Not every disciplinary process

Contemporary Labour Law On second thoughts... Vol. 19 No. 2 September 2009 When can an employer revisit a disciplinary hearing? by Carl Mischke Managing Editor: P.A.K. Le Roux Contributing Editor: Carl Mischke Hon.Consulting Editor: A.A.Landman Published by Gavin Brown & Associates Box 31380 Tokai 7966 Tel: 021 788 5560 www.workplace.co.za Not every disciplinary process delivers the result the employer wants. Usually, if the employer goes to the trouble of arranging for a formal disciplinary enquiry, there is some expectation (stronger or weaker, as the case may be) that the employee will be dismissed. But of course life is not what we always expect it to be, and it does happen that an employer is taken aback by the outcome of its own disciplinary process. There are many things that may thwart the process: the employer may have obtained the services of an independent chairperson who, casting a cold and objective eye over the allegations and evidence the employer has, comes to the conclusion that dismissal is not appropriate. There is always the possibility (slight as it may be) that the chairperson is biased or simply gets things wrong. The question that arises then is whether the employer can revisit its own disciplinary process and, specifically, the outcome of that process. Is it legally permissible for an employer to reopen a disciplinary enquiry, to review that process, or simply to overturn the sanction imposed? Is it legally possible for the employer to scrap one disciplinary process and initiate another on the same disciplinary charges and against the same employee? Double jeopardy and the LAC The basic point of departure is that subjecting an employee to more than one disciplinary process on the same charges and relating to the same events would be a contravention of the double jeopardy rule. The phrase double jeopardy, although an Americanism, is certainly more illustrative than our own trio of foreign language phrases: res judicata in civil law (a claim that as been decided by a court cannot be re-heard, subject to any appeal) and autefois acquit in criminal law (someone who has been acquitted of a criminal offence cannot be recharged with the same offence relating to the same facts). It is a territory that has been explored, at least to some extent, in our law. The first decision traditionally cited is that of BMW (SA)(Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC). The employee initiated a complicated scheme to sell some equipment the employer had declared redundant to a close corporation. The close corporation was to be invoiced by a company that belonged to the employee. The employer brought a number of charges against the employee, including fraud. He was Page 11

eventually found guilty of having made a misrepresentation when he removed the equipment. For the Labour Appeal Court, it is was clear that the employee was in fact guilty of a fraudulent misrepresentation (taking the form of a non-disclosure): he should have informed his employer of its error when it indicated that the equipment had no value. As it turned out, there were two disciplinary enquiries. At the first, the employee was charged with fraud on three counts. The conclusion of this first process was a finding that the employee was not guilty on any disciplinary offence, except making a misrepresentation. No sanction was imposed. The Labour Appeal Court found that this meant that the employer did not consider the employee to have committed a disciplinary offence. Shortly after the first enquiry, the employer said that it obtained new information and the employee was charged with a new and different charge. It was this new information that forcibly drove home the enormity of the employee s deception: up to this stage it had been assumed that the equipment had been acquired by the employee. The fact that the employee attempted to sell the equipment put matters in a new light: a new document obtained by the employer made it look as if the employee had in fact smuggled the employer s equipment out of the premises and then tried to sell it. The attempted sale demonstrated, said the Court, the employee s fraudulent intent as going far beyond making a mere misrepresentation. The Labour Appeal Court said the following as regards the holding of a second enquiry: [12] Whether or not a second disciplinary enquiry may be opened against an employee would, I consider, depend upon whether it is, in all the circumstances, fair to do so. I agree with the dicta in Amalgamated Engineering Union of SA & others v Carlton Paper of SA (Pty) Ltd (1988) 9 ILJ 588 (IC) at 596A-D that it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick. See also Botha v Gengold [1996] BLLR 441 (IC); Maliwa v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC). I should make two cautionary remarks. It may be that the second disciplinary enquiry is ultra vires the employer s disciplinary code (Strydom v Usko Ltd [1997] 3 BLLR 343 (CCMA) at 350F-G). That might be a stumbling block. Secondly, it would probably not be considered to be fair to hold more than one disciplinary enquiry save in rather exceptional circumstances. This passage is important for a number of reasons. It effectively excludes the res judicata and autrefois acquit principles from labour law. It also establishes a dominant theme in the context of double jeopardy, namely that the exclusive consideration is that of fairness. Two other