By Moksha Naidoo

Question:

The South African Local Government Bargaining Council Disciplinary Procedure and Code collective agreement (collective agreement) stipulates the following in clause 4.2: ‘The code is a product of collective bargaining and the application thereof is peremptory and it is deemed to be a condition of service’.

Clause 5.6 stipulates as follows: ‘This procedure must be published and issued to all employees so that they are made aware, explicitly, of the standard of conduct in the workplace’.

Clause 6.10 states as follows: ‘The Disciplinary Hearing should commence within a reasonable time from the date of service of the notice of Misconduct and shall take place not earlier than five (5) days and not later than fifteen (15) days from the date of service of the Notice of Misconduct’.

My questions are as follows: What happens if the employer fails to comply with all of the mentioned clauses and if I raise a point in limine will I be correct to say I expect to dispose of the matter in a disciplinary hearing?

Answer:

My understanding of your question is that you would like to know whether or not you would be able to argue, at the commencement of your client’s disciplinary process, that as a direct result of the employer not following out an agreed on procedure, as contained in a collective agreement and which is specifically incorporated into your client’s employment contract, the employer is barred from continuing with the disciplinary process.

Much will depend on how one interprets the collective agreement, not only the terms in question but the agreement as a whole, but in general the answer will be no.

Firstly, one should bear in mind that a chairperson generally is not mandated to dispense with the disciplinary process for want of non-compliance to a collective agreement, unless the collective agreement provides for this. One would need to approach the courts to obtain an interdict for this relief. The Labour Court has repeatedly held that it would intervene only in matters where the disciplinary process has not been finalised, under exceptional circumstances.

With that in mind, I would not advise you to approach the court for such relief.

From a procedural viewpoint, the fact that the employer has not complied with the collective agreement does not in itself render the disciplinary process procedurally unfair. In Highveld District Council v Commission for Conciliation, Mediation and Arbitration and Others (2003) 24 ILJ 517 (LAC) the Labour Appeal Court (LAC) held:

‘Where the parties to a collective agreement or an employment contract agree to a procedure to be followed in disciplinary proceedings, the fact of their agreement will go a long way towards proving that the procedure is fair as contemplated in s 188(1)(b) of the Act. The mere fact that a procedure is an agreed one does not however make it fair. By the same token, the fact that an agreed procedure is not followed does not in itself mean that the procedure actually followed was unfair … . When deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinize the procedure actually followed. It must decide whether in all the circumstances the procedure was fair.’

Substantively the employee will have difficulty arguing that the employer’s failure to adhere to any prescribed procedure as set out in the collective agreement, results in the employer giving up its right to discipline the employee (it bears reiterating that the position would be different if the collective agreement specifically provides for this).

In Lekabe v Minister: Department of Justice and Constitutional Development (2009) 30 ILJ 2444 (LC), the applicant employee was placed on precautionary suspension. In terms of the employer’s disciplinary procedure, which was incorporated into the employee’s employment contract, the employer had to set down a disciplinary hearing no later than 60 days from when the employee had been placed on suspension.

The employer gave the employee notice to attend a disciplinary inquiry well after the 60-day period had expired. The employee approached the Labour Court on an urgent basis seeking to interdict the employer from pursuing any disciplinary action against him.

In dismissing the employee’s application the court held:

‘…the case of the applicant in the present instance is that the right of the respondent to proceed with the disciplinary hearing prescribed on the expiry of the 60 days from the date of his suspension.

In my view clause 2.7(2)(c) deals with suspension and not disciplinary action. There is nothing in this clause that says an employer would lose the right to discipline an employee on the expiry of the 60 days from the date of the suspension.

… the right of the employee in the event that the employer does not uplift the suspension on the expiry of the 60 days is to file an unfair labour practice claim or bring an application to have an order directing the employer to uplift the suspension. I need to emphasise that in my view it could never have been the intention of parties that the right to discipline by an employer would fall away on the expiry of the 60 days.’

Having made this point it is interesting to note that if a collective agreement provides for a specific dispute resolution path before, or in substitute of employees embarking on strike action, any strike action by employees, who did not follow this agreed on procedure could render the strike unlawful.

In BMW SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members (2012) 33 ILJ 140 (LAC), the employer and trade union entered into a collective agreement, which specified that a dispute concerning a matter of mutual interest would first be facilitated and if unsuccessful will be arbitrated. The union did not follow this procedure and instead followed the statutory dispute resolution path, after which its members embarked on strike action. The LAC, in relation to this specific fact, held:

‘It is common cause between parties that the clause sets out the procedure which the parties need to follow in dealing with the demand. The appellant however argued that the procedure set out in clause A.8.3 was the only way that the respondent was entitled to proceed in addressing its demand. I agree. Parties by way of a collective agreement set out certain procedural steps which they will follow in dealing with their demands, grievances, concerns, etc. In this respect appellant is correct to submit that the respondent was obliged to follow clause 8.3 in having its demand addressed.

…

A collective agreement concluded between the parties is binding between them. It is a contract that sets the agreed terms between them and as long as what is agreed upon is not in conflict with the applicable legislation or contra bones mores it is binding and enforceable between them.’

In my view the distinction between the principle in BMW and Lekabe cases is that in the former decision the language used in the collective agreement was interpreted to mean the right to embark on strike action was dependant on following an agreed on dispute resolution path. In the latter decision the interpretation of the collective agreement did not lend support to the argument that the employer lost its right to discipline its employee when failing to adhere to an agreed upon process.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2014 (Dec) DR 40.