Tuesday, May 06, 2008
Section 188 of the Labour Relations Act, 66 of 1995 (“the LRA”) requires that a dismissal be for a fair reason and effected in accordance with a fair procedure. 


Insofar as procedural fairness is concerned, the Code of Good Practice: Dismissal, which is a schedule to the LRA, provides that an employer should usually conduct an investigation to determine whether there are grounds to dismiss an employee. If the investigation reveals that the employee may have committed misconduct, he should be notified that a disciplinary enquiry will be held, and must be served with a charge sheet setting out the allegations against him. 


Employees must be notified of the charges they are being called upon to answer before the disciplinary hearing commences. The charge sheet must be formulated in precise and simple terms and charges may not be vague. The standard of clarity of a disciplinary charge sheet is not as high as one in a criminal trial. Nevertheless, the charges must contain sufficient factual information to allow the employee to prepare for the disciplinary hearing and to respond to the charges. Employees must also be afforded a reasonable amount of time to prepare for the hearing, as well as the assistance of a trade union representative or fellow employee. After the hearing, the employer should communicate the decision taken, preferably in writing.


The employer is generally not permitted to change or supplement the charges after the commencement of the disciplinary enquiry, if the effect of such an amendment is to prejudice the employee. If charges are substantially changed, the employee should not be required to deal with these charges without a reasonable opportunity to prepare his defence on them. This often leads to a postponement of the hearing.


The recent decision of the Labour Appeal Court (“LAC”) in Fidelity Cash Management Service v CCMA and Others [2008] 3 BLLR 197 (LAC) upheld the elementary principle of South African labour law that the fairness or otherwise of an employee’s dismissal should be determined on the basis of the reasons for dismissal given by the employer at the time of the dismissal.


The employee was a planner at the Durban control room of Fidelity Cash Management Services (“Fidelity”). During August 2001, armed robbers stole R1.2 million in cash from an aircraft soon after it landed at Virginia airport. The escort vehicles which were supposed to have been at the airport when the plane landed had not yet arrived. Following an investigation, and his refusal to accept a demotion, Fidelity charged the employee with misconduct.


The employee was called to a disciplinary hearing to face the following four charges of misconduct: gross negligence (the nature and extent of which were not specified in the charge sheet); dereliction of duty, as a result of his failure to ensure there was an escort vehicle when the aeroplane landed; failure to subject himself to a polygraph test at Fidelity’s request; and failure to comply with instructions, in that he arrived late at his disciplinary hearing. He was found guilty on all four charges and dismissed. 


The employee referred a case of unfair dismissal to the Commission for Conciliation Mediation and Arbitration. The arbitrator found that his dismissal was unfair, and reinstated the employee. Fidelity took the arbitration award on review to the Labour Court, where it was unsuccessful. It then appealed to the LAC.


The LAC pointed out that, at arbitration, Fidelity did not, in its opening statement, mention the dereliction of duty charge, nor the one of gross negligence. Fidelity also did not dispute that the charge of gross negligence was a duplication of the dereliction of duty charge. The implication of this was that Fidelity could not, on appeal to the LAC, say that the charges of gross negligence and dereliction of duty were different, independent charges.


In fact, Fidelity did not pursue the dereliction of duty charge at the LAC. Rather, Fidelity relied on what it called the employee’s failure properly to monitor the control room, and his “careless statement” as to who was on duty to ensure that the escort vehicles were present at the airport on the day of the robbery. The LAC found that the employee was not charged at the hearing with any misconduct related to the control room, nor for his incorrect instructions as to who was on duty. In other words, Fidelity’s case on appeal related to acts of misconduct for which the employee was not charged at the disciplinary hearing. He was, therefore, not found guilty of, nor dismissed for, these charges at the disciplinary hearing.


In these circumstances, the LAC held that Fidelity no longer relied on the reasons for the employee’s dismissal which were given at the time of his dismissal. It no longer justified the employee’s dismissal on these allegations. As a result, the appeal to the LAC was dismissed.


When the fairness of a dismissal is challenged, this will be determined on the basis of the reasons given when the employee was dismissed. As a result, the charge sheet plays a fundamental role in the disciplinary process, and employers should ensure that charge sheets specifically and accurately reflect the allegations of misconduct against the employee. They will not be permitted to rely on new charges at arbitration, review or appeal to prove that there was a fair reason to have dismissed the employee.


Reghana Tulk and Robyn Hugo are senior associates in the Employment Law Department at Bowman Gilfillan.