remarks indicate some limitations: that a second enquiry may not be provided for in the employer s disciplinary code and that a second enquiry would not be considered fair except under exceptional circumstances. In some cases it appears that the provisions of the disciplinary code (or, rather, the absence of provisions in the disciplinary code) that make provision for the employer to revisit the sanction imposed by a chairperson is of some considerable importance. In County Fair Foods (Pty) Ltd v CCMA & others [2003] 2 BLLR 134 (LAC) the employer interfered with the sanction imposed because the sanction imposed by the chairperson was inconsistent with the way in which similar cases had been dealt with. There was no provision in the employer s disciplinary code that could justify this kind of intervention and it was clear that this was the first time the employer had ever intervened. Given that the employer acted without the foundation of a provision in its disciplinary code and that there was no precedent for its action, the arbitrator had concluded that the dismissal was unfair. On this point, the Labour Appeal Court found that the arbitrator s decision was justifiable. Fairness (with a twist) was also the motif in Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC). The employee, a traffic control officer (with 21 years service) was dismissed for making eight fraudulent petty cash claims for tea, coffee, sugar and milk powder. This was not a case of there being two enquiries: before being dismissed, the employee had been given a recorded oral warning in Page 12

respect of the same alleged offences. Some of the considerations that led the employer to leniency was the fact that the employee had succeeded in reducing overtime expenses and that he had introduced significant savings. The bargaining council arbitrator had concluded that the employee s dismissal was unfair, given the existence of the prior warning. The Labour Court had disagreed, finding that the first enquiry was nothing more than a discussion between a line manager and the employee that led to the oral warning. The Labour Court had also drawn a distinction between the offence of fraud (for which the employee was dismissed) and a mere irregularity - the latter giving rise to the oral warning. The important gloss the majority of the Labour Appeal Court placed on the core concept of fairness was an emphasis on the fact that fairness is a two-way street, that it applies to both the employer and the employee. When it comes to deciding whether a second enquiry would be fair, it is necessary to balance the competing and conflicting interests of the employer and the employee. While this is a slight but nevertheless important shift in emphasis, it takes the difficult question of when it is fair to hold a second enquiry no further: the Labour Appeal Court merely says that the weight to be attached to the employer s and the employee s interests would depend largely on the circumstances of each case. Returning to the facts of the case, the Labour Appeal Court concluded that the arbitrator had misconceived the law relating to the permissibility of holding a second enquiry and, as a result, the arbitrator effectively denied the employer the opportunity of having the fairness of the employee s dismissal considered appropriately. The irregular enquiry There is, unfortunately, no guarantee that a disciplinary enquiry will be conducted as it should: there is every possibility that things can and will go wrong in some way or another. Nor is there any guarantee that the outcome will reflect the employer s intentions. The question then arises whether the employer can hold a second enquiry simply because the first enquiry was fatally flawed in some way or another. Is it permissible for the employer to subject the employee to a second enquiry because there was some procedural or other flaw in the first enquiry, or will be employer be bound by the conclusions the chairperson of the first enquiry reached (irrespective of the flaws in the process)? Some of these issues were canvassed by the Labour Court in Solidarity/MWU obo Van Standen v Highveld Steel & Vanadium & another (2005) 26 ILJ 2045 (LC). The employee was charged with making derogatory or racist remarks and using racist language on another occasion. The employee was acquitted on all the charges, and the trade union representative that assisted the complainant lodged an appeal against the finding of the disciplinary tribunal. An appeal hearing was duly scheduled but did not proceed. The employer s disciplinary code, exceptionally, provided for a re-hearing of disciplinary matters in certain circumstances. This would take the form of a pre-dismissal arbitration process as envisaged in s 188A of the Labour Relations Act of 1995 (the LRA) and the second enquiry would be presided by a CCMA commissioner. The employee concerned had no intention of submitting to the second process, which he regarded as being irregular and unfair. What played a significant role in the Labour Court s consideration was the gravity of the charges levelled against the employee; it would hardly be possible to overstate the consequences, said the Court, if the allegations against the employee were not properly addressed. It was also clear that the original enquiry was flawed: [14]... There is also the obvious irregularity committed by the disciplinary tribunal to be considered. A finding was made and pronounced at the