Felicia Van Rooi and Nicole Chetty of Eversheds
An employee pleads guilty to committing fraud amounting to hundreds of thousands of rands. The chairperson of the disciplinary inquiry decides to impose a sanction of final written warning. The employer is not happy with the sanction, as it feels that it can not trust the employee anymore and that by retaining the employee in its employment, it might create a precedent among employees that if they committed fraud, they would get away with a final warning.
The question arises as to whether an employer in these circumstances can overturn the sanction imposed by the chairperson of the disciplinary inquiry. Usually in the context of Labour Law, employers are bound by the sanction that is imposed by the chairperson of the disciplinary hearing.
A case in point County Fair Foods (Pty) Ltd v CCMA and Others. The employee was charged and found guilty of assaulting a few employees. The chairperson of the disciplinary hearing imposed a sanction of a final written warning and unpaid suspension. County Fair was not happy with the sanction and decided to overturn it. It dismissed the employee. The Labour Appeal Court had to decide whether employers can over-turn the sanction of a disciplinary chairperson, should they not be satisfied with the sanction. The Labour Appeal Court said if an employer’s disciplinary code made provision for the decision of the chairperson of a disciplinary inquiry to constitute a recommendation, then the sanction could be overturned. County Fair’s disciplinary code did not permit the employer to overturn the sanction imposed by the chairperson of disciplinary inquiry. The Labour Appeal Court found that the dismissal was procedurally unfair and 10 months’ compensation to the employee. The Labour Courts seem to be more lenient towards employers in the public sector. They have found in a number of cases that because the government as an employer deals with public funds and taxpayers’ money, it should have the flexibility to overturn and second guess sanction imposed by chairpersons of disciplinary inquiries. It, however, has to be in the public interest to do so.
Employers in the private sector can only overturn the sanction imposed by the chairperson of a disciplinary inquiry if their disciplinary code provides that the sanction constitutes a recommendation. Even if the disciplinary code provides for this, employers must provide well-motivated reasons as to why it was necessary to overturn the sanction to a more severe punishment, should the employee decide to approach the court for relief.
Employers are therefore advised to carefully consider the role and powers they want chairpersons to have in their disciplinary hearing and provide for in their disciplinary codes in order to avoid a situation where they will have to keep an employee in their employ who through his or her conduct has destroyed the trust relationship between them.
