Employment law update – ‘Double jeopardy’ and second hearings in misconduct cases

December 1st, 2021
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In Anglo American Platinum Ltd (Rustenburg Platinum Mines) v Beyers and Others [2021] 10 BLLR 965 (LAC) an employee failed to comply with the employer’s safety rules as machinery had been left ‘live’ while working on the equipment. He was required to attend a disciplinary hearing, during which he pleaded guilty. The chairperson issued a final written warning and recommended that the employee attend re-training. In making the decision on sanction, the chairperson considered that this was a first offence for the employee and there had been no breakdown in the trust relationship. Furthermore, the chairperson found that the employee had just breached procedure but had not caused real harm to the workplace. The employee was sent for re-training and was then instructed to report for duty again.

The trade union then complained that there had been inconsistent application of discipline as members of the trade union had previously been dismissed for the same offence. In response to this complaint, a review panel was convened, and the employee was required to attend a review hearing, during which summary dismissal was recommended.

The employee was, therefore, dismissed and referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration. The commissioner found that the dismissal was substantively and procedurally fair. On review, the Labour Court set aside the arbitration award and ordered reinstatement. This was because the chairperson had been afforded the power to make the decision on sanction as opposed to merely making a recommendation. Therefore, it was held that there were no exceptional circumstances to warrant another review panel changing the decision. Furthermore, it was held that there was no evidence of inconsistent application of discipline.

On appeal, the Labour Appeal Court (LAC) had to consider under what circumstances there can be interference with the decision made by a chairperson appointed by the employer to chair a disciplinary hearing in circumstances where the employer’s disciplinary code does not provide for a review or appeal hearing.

The LAC considered the principles in BMW (South Africa) (Pty) Ltd v Van Der Walt [2000] 2 BLLR 121 (LAC) where it was held that whether or not a second disciplinary inquiry may be convened against an employee would depend on whether it is in all the circumstances fair to do so. It was held that the yardstick to apply is ‘fairness and fairness alone’ and that it would probably not be fair to hold more than one disciplinary inquiry save for in exceptional circumstances.

In this case, the LAC found that there would have to be exceptional circumstances to warrant a second hearing into the misconduct in these circumstances. The evidence suggested that the employer would not have interfered with the sanction if the union had not complained. There was also no evidence on the inconsistent application of discipline. It was held that the arbitrator had failed to determine whether fairness between the employer and the employee, informed by exceptional circumstances to do so, justified the interference with the sanction imposed by the chairperson. The dismissal was accordingly found to be substantively unfair and as such the appeal was dismissed with costs.

Alleged automatically unfair dismissal in the context of a restructuring

In De Bruyn v Metorex (Pty) Ltd [2021] 10 BLLR 979 (LAC), an employee who was dismissed for operational requirements referred a dispute to the Commission for Conciliation, Mediation and Arbitration alleging that his dismissal was automatically unfair on the basis of nationality and language. In this regard, the employer had embarked on a restructuring process. The operational rationale for this was part of a plan where there would be greater autonomy for the mines owned by the employer and there would be a reduction in the oversight role played by the head office in Johannesburg, where the employee was based. The intention was for there to be only Chinese or Chinese speaking managers at the mine so that they could effectively communicate with the employees on the mine. It was for this reason that the employee’s role at head office was proposed to be made redundant. The employee argued that the redundancy of his role was as a result of a Chinese-speaking person being appointed as Chief Executive Officer (CEO), who took over a lot of the employee’s duties and responsibilities. Furthermore, the employee alleged that he should have been accommodated as the deputy CEO when his role was made redundant, but the employer had a requirement that both the CEO and deputy CEO needed to be Chinese or Chinese-speaking so that they could effectively communicate with the mine managers in Chinese. A retrenchment process was accordingly commenced in respect of the head office staff, including the employee.

The employer conceded that the reason for the dismissal was based on language but alleged that the discrimination was justified. This was because the employer was in a difficult financial situation, which required operational and structural changes, including raising finances and reducing operating costs. Importantly, even the employee had not disputed that there was a legitimate business rationale for appointing Chinese mine managers and retaining head office personnel who could communicate effectively with them. The Labour Court dismissed the claims, finding that the employee had been fairly dismissed because his position had become redundant. It was also found that the dismissal was procedurally fair because a fair consultation process had been followed with the employee.

As regards severance pay, the employee disputed the fact that the lower paid employees who were retrenched were paid higher multiples of severance pay more than the statutory minimum whereas executives were not paid this enhanced severance package. The Labour Appeal Court found that this different treatment was not unfair because it was aimed at alleviating the financial burden for the very low earning employees.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2021 (Dec) DR 35.

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