hearing that Mr Van Staden had probably used racially abusive language as alleged. The parties were even invited to address the tribunal on mitigating and aggravating circumstances. This conduct is not consonant with the tribunal s later unsubstantiated and startling pronouncement of not guilty on all the charges including the one in respect of which the finding had been made. It does seem to me in the circumstances that the first respondent would be entitled to convene a rehearing even if clause 11.1 [of the disciplinary code] did not exist. It is difficult to attach a name to the problem that arose in respect of the first enquiry. At best, it can perhaps be said that the outcome was irrational, given the procedural steps (the hearing of mitigating and aggravating circumstances) that had been taken. For Page 13

the Court, it suffices to call this simply an obvious irregularity, but this is a broad category that may include or exclude any number of issues, ranging from a blatantly biased chairperson, purely procedural issues such as the failure to call or to allow witnesses, to incorrect findings on fact by the chairperson or even the imposition of a wholly inappropriate sanction by the chairperson. In this case, however, it can perhaps be said that the proceedings themselves made no sense, that they were irrational and that this irrationality constituted the irregularity to which the Court refers. But the use of the term irregularity in the Court s judgment already seems to indicate that, at least as far as the language is concerned, the nature of the enquiry is akin, in one way or another, to the process of review. Can it be said, that the employer can in effect review its own disciplinary proceedings, and, if these proceedings are flawed, set them aside and start new proceedings afresh? The immediate question that springs to mind, in this context, is on what grounds the employer may do so. May the employer, for instance, review its own disciplinary process on the grounds set out in s 145 of the LRA? In the public sector, the Labour Appeal Court has held that the decision of a disciplinary tribunal constitutes administrative action and, as such, it is open to review. Authority for this is to be found in MEC for Finance, KwaZulu-Natal & another v Dorkin NO & another [2008] 6 BLLR 540 (LAC). Here, the employee (a director) had been charged with several counts of misconduct, including granting bursaries in excess of the authorised amounts, unauthorised purchase of goods for the Department and the fact that assets under his control had been lost. Altogether, the employee s actions and omissions cost the Department more than R1.2 million. The disciplinary enquiry was chaired by the first respondent, a chief director in the same department. The employee charged was eventually found guilty, but the chairperson imposed only a final written warning as a sanction. The Labour Court dismissed the employer s review action on technical grounds, and the employer then proceeded to the Labour Appeal Court. There was little doubt in the Labour Appeal Court s mind that any employee who was found guilty on the number and nature of these allegations should be dismissed. There appeared to be nothing that could save the employee from dismissal. The Labour Appeal Court concluded that the conduct of disciplinary hearings in the workplace where the State is the employer constitutes administrative action, and, as such, it is required to be lawful, reasonable and procedurally fair. The Labour Appeal Court then revisited the BMW decision: In BMW (South Africa) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC), the majority held that an employer has a right to subject an employee to a second disciplinary inquiry on the same issue in respect of which he has already been found guilty and has had a sanction imposed upon him when it is, in all the circumstances, fair to do so (see BMW case at 117G H, paragraph 12) but, in the last sentence of the same paragraph, it was stated that (i)t would probably not be considered to be fair to hold more than one disciplinary enquiry, save in exceptional circumstances that cannot be absolute as there may be exceptional circumstances in which every reasonable person would agree that senior authorities in an organisation, particularly a Government department, must be able to intervene to reverse a decision on sanction reached by a chairman of a disciplinary inquiry who has been appointed by them. A good example in this regard is whether the decision reached by the chairman of the inquiry has been induced by corruption. In the public interest, this had to be so. However, the courts will have to constantly endeavour to ensure that the right of senior authorities in such an organisation to reverse, or approach a court to reverse, such a decision on sanction. [sic] (emphasis added) The BMW case had opened the door for a second disciplinary enquiry as a way for the employer to achieve what was fair under the circumstances, but added that this would be fair only under exceptional circumstances. The present case, said the Labour Appeal Court, presented exceptional circumstances as envisaged in the BMW decision and the employer had a right to approach to the Labour Court to try and change the decision on sanction: [17] In the BMW case, supra, this Court, in the majority judgment, held that, where there are exceptional circumstances, an employer is entitled to seek to change a decision of a Page 14

