute to be resolved through a fair hearing before, inter alia, an impartial forum, and that every accused person has a right to a fair trial, including to be present and to adduce and challenge evidence;
- The common law principle of audi alteram partem, meaning to let the other side be heard, which comes down to the principle that every person has the right to a fair hearing, in which each party is given the opportunity to respond to the evidence against them. In Opperman v CCMA and Others (C530/2014) [2016] ZALCCT 29 it was held that the chairperson must adhere to this principle, in that the employee who may be prejudiced by the imposition of a more severe sanction must be afforded to the opportunity to be heard and defend the charge against them. This was also upheld by the Supreme Court of Appeal in Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union and Others 1995 (1) SA 742 (A);
- Section 188(1)(b) Labour Relations Act 66 of 1995 states that a dismissal is unfair if the employer fails to prove that the dismissal was effected in accordance with a fair procedure;
- Paragraph 2(1) and 4(1) in Schedule 8 of the Labour Relations Act, the Code of Good Practice: Dismissal, respectively state that a dismissal is unfair if it is not effected in accordance with a fair procedure and that the employee should be allowed the opportunity to state a case in response to the allegations against them.
It is clear that the above principles of fair procedure are well established in South African labour law and that an employee has the right to be present and to be heard at a disciplinary hearing to which he/she is a party and that the chairperson must ensure that employees have an opportunity to challenge the evidence lead against them and to lead evidence in defence of the charge before a finding is made that may be adverse towards them, including in collective hearings.
To integrate the above principles into the procedure of collective disciplinary hearings is imperative to ensure the substantial fairness of a hearing. Collectively accused employees must simultaneously be present at the disciplinary hearing and be afforded an opportunity to: respond to the allegations made against him/her by the employer; hear the statement made by a co-accused; challenge evidence led by the employer’s witnesses and the witnesses of the co-accused or challenge the credibility of a witness through cross- and re-examination; and lead evidence through their own witnesses.
It is also advisable to hold separate hearings conducted by different chairpersons in the event that collectively accused employees plea differently, for the sake of conducting the hearings practically, efficiently and fairly.
There are exceptions to this general rule that employees should always be present at the hearing, being that the employee refuses to attend or participate without good cause or has absconded to prevent the fulfilment of a fair disciplinary hearing, as held in Old Mutual v Gumbi [2007] SCA. However, the right to a fair hearing is fundamental to all accused persons in the South African criminal, civil, labour courts, as well as at arbitration hearings at the CCMA and bargaining councils. It is also a common practice at disciplinary hearings. To conduct a hearing with an unfair procedure will infringe on their right to a fair hearing.
The courts have taken the approach that a procedural deviation would not necessarily mean that the subsequent dismissal was unfair. Only if this deviation resulted in actual prejudice to the employee in presenting his/her case, would it be unfair. Not abiding by the collective hearing procedure set out herein may cause that the principles applicable to a fair hearing are not achieved, which may amount to unfair procedure and prejudice to the employee and may lead to the risk that the finding or sanction be set aside, the employee be reinstated by the employer or compensation of the employee, as set out in section 193 and 194 of the Labour Relations Act.
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About the author:
Elsje-Marie van Zyl is a recently employed Labour, Consumer Protection and POPI Legal Advisor at SEESA Nelspruit. She obtained her LLB degree at the University of Pretoria and was admitted as an attorney.