Friday, April 17, 2009

Disciplinary codes and policies used by employers often contain strict guidelines in regard to time periods for holding disciplinary hearings. Whilst employers are generally required to follow agreed time periods set out in their disciplinary codes, failure to do so does not necessarily render such disciplinary procedures unfair.

Consider the following example: A Senior Manager at a government institution is suspended due to an alleged fraud of R30 million whilst the matter is investigated. Chapter 7 of The Senior Management Services Handbook states that the employer must have a disciplinary hearing within 60 days of the employee being suspended. An investigation task team is put in place on day 1 of the employee’s suspension.
Should the investigation take more than 60 days, at which time no disciplinary hearing has been held, does it follow that the disciplinary hearing and the suspension should automatically fall away?
In Highveld District Council v CCMA & others [2002] 12 BLLR 1158 (LC), Du Plessis AJA stated that “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 was not followed does not in itself mean that the procedure actually followed was unfair”.
Thus in the example provided above, because a hefty sum of money is involved, coupled with an investigation into the fraud, in addition to the complexity of the matter, are significant factors to be considered when determining whether the employer’s conduct in not holding a disciplinary hearing within 60 days constitutes an unfair procedure.
The approach adopted by Du Plessis AJA was endorsed in SA Tourism Board v CCMA & others [2003] 9 BLLR 916 (LC) and Khula Enterprises Finance Ltd v Madinane & Others [2004] 4 BLLR 366 (LC).
In SA Tourism Board it was noted that a disciplinary code was not intended to be peremptory in its terms but rather to provide a guideline for fair and equitable procedure. Thus an employer need not comply slavishly with every detail of the code.
This was confirmed in Khula Enterprises, where Kennedy AJ held that “[t]he code merely represents guidelines and is not to be elevated to an immutable code which is to be applied rigidly and must apply regardless of the circumstances”.
Nevertheless, the employer’s conduct is a vital consideration in determining whether it may have a disciplinary hearing outside of the time periods stipulated in its disciplinary code. An employer cannot simply hold back and do nothing for an extended period of time and then, months later, decide it wishes to enforce disciplinary action on an employee, relying on the contention that the code is merely a guideline.
Such conduct would amount to a waiver of its rights to institute disciplinary action. Judge Pillay stated in Jonker v Okhahlamba Municipality & others [2005] 6 BLLR 564 (LC) that an employer must exercise its powers of discipline in a reasonable manner and, accordingly, an employer is expected to deal with discipline expeditiously. Thus, there may be instances where the waiver or abandonment by the employer of its right to discipline can be inferred from its conduct.
It follows therefore that an employee cannot rely on a strict interpretation of time periods contained in a disciplinary code to claim that any disciplinary hearing held thereafter would be procedurally unfair. Various factors varying from delays by the employee to lengthy investigations may mean that such a delay is inevitable or necessary.
Provided the employer acts expeditiously and reasonably, employers are entitled to hold disciplinary hearings outside of the time limits provided for in its disciplinary codes.
Luway Mongie is an associate in the Dispute Resolution Department at Bowman Gilfillan.