disciplinary inquiry. In my view, if one has regard to the multiplicity of the charges of misconduct of which the second respondent was found guilty, their seriousness and the amount of financial loss that the second respondent caused the Department of Education, this was a case in which it was justifiable for the employer to take steps aimed at changing the sanction imposed by the first respondent. Counsel for the second respondent conceded that there are cases in which it would be justified for the employer to seek to have the decision of the disciplinary inquiry changed. He submitted, however, that this was not one of those. As stated already, in my view, if there are such cases, this is definitely one of them. It was argued that the chairperson had exercised a discretion in imposing a sanction of a final written warning. Even so, said the Court, the chairperson s conclusion that these charges warranted only a final written warning was a conclusion that could only be reached by someone who did not exercise any discretion at all or who acted arbitrarily and who did not apply his mind to the issues at all. As administrative action, this was a decision no reasonable person could take and the decision to impose a final written warning was not just unreasonable but grossly unreasonable. In spite of the double jeopardy rule, the Labour Court now readily accepts that the employer can review a disciplinary outcome and replace a sanction of a final written warning with a sanction of dismissal. In Rustenberg Base Metal Refiners (Pty) Ltd v Solidarity & others [2008] 12 BLLR 1223 (LC) the employee was charged with sexual harassment, using abusive language and even assault. The employee was found guilty of the charges, but only received a final written warning. The matter was eventually referred to arbitration in stages, and one of the preliminary questions that had to be decided was whether the employer was indeed entitled to revisit its own disciplinary proceedings. The arbitrator, based on the fact that the disciplinary procedure was not set in stone, confirmed that the employer was permitted to deviate from the code for exceptional and compelling reasons. One such reason would be shockingly inappropriate outcome this would suggest that the chairperson of the disciplinary enquiry failed in his/her duties. Employees should not be allowed to snatch a bargain such as this, and a hearing to cure a material irregularity was not against public policy. The Labour Court upheld the arbitrator s decision. This decision is important for a number of reasons. It shows, firstly, that an employer need not rely on the substructure of administrative action in order to address a patently inappropriate disciplinary sanction. It also casts some light on procedural aspects. Not happy with the outcome of the initial disciplinary enquiry, the employer appointed another chairperson to review the outcome of the first enquiry. But the review enquiry in this case was not a full re-hearing of the matter; both the employer and the employee were invited to make representations to the review and both did so. There was no calling of witnesses, for instance. This decision gives some support for the view that, when considering at least an unsatisfactory sanction, it is not necessary for the employer to re-stage a full reprise of the initial disciplinary enquiry, but to use a truncated procedure that is much closer to a judicial review in nature than a full re-hearing of the matter. It must be emphasised, however, that this can only really be the case if the issue lies with the sanction imposed on the employee. If the proceedings were irregular in some other way (for instance, it is patently clear that the chairperson was biased), it may well be necessary for the employer to arrange a full re-hearing chaired by someone else. It also seems that there is some relationship or link between the amount of leeway the employer has to change a sanction or to revisit disciplinary proceedings, on the one hand, and the nature of the offence itself. SATAWU obo Finca v Old Mutual Life 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) 788-5560 Fax : (021) 788-1811 e-mail : cll @ workplace.co.za ISSN-1995-218X 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 15

Assurance Company (SA) Ltd & another [2006] 8 BLLR 737 (LC) related to a racist incident in the workplace. A white female employee complained about having to work near two black colleagues. A disciplinary enquiry followed and the employee concerned was dismissed. It transpired, however, that the white employee s superior and friend had already given her a verbal warning. It was the complainant who insisted that the matter be taken further. The chairperson of the internal appeal hearing set aside the employee s dismissal, the main reason being that she had suffered double jeopardy by being tried for the same offence. Much of the decision focuses on the issue of racism and the Labour Court makes only a brief genuflection in the direction of the BMW decision, saying that the Labour Court was not entitled to set aside the decision of the chairperson of the appeal process in this case, as it would be tantamount to the Labour Court dismissing the employee and the Labour Court should not be forced to dismiss an employee at the behest of a third party, such as the complainant in this case. Making recommendations In most cases the chairperson of the disciplinary enquiry