Disciplinary proceedings should

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1 THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA -INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT Contemporary - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - TRANSFERRING CONTRACTS OF EMPLOYMENT - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - THE PROTECTION OF WHISTLEBLOWERS - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - PICKETING RULES -REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - PICKETING RULES -WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA - LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS - INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES Labour Law IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS -REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - DEDUCTIONS FROM PAY - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT RESTRAINTS ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL Vol. - SYMPATHY 21 No. STRIKES 5 - RETIREMENT December AGE AND UNFAIR 2011 DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - TRANSFERRING CONTRACTS OF EMPLOYMENT - POLYGRAPHS AND DISMISSAL - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL - THE SUSPENSION OF EMPLOYEES - THE ROLE OF REFERENCES IN RECRUITMENT - CONSTRUCTIVE DISMISSAL - FIXED TERM EMPLOYMENT CONTRACTS - THE TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT RESTRAINTS OF TRADE - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - PICKETING RULES -WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA - LEGAL REPRESENTATION AT DISCIPLINARY HEARINGS - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT by Carl Mischke BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF L - PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PS - TRANSFERRING CONTRACTS OF EMPLOYMENT - POLYGRAPHS AND DISMISSAL - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - THE EMPLOYMENT OF FOREIGN WORKERS - THE DISMISSAL OF SEX OFFENDERS - DOUBLE PAY ON PUBLIC HOLIDAYS - PROTECTED DISCLOSURE AND COMPENSATION FOR DISMISSAL - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL -RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - DISMISSAL FOR ABUSE OF - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - PICKETING RULES - CHANGING TERMS AND CONDITIONS OF EMPLOYMENT - WORKPLACE PRIVACY AND INTERCEPTION - DISCIPLINING SHOP STEWARDS - THE SUSPENSION OF EMPLOYEES - TESTING OF EMPLOYEES - DISMISSAL FOR COLLECTIVE MISCONDUCT - RECOVERING STOLEN MONIES FROM EMPLOYEES - UNFAIR RETRENCHMENT - DISMISSAL FOR ABUSE OF - SICK LEAVE - WHO IS AN EMPLOYEE? - PROMOTION AND DEMOTION - PROBATIONARY PERIODS FOR NEW EMPLOYEES - SHOP STEWARDS - THEIR RIGHTS AND OBLIGATIONS - CHANGING TERMS AND CONDITIONS - THE ROLE OF COLLECTIVE AGREEMENTS - THE REVIEW OF CCMA ARBITRATION AWARDS - OUTSOURCING AND THE LRA -INCOMPATIBILITY AS GROUNDS FOR DISMISSAL - ALCOHOL RELATED OFFENCES IN THE WORKPLACE - HEALTH SAFETY AND DISCIPLINE - THE SUSPENSION OF EMPLOYEES - SHRINKAGE AND DISMISSAL - WHAT IS AN EMPLOYMENT BENEFIT? - CALCULATING COMPENSATION FOR UNFAIR DISMISSAL - THE ROLE OF CONSISTENCY IN DISCIPLINE - IMPLEMENTING A FAIR RETRENCHMENT - PROCEDURAL FAIRNESS IN DISMISSAL - STRIKES IN SUPPORT OF UNLAWFUL DEMANDS -PICKETING RULES DURING STRIKES - DISMISSAL AND ADMINISTRATIVE JUSTICE - WHEN IS DISCRIMINATION FAIR -WHAT IS AN OPERATIONAL REQUIREMENT? - RECISSION OF CCMA AWARDS - AUTOMATICALLY UNFAIR DISMISSAL - SYMPATHY STRIKES - RETIREMENT AGE AND UNFAIR DISMISSAL - GROUP MISCONDUCT - GROUNDS FOR REVIEWING CCMA AWARDS - PAYMENT FOR PUBLIC HOLIDAYS - TRANSFERRING CONTRACTS OF EMPLOYMENT - SECONDARY STRIKES - DISMISSAL FOR UNAUTHORISED ABSENCE - SELECTION CRITERIA IN RETRENCHMENT - INTERPERSONAL RELATIONSHIPS AND DISMISSAL - ACCESS TO EMPLOYER INFORMATION - PRE-DISMISSAL ARBITRATION - THE PROTECTION OF WHISTLEBLOWERS - DEFINING REMUNERATION - VICARIOUS LIABILITY AND THE WRONGFUL ACTS OF EMPLOYEES - DOES NEW EVIDENCE JUSTIFY A NEW DISCIPLINARY INQUIRY - DAMAGES FOR SEXUAL HARASSMENT AT WORK - DISCRIMINATION ON MEDICAL GROUNDS - DISMISSALS AND HEARSAY EVIDENCE - Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box Tokai 7966 Tel: Delaying the disciplinary hearing Strategies and shenanigans Disciplinary proceedings should not take up too much time. Yet the law reports are filled with cases where the disciplinary enquiry seemed to drag on for months, if not years. All kinds of procedural issues may lead to one postponement after the other: the employer may fail to secure the attendance of an important witness or to produce a significant document. The employee may not succeed in obtaining a representative in good time or the representative requests more time to prepare for cross-examining a witness or to peruse documents. The employee himself or herself may fall seriously ill and need to be admitted to hospital this again can lead to a hearing again being postponed by weeks or months, depending on the availability of all the participants. If the enquiry is chaired by a senior manager, scheduling difficulties may drag the case out even more, and if the employer has elected to use an external chairperson to chair a hearing involving a senior manager, such delays have obvious cost implications. There are any number of reasons why disciplinary hearings are postponed time after time. The employer s representative may fail to secure the attendance of important witnesses or to produce relevant documents. The employee may not succeed in obtaining a representative in good time for the enquiry or may need more time to prepare a response to the charges, especially if the charges are more complex charges relating to dishonesty, fraud or negligence. An employee s representative may withdraw (perhaps due to other work commitments), leaving the employee again unrepresented. Another problem an employer may face is the illness of the employee. The chairperson of a disciplinary hearing will in all likelihood postpone proceedings if an employee is too ill to attend on a set date. But the employee s health problems may persist and may even, to a large extent, be linked to the disciplinary hearing itself. An employee may be diagnosed with stress and depression, for instance and Inside... Eavesdropping on employee's conversations p46 Gunning for the CCMA p50 Page 41

