By Deon Mouton

The employee in this matter received a final written warning for misconduct relating to the breaching of safety regulations on the employer’s Wonderkop Ferrochrome Smelter. Not satisfied with the outcome, the employer instituted a second inquiry hearing against the employee and dismissed the employee. The employer held the second inquiry hearing because the employee was already on a final written warning for a similar misconduct at the time of the initial disciplinary inquiry. The employer was of the view that the chairperson of the initial disciplinary inquiry erred by not taking the existing final written warning into account.

Following the dismissal, the employee referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council (MEIBC). The parties agreed during the pre-arbitration conference not to lead evidence and only argue as to whether the employer committed an act of double jeopardy or not. The commissioner found in favour of the employer and the employee took the matter on review to the Labour Court (LC). The LC set aside the arbitration award and referred the matter back to the MEIBC for a hearing de novo. The discussion herein is based on the hearing de novo.

Double jeopardy

In instances where an employee was found not guilty during a disciplinary inquiry or where an employee was issued with a sanction short of a dismissal, the employer is not as a rule allowed to hold a second inquiry hearing relating to the same transgression (J Grogan Workplace Law 10ed (Cape Town: Juta 2009) at 245). As a matter of fact the majority of companies’ disciplinary procedures do not make provision for such. In National Union of Metalworkers of South Africa v Vetsak Co-operative Ltd and Others 1996 (4) SA 577 (A) the Supreme Court of Appeal held as follows with regard to assessing fairness when considering an employment relationship:

‘Fairness comprehends that regard must be had not only to the position and interests of the worker, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances … . And in doing so it must have due and proper regard to the objectives sought to be achieved by the Act’.

In BMW (South Africa) (Pty) Ltd v Van der Walt [2000] 2 BLLR 121 (LAC)  the Labour Appeal Court (LAC) held as follows with regard to determining whether or not it would be fair for the employer to subject an employee to a second disciplinary inquiry:

‘Whether or not a second disciplinary inquiry may be opened against an employee would, I consider, depend on whether it is, in all the circumstances, fair to do so. … In labour law fairness and fairness alone is the yardstick.’

The above matter was followed in Branford v Metrorail Services (Durban) and Others [2004] 3 BLLR 199 (LAC) the LAC held that:

‘The true legal position as pronounced in Van der Walt is that a second inquiry would be justified if it would be fair to institute it’.

The question that arises is, what remedy does an employer have for a flawed disciplinary inquiry, which was patently unfair and grossly prejudicial towards the employer? This question was answered in a recent arbitration award in the MEIBC in the matter of NUMSA obo Percy Montshiwagae v Glencore Wonderkop Smelter (unreported METS 2539, 23-2-2015). The arbitration award is dated 23 February 2015.

The applicant argued that it was unfair to discipline him twice for the same misconduct. He submitted that no new evidence was presented at the second disciplinary hearing. He argued that the respondent could only interfere with the chairperson’s decision if the chairperson’s decision was prompted by improper motives of the chairperson.

The respondent argued that the fairness of the second disciplinary inquiry depends on the yardstick of labour fairness. It was argued that the fairness of the matter turned on the mistake of the first disciplinary chairperson who did not take into consideration that the applicant was already on a final written warning for a safety related incident. It was submitted that fairness and equity as well the objectives of the Labour Relations Act 66 of 1995 should be taken into account.

The commissioner held that double jeopardy is intuitively unfair but not intrinsically unfair. He found that the second disciplinary hearing emanated from a flawed decision by the chairperson on the sanction. He further held that the applicant conceded under cross-examination that a dismissal was appropriate in his case in view of his final written warning that was tantamount to agreeing that the decision was flawed. The commissioner held that the decision of the first hearing was grossly flawed. He held that the applicant’s safety record was appalling and the misconduct he committed was inexcusable.

The commissioner acknowledged that the respondent’s disciplinary procedures make no provision for an appeal by the company. He held that finality is paramount in civil and criminal cases, but does not enjoy the same sanctity in labour law. That is why the autrefois acquit/convict rule was not incorporated into labour law. The commissioner opined that wider equitable considerations are at play. More specifically the sustainability of the employment relationship between the parties. The commissioner held that the respondent could not file a judicial review and had no other option but to rehear the matter. The commissioner declared the second disciplinary inquiry fair and reasonable and dismissed the matter.

Conclusion

It is customary to hold only one disciplinary inquiry in accordance with the employer’s disciplinary code and procedure. Only in exceptional circumstances may an employer be required to hold more than one disciplinary inquiry. There are two types of instances where the employer requires a second disciplinary inquiry. Firstly, the employer may view the sanction meted out by the chairperson unsatisfactory. Secondly, the employer may regard the process followed in the disciplinary inquiry flawed or irregular. It has crystallised through a number of cases that employers are allowed to revisit disciplinary enquiries. But there are no clear guidelines under which circumstances an employer can hold a second disciplinary inquiry.

The circumstances under which a second disciplinary can be conducted will obviously differ from case to case. It appears that it is easier for an employer to accept a sanction or to hold another disciplinary hearing in instances where the first disciplinary chairperson only recommends a specific sanction. It would, however, be more difficult for an employer to change a disciplinary outcome in instances where the chairperson makes a binding decision. In the matter of Solidarity obo Van Rensburg v Rustenburg Base Metal Refineries (Pty) Ltd [2007[ 9 BALR 874 (P) it was held that the sanction was shockingly inappropriate and the employee should not get away with a bargain. Mischke is of the view that a revisiting of a disciplinary inquiry would be fair if it falls within the parameters of fairness and fairness should be applied to both the employer and the employee (C Mischke ‘On second thoughts’ Contemporary Labour Law (2009) vol 19 no 2 (Sept) 11).

Fairness for an employee is to have an adequate opportunity to respond to the allegations. Similarly, fairness to the employer is to have an adequate opportunity to present the employee with the allegations and to have a reasonable, just, coherent and appropriate sanction. It will not be fair towards an employee if an employer simply repeats the disciplinary process until it gets the desired result.

Accordingly, in light of the above, I submit that in determining whether it would be fair for an employer to subject an employee to a second inquiry hearing based on the same allegations levelled against him or her at the first disciplinary inquiry, the only test that must be applied is whether in all circumstances, it is fair to subject an employee to a second disciplinary inquiry.

Fairness is determined based on the facts of each case, and there is no particular set of factors that ought to be considered in determining fairness in the circumstances.

• The employer was represented by the writer of this article who is employed as a Senior Business Partner Employee Relations by the respondent.

Deon Mouton BProc (UFS) LLM (NWU) is a Senior Business Partner: Employee Relations at Glencore Wonderkop Smelter in Rustenburg.

This article was first published in De Rebus in 2015 (Nov) DR 47.