2 there can be no doubt that facing a disciplinary enquiry (especially in the case of a senior manager) can contribute in no small measure to illness of this kind. The employee s stress-related symptoms (sometimes even requiring hospitalisation) may increase as the date of the hearing continues and so a vicious cycle comes about, resulting in one postponement after the other on the basis of the employee s ill health. Naturally, this is still a positive view of things. There can be no doubt that there are employees (again, often more senior employees) who do their utmost to derail or to delay the finalisation of disciplinary proceedings, knowing full well that they will continue to be paid until the hearing has been wrapped up. The procedural points they raise in the proceedings may be nothing more than a delaying tactic or simple shenanigans to make the conduct of the hearing as difficult for the employer as possible. There is no guarantee that an employee s illness will not be a feigned illness. An employee may do everything in his or her power to throw the proverbial spanner in the works, to raise procedural points relating to documents, witnesses and, above all, representation. Par for the course? There can be little doubt that delays in finalising disciplinary proceedings also lead to disputes employees may argue, for instance, that the employer s right to discipline fell away because of the delay in wrapping up the disciplinary hearing. In Zono v Gruss NO & others [2011] 9 BLLR 873 (LAC), for instance, the employer s disciplinary code provided that the disciplinary hearing was to be finalised within a period of 30 days after the completion of the investigation. The code further provided that if the employer failed to institute disciplinary action within a period of three months after the investigation, the charges would fall away. In this case the employer concluded the investigation on 31 August 2005 and the employee was informed of the charges against him on 8 November The hearing was scheduled to commence on 22 November 2005, but the employer s representative postponed the hearing because a neutral presiding officer could not be found. The employee also raised various procedural objections. Some of the postponements that followed were granted after the employee had requested them. The hearing was then completed only in June The Labour Appeal Court found that the disciplinary enquiry was instituted timeously and that the proceedings were finalised as quickly as they could be under the circumstances. At no point did the employee languish under the impression that he would not be disciplined. Securing a neutral chairperson is just one possible reason for which disciplinary proceedings may be delayed. Another reason that may represent a considerable challenge to both the employer and the employee is the employee s failure to secure representation by a co-worker or trade union representative. While this problem does not arise to the same extent in highlyorganised workplaces where trade union representatives know their obligations towards their members and have some skills and perhaps experience in dealing with disciplinary proceedings, the same cannot be said in the case of more senior employees or managers. For these employees, finding representation by a trade union representative may be difficult for a number of reasons. A representative may be reluctant to represent an employee who occupies a more senior position than himself. In workplaces where the level of representivity by a union is relatively low, there may simply not be enough trade union representatives do go around: there may be more disciplinary processes than willing and able representatives. It may also simply be a case of numbers: that there are not enough trade union representatives available to deal with all the disciplinary hearings. But representatives themselves may face other difficulties. Their own workload may make the effective representation of an employee charged with misconduct virtually impossible. Ideally, the employer should arrange for the representative s workload to be reduced to make it possible for him or her to protect the best interests of the employee. This is not, of course, always possible, and representatives who find themselves overburdened with their own workload will in all likelihood choose to withdraw from representing the employee altogether instead of choosing to focus on an activity that may not be seen as a direct contribution to their careers. Page 42

3 For an employee the withdrawal of a representative may be a considerable blow, especially if this takes place during the course of the enquiry. The representative may, at that point in time, already be familiar with the charges and the personalities involved and have a sense of what can be done for the employee. The sometimes sudden and unexpected withdrawal of a representative due to work-pressures will now make it necessary for the employee to again search for someone who is willing to represent him or her in the disciplinary proceedings. Again, the disciplinary proceedings may have to be postponed, perhaps even more than once, if the employee does not succeed in finding a co-worker or trade union representative. Representatives may also withdraw for any number of other reasons, ranging from personal issues or illness. Another common reason for repeated postponements is the illness (real or feigned) by the employee charged with misconduct. An employee (or his or her representative) may argue that the employee is simply too ill to participate in the proceedings. This was the crux of the problem in Booysen v Minister of Safety and Security & others [2011] 1 BLLR 83 (LAC). The employee was suspended on serious charges including fraud, negligent administration of finances, insubordination and giving false evidence. On the first day of the enquiry the employee s legal representatives informed the enquiry that the employee had been diagnosed with post-traumatic stress disorder with major depression. The chairperson noted the request, but the hearing continued, given the medical reports submitted by the employer s medical practitioners that the employee was capable of attending the proceedings in a controlled environment. On the third day (2 November 2007), during the course of cross-examination of a witness, the employee s representative indicated that the employee was not feeling well he had suffered a severe panic attack. The hearing was postponed to 3 and 4 December The employee initiated Labour Court proceedings in respect of the payment of his remuneration during his suspension and the parties reached an agreement on this issue; also agreeing that the chairperson would decide on whether the employee was fit enough to continue with the hearing. When the matter proceeded the employee s representative requested an indefinite postponement or to a date in 2008 due to the employee s medical condition. This time around medical reports were submitted on behalf of the employee. One postponement followed another; eventually the chairperson concluded that the employee s health was good enough to attend the enquiry. It was at this point that the employee launched an urgent application in the Labour Court to review and set aside the chairperson s decision to continue. The Labour Court held that it did not have jurisdiction to intervene in disciplinary proceedings, but the Labour Appeal Court came to a different conclusion. The facts of this case illustrate an important point: that the disciplinary proceedings and what is said and done in these proceedings may have an adverse effect on the employee s health. An employee may experience painful flashbacks, panic attacks and depression directly as a result of the enquiry and the evidence. But there may also be cases where an employee suffers stress and/or depression at the prospect of the enquiry continuing. In such a case the employer will normally receive notice of the employee s illness, even sometimes the employee s hospitalisation, shortly before the hearing is due to resume. Again, this may require yet more postponements and consideration of medical issues that have nothing to do with the main focus of the enquiry itself. Interdicting disciplinary proceedings Generally it seems that the courts are taking a relatively strict view when it comes to intervening in disciplinary proceedings. In Volschenk & another v Morero NO & others [2011] 3 BLLR 313 (LC) the employees, facing charges of irregular financial transactions, made a request for legal representation. When this request was denied by the presiding officer, the employees launched an urgent application for an order staying the disciplinary proceedings until that decision had been reviewed. The Labour Court declined to intervene in the proceedings on the basis that the employees had not proven that they had a right to legal representation. The Labour Court also appears reluctant to intervene in cases where an issue could be referred to the Page 43

4 presiding officer. In Mahlalela v Office of the Pension Funds Adjudicator [2011] 6 BLLR 587 (LC) the Court found that the employee had complied with the urgency requirement even though the employee had waited for a month after the date of his suspension he had filed the Labour Court application soon after he had been notified of the date of the disciplinary enquiry. But the issue remained whether the employee had made out a case that grave injustice would result if the Labour Court did not intervene. Referring specifically to the Booysen decision of the Labour Appeal Court, the Labour Court attached some importance to the employer s argument that that the objections about the pending disciplinary proceedings had not even been raised before the presiding officer. This, the Court held, should have been the employee s first recourse before approaching the Labour Court. The application to the Labour Court was premature and the employee had not laid a basis for the Court to intervene to prevent a grave injustice. Operational requirements and specific legislation The question uppermost in the minds of employers who have faced situations like these is whether an employee can be dismissed on other grounds even if the disciplinary hearing has not been completed. The decision of the Labour Court in Department of Education, North West v Van Eck & others [2011] 4 BLLR 341 (LC) offers a glimmer of hope for these hard-pressed employers. The employee in this case was suspended, on charges relating to financial misconduct and the mismanagement of property, in August Disciplinary proceedings were scheduled a number of times, but for a variety of reasons, including the employee s poor health, the disciplinary hearing never reached a conclusion. Another reason for the delay was the fact that the employee had successfully requested the chairperson to recuse himself. In total, the disciplinary proceedings dragged on for about 17 months. In January 2007 the employee was given an opportunity to make representations as to why he should not be dismissed. The employer in this case relied on section 17(2) of the Public Service Act which provided, at the time, that an employee could be dismissed if such dismissal would promote the efficiency or economy of the department or office in which the employee is employed, or if the dismissal would otherwise be in the interest of the public service. In other words, straightforward operational requirements. On review the question was whether the employee s termination of service was indeed for operational reasons or for misconduct the answer to this question would determine the related question of whether the employee was entitled to severance pay. The Labour Court found that there was no reason to interfere with the award. The dismissal was indeed based on the employer s operational need to finalise the employment status of the employee as a matter of urgency as a result the employer resorted to a no-fault operational requirements dismissal. Is this approach at the disposal of other employers employers who are not covered by the Public Service Act of 1994 with its very specific formulation? This seems to be a question that has not been explored. In this context, there are some important points to bear in mind. The first, pivotal, consideration is that the Labour Court in this case was not concerned with whether the dismissal was substantively fair. Nor was the CCMA commissioner. The entire case focused on the question whether the employee was entitled to severance pay and he would only be so entitled if it could be proven that the reason for the dismissal was neither misconduct nor operational requirements. The second point is that the language used in section 17(2) of the Public Service Act is very specific it almost seems geared to encompass situations like this. At this point in time, the only decisions relating even obliquely to this point are employment relationships covered by specific legislation. In Oasis Group Holdings (Pty) Ltd v Bardien [2011] 3 BLLR 284 (LC) the legislation concerned was the Financial Advisory and Intermediate Services Act (FAIS Act) 37 of The employee s contract provided for a three month notice period and 30 days sick leave during each annual leave cycle. He resigned on 30 July 2010 and requested the employer to waive his notice period because his health had deteriorated: he submitted a medical certificate diagnosing depression and anxiety. The employer was a registered financial services provider. The employee s symptoms were in all likelihood the result of the allegations that he had advised one of the employer s clients to bond her house and to make Page 44

5 certain risky investments. These investments failed as a result of the general market malaise and the client lost a large sum of money. There was little doubt that the employee had indeed given the client the poor advice: he admitted his wrongdoing in an affidavit. The operational obligations in this case had their origin in the FAIS Act which requires a financial services provider to ensure that its representatives are competent to act and that they comply with the fit and proper requirements of the Act. The FAIS Act also requires an employer in this sector to ensure that a disbarment of a representative does not negatively impact on the interests of clients and that the representative s unfinished business is wrapped up after he or she has been disbarred. The Labour Court found that the employer had done what it could to accommodate the employee s illness during the three months, hoping that the employee would recover sufficiently to return to work and face a disciplinary enquiry. The essence of the employer s argument was that the employee had to return to work to face the music something he had avoided doing by claiming that he suffered from stress and anxiety. There were two issues for the Labour Court to decide: whether the employee could take sick leave during his notice period and whether the employer could still hold a disciplinary enquiry even though the employee s notice had expired. As regards the first issue, the Court affirmed, on the basis of s 37(5) of the Basic Conditions Act of 1997, that the employee was entitled to take sick leave during his notice period (whether the medical certificates the employee had submitted were valid was not an issue the Court was called upon to decide in this case). But it was not possible for the employer to extend the employee s service in order to compel him to face a disciplinary enquiry: [28] It would have been preferable for the applicant to have convened a disciplinary hearing while his contract of employment was extant and for the respondent to have attended it. But the absence of such a hearing does not preclude the applicant from continuing with its investigation and fulfilling its duties under the FAIS Act. It cannot, in my view, extend the contract of employment beyond its termination date where the employee has given the requisite notice in terms of the contract. He has, on the face of the medical certificates provided, not refused to tender his services, but has been unable to do so due to illness. By implication, the employee s absence would not render invalid the employer s investigation and other procedures in terms of the FAIS Act. Drawing a line? The general rule remains: the purpose of a pre-dismissal hearing is to give the employee an opportunity to respond to the allegations of misconduct and the employee is entitled to be present throughout the proceedings. But the question, in broad terms, remains unanswered: is there a point at which the employer can simply indicate that no further postponements of the disciplinary hearing will be contemplated and that the hearing will proceed even if the employee is not present? There are some situations in which our Courts have recognised that a disciplinary process may indeed go on. If the employee walks out of the hearing or chooses not to attend the hearing, the employer will still have complied with its basic obligation to give the employee an opportunity to state a case in response to the misconduct allegations. In Foshini Group v Maidi & others (2010) 31 ILJ 1787 (LAC) the Labour Appeal Court made it clear that an employee who chooses not to attend an enquiry does so at his or her own peril. If the employee has an objection about the presence of a person (such as the initiator), the employee can still be expected to participate in the proceedings and to place those objections on record. The answer to the question of whether the employer can proceed in the absence of the employee must, unfortunately, be found in the conduct and the employee s reasons for not attending (and the related consideration of whether those reasons are legitimate or not). If the employee is simply trying to prevent the disciplinary hearing or to derail it altogether, an argument can be made out that the hearing may proceed. There is a two-sided consideration of fairness that applies in this context: whether fairness demands that the employee s dismissal be set aside. In Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA) the Supreme Court of Appeal said that procedural fairness means nothing more than an Page 45

6 obligation on the employer to afford the employee an opportunity to be heard before dismissal and if the employee fails to grasp this opportunity, there can be no talk of procedural unfairness. But the focus of this principle is narrower: [9] In the present case Old Mutual had offered the employee a chance to defend himself against the allegations of misconduct which led to his dismissal. The employee did not take the opportunity. The crucial question is whether his absence from the hearing was, in the circumstances of this case, justified; or, differently put, whether fairness to both parties demands that his dismissal be set aside or not.... The decisive consideration in cases such as these is simply whether the employee has a legitimate reason that justifies his or her absence from the hearing. If there is any doubt as to the validity of the medical certificates the employee has submitted, for instance, the employer may well decide to interrogate those certificates and even, if the employees absence on the basis of ill health continues to cause considerable disruption to the disciplinary hearing, to request the employee to submit to a medical examination conducted by a medical practitioner nominated by either the employer or, as was done in the Van Eck case, by the chairperson of the enquiry. The challenge is to determine whether the employee has a valid reason for being absent from the hearing and requesting a postponement, or whether the justification presented by the employee is simply a strategy to delay the enquiry yet again. This is cumbersome, for it means that the disciplinary hearing now also has to consider the validity of the employee s proffered excuses and request for postponements. Although cumbersome, in situations where the disciplinary hearing is postponed repeatedly and drags on for many months (if not a year or more), there may be no other way of dealing with the delay. Carl Mischke Eavesdropping: Unauthorised recording of an employee's conversations by Carl Mischke For many years, it was not much of a topic: the integrity of employees communications, whether these were online communications, e- mails or telephone calls. In the course of this year, however, the CCMA has had to deal with situations where employers got to know about their employees activities and derogatory comments on social media and took disciplinary action as a result. Or a situation where an employer almost inadvertently accessed an employee s web-based and again sought to base disciplinary charges on that information. Issues of privacy, the interception of communications, the application of the Regulation of Interception of Communications and Communications Related Information Act of 2002 (RICA) and the related issue of whether the evidence the employer seeks to rely on is in fact admissible. In Davids v Special Investigating Unit [2011] 12 BALR 1275 (CCMA) a CCMA commissioner was called upon to decide whether the contents of a recorded conversation between an employee and a third party constituted admissible evidence in an unfair dismissal arbitration. Some of the background facts in the case are only too well known to most South Africans: in February 2009 the legal representative of President Zuma (Michael Hulley) announced to the National Prosecuting Authority (NPA) that he was in possession of recordings of telephone conversations between the former head of the Directorate: Special Operations in the NPA (Mr McCarthy) and a number of individuals. It was said that these telephone conversations effectively proved that the NPA was implicated in a conspiracy to manipulate criminal charges against the President. One of the conversations was between the applicant and McCarthy. The employer (in this case the Special Investigating Unit or SIU to which the employee reported) said that the contents of that recording led to a notice of incompatibility being issued to the employee, followed by the employee s dismissal. The question Page 46

7 the CCMA commissioner had to answer, before even turning his attention to the question of the fairness of the dismissal was whether the contents of the recording could be relied upon as evidence by the employer to prove the employee s incompatibility. One of the problems the employer faced was the fact that the interception was made with reference to the cell phone of the third party (McCarthy) there was no interception of telephone calls on the employee s cell phone. The story of how the recording got into the hands of the Special Investigating Unit (SIU) is a long and complex one, involving also the SA Police Service and the National Intelligence Agency. It was clear from the evidence that the employer did not itself make the recordings, but obtained the recordings from other sources. The SIU did, however, listen to the recordings, and it was contended that the employer did nothing unlawful in doing so. The Director of the SIU and another person listened to the recordings and made notes about their contents. Another serious issue the employer faced was the fact that the recordings were no longer available they could not be produced and played at the arbitration hearing. The employer could simply not find the recordings. This meant that the employer was in effect relying not on the recordings themselves, but rather on the Admissibility in CCMA arbitrations The employer s starting point as regards the admissibility of the recorded conversation was unusual: s 138(1) and (2) of the Labour Relations Act of 1995 (the LRA). The employer argued that in view of the fact that commissioners are enjoined to conduct arbitration with the minimum of legal formalities, they may relax the usual rules relating to when evidence would be admissible. The task of a CCMA commissioner conducting an arbitration includes ruling on the admissibility of evidence and that s 138 of the LRA gives a commissioner a very wide discretion in this regard. The commissioner set out the general rule as regards the admissibility of evidence as follows: [21] It was submitted that the general rule is that evidence is relevant it is admissible, and that a court will not concern itself with how the evidence was obtained, subject to the exception that a court has discretion to exclude evidence improperly obtained... improperly obtained evidence is admitted if fairness and public policy considerations warrant its admission. It was further argued that a decision whether or not to admit unlawfully obtained evidence involves a consideration and weighing of competing interests within the context of section 36(1) of the Constitution RSA. The employer argued that the CCMA had shown some inconsistency when it comes to admitting unlawfully obtained evidence. The employer pointed out that in Sugreen v Standard Bank of SA [2002] 7 BALR 769 (CCMA) a CCMA commissioner had admitted a recording of a telephone conversation made using the employer s telephone system - that the recording was made during business hours and using the employer s telephone were some of the relevant factors in this earlier decision. The factors the CCMA commissioner took into consideration in the Sugreen case were the following: The recording was not aimed at entrapping an employee to commit a crime, There were few other ways of securing the evidence, given the fact that the crime in question had already been committed. The recording was not part of a longterm, on-going monitoring of the employee s calls, The employer did not make the recording, it was made by someone else, The telephone conversation was recorded during working hours, using the employer s telephone. But the employer sought to make out a case that the award in Sugreen did not apply in the present case, Contemporary Labour Law is published monthly from August to July of each year. Visit our website at www. workplace.co.za for information and subscription details. Subscription Enquiries : Tel : (021) Fax : (021) workplace.co.za ISSN X Copyright held by the authors. No part of this publication may be reproduced in any form without the prior written consent of the publishers. Page 47

8 quite simply because the employer, the SIU, was not responsible for the interception of the telephone call at all. The interception had been made by a third party and the employer had received the recording (on a computer flash drive) from another party. The contents of the telephone conversation were the basis of the employer s case it comes as no surprise to find therefore that the employer tried every possible argument to persuade the senior commissioner to admit the evidence. The employer s starting point was that the evidence was profoundly relevant it went to the heart of the matter, namely whether the employee was indeed incompatible with the SIU in general and its Director. The recorded conversations were the only evidence the employer had. Some arguments were more general: that the interests of justice and public policy demand that senior public officials conduct themselves with integrity. The point that the conversations were recorded by someone else was emphasised and also that the employee s employment contract contained a clause that gave permission for undercover operations to be conducted against him. A major practical challenge remained: the fact that the recordings had gone missing the employer could not rely on the recordings themselves but on the evidence provided by the Director and his colleague in respect of what they heard when they listened to the recordings. This fact was promptly turned into yet another argument presented by the employer: given that the real evidence (the recordings) was not available, the employer was in fact relying on the evidence presented by two witnesses as to what was in the recordings. This meant that the secondary evidence of what was in the recordings (and what was said by the employee) would be admissible. In other words, the conclusions reached by the Director and the other manager of the SIU would be admissible. Illegally obtained While the employer resorted to some nimble-footed arguments before the commissioner, the employee s response was quite simple: the employer was set on introducing the evidence of secret recordings of a telephone conversation he had had with another telephone conversations the employee did not record. There were a number of holes in the employer s argument, including an assumption that the recordings actually existed and an assumption that they were authentic. There was another uncertainty: that these were the actual recordings listened to by the managers of the SIU. The main argument presented on behalf of the employee was that the recording of a conversation between two persons by a third party (this third party not being party to the communication) contravenes the RICA specifically, s 2 of that Act. Reference was also made to s 14 of the Constitution of 1996 which contains a constitutional guarantee of privacy. Given the roundabout manner in which the SIU had obtained the recordings, there were too many gaps for comfort: [37] It is argued that the evidence discloses a number of critical narratives. First, the SIU is unable to prove who made the recordings. Secondly, no evidence of authorisation has been adduced. And that even if Hofmeyr s belated assertion that he saw an interception order issued to the NIA can be regarded as reliable and safe, it does not assist the process in the sense that it does not confirm the order he saw, or whether the order was for the recordings at issue, for which period it was applicable, whether or not these recordings were procured within the restrictions imposed by the order, the purpose for which the order was made and whether it could be extended to cater for the purpose for which the SIU now seeks to use it. Because no case had been made out, the argument continued, that the recordings were indeed obtained under lawful authority, both the recordings (which had gone missing) and the evidence about the recordings must be excluded from the arbitration proceedings as being unlawful. In a difficult position Perhaps somewhat grandly, the commissioner begins his analysis of the evidence and the arguments by looking at the value proposition represented by the CCMA: [48] This outcome will seek to provide clarity and direction and to a certain extent restate the role of the CCMA where, through application there may have been or developed an impression of impending diversion. A purposive approach of the CCMA s role in labour disputes is central to appreciating and comprehending its legal Page 48

9 derivation in the context created within chapter 7 of the LRA. The CCMA is not a court of law. This statement, in as a much as it provides contextual certainty, is a far cry from the empirical reality that besets commissioners and users at the cold face of dealing with labour disputes. This case by its very nature is a case in point. Whilst there is no counter argument to the contextual statement for the CCMA s existence, it must be balanced against considerations that require the CCMA to adopt a modus operandi that does not reduce it to ridicule and rations that require the CCMA to adopt a modus operandi that does not reduce it to ridicule and cynicism. These self-reflexive ruminations are not entirely without a point: the CCMA s duty entails ensuring fairness and equity. But in this case the technicalities of the evidence and its admissibility could lead to a situation where the CCMA simply complies with the law of evidence and the presentation of evidence. The application of the evidence, the commissioner said, must promote fairness and fairness must in turn be supported by the evidence. In this case the central questions were, first, whether the evidence about a recording between the employee an Leonard McCarthy was legally obtained. The second issue was, if the information was obtained illegally, whether the evidence should still be admitted in the arbitration proceedings because considerations such as fairness and public policy justifies admitting the evidence. The pivotal point in this case was that the evidence concerned was obtained illegally. How the SIU became aware of the recordings and how it conducted itself after it got hold of the recordings does not change the status of the evidence from illegal to somehow freed from taint. The recording of the conversation between the employee and McCarty still fell within the scope of s 2 of the RICA Act it remained a criminal offence. In the arbitration the SIU was still not in a position to show who made the recordings; nor could the SIU offer any evidence to show that the recording had been authorised. A number of questions remained about the authorisation questions that could not be answered. These questions included whether the recordings were in fact covered by the authorisation, whether the authorisation was issued with certain restrictions and whether the recording was made during the period of the validity of the authorisation. There was only one possible conclusion: the statutory (RICA) requirements and conditions had been botched the recordings and the evidence about the recordings were illegal for the purposes of the CCMA proceedings. Nor did the employer s reliance on s 138(1) of the LRA change the matter: [62] Before commenting on the authorities and linking its relevance to the matter before me, I must first address the context created within section 138(1) of the LRA. This section endows commissioners with wide powers in respect of the manner in which the arbitration will be conducted, but does not endow them with the power to misapply legal principles with impunity. Reference to the minimum of legal formalities as set out in the section is in reference to the procedure adopted by the commissioner and not the substance of the evidence before him, to conclude otherwise would give rise to inequitable outcomes and would inadvertently be open to abuse. In this case the admission of the illegally obtained evidence would prejudice the employee s rights. The employee was being asked to respond to a recording which he had not heard. He did not know the content, the scope and the context of those recordings. The way the SIU approached the matter would in effect mean that he would have to respond to allegations that are in turn based on assumptions which the managers in the SIU (who had listened to the recordings) would not be able to explain. The result: the commissioner found that the evidence about the recordings which were made of the conversations between the employee and Mr McCarthy was illegally obtained and inadmissible. This award is clearly exceptional. There can be little doubt that the commissioner not only paid careful attention to the arguments being presented by both parties, but approached the questions) and their answers in a practical and direct manner while still obviously being aware of the CCMA s role in dealing with difficult cases such as these. The award was impeccably researched and well-written, steering clear of the obvious political undertones that accompanied Page 49

10 this series of events. And there can be little doubt that the commissioner reached the correct conclusion. No employee would be able to formulate a response to allegations that have their root in ephemeral audio recordings presented not to the employer but to another organisation on a computer disk. How the employer dealt with the information after it had heard the recordings is completely beside the point what matters Gunning for the CCMA Kicking up a fuss may just backfire in this case is that the employer sought to terminate the employee s service not on the basis of what one of his colleagues had said, but on a nebulous conversation that was intercepted and recorded by some shadowy figure a figure that, naturally, did not put in an appearance at the CCMA arbitration proceedings. Carl Mischke Not all employers seem to have read the memo: that, by and large, the general hunting season on the CCMA, its management and especially its commissioners is over (and actually has been for some time). Some employer parties to CCMA arbitrations not only get the law wrong, but then proceed to kick up a huge fuss about what it perceives as being an inept and even evil empire. In Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun Waterfront Hotel v CCMA & others [2011] 10 BLLR the employer launched not one, but two applications. The first took under aim a jurisdictional ruling issued by a commissioner. The second application was for costs to be awarded against the CCMA the costs being incurred in the course of the first application. The really surprising aspect of this case was that the legal principle concerned has long been settled. The case related to a foreign national from the Seychelles and she worked for the employer as a receptionist. At the time she only had a study permit and when this expired the employer told her that they could no longer employ her. She could no longer lawfully tender her services and she was therefore no longer entitled to any pay. The employee s attempts to obtain a valid permit failed and she was summoned to a disciplinary enquiry. She was dismissed. Naturally, the employee referred a dispute to the CCMA. It comes as no surprise that the employer objected to the CCMA s jurisdiction; the commissioner ruled that the commission did indeed have jurisdiction. The CCMA then set the matter down to continue. But the commissioner felt that it would be in the interests of fairness to both parties that the matter be rescheduled for a final half day s hearing. This would allow the employer to lead evidence on the contentious issue raised in the jurisdictional ruling. The employer subsequently requested a postponement which was declined and thereupon launched the review application pending the finalisation of the review of the jurisdictional ruling. On review, the Labour Court found that the commissioner s jurisdictional ruling passed muster. But what caught the notice of the court was the intemperate way in which the employer sought to attack the commissioner s ruling. In general terms, the employer argued (in respect of the application for costs) that the CCMA unilaterally refused to accommodate the employer s request to first have the review application heard before the matter could continue. The arbitrator came in for the most venomous attack: he had unreasonably, irrationally and grossly irregularly held that the CCMA had jurisdiction, that his refusal to postpone the hearing pending the finalisation of the review verged on the incredible. The employer said that the commissioner s decision suggested gross illegality and even a lack of bona fides. Aiming more broadly, the employer said that the CCMA was guilty of flagrantly improper behaviour. This did not impress the Labour Court, and the Court reminded the employer of its other remedies. In the end, the Labour Court could find no reason why the CCMA should be held liable for the employer s costs in the first application to stay the proceedings. After all, the employer had failed to comply with the CCMA s own rules regarding postponements. And so the Court ordered the employer to pay the CCMA s costs, including the costs of senior counsel. Carl Mischke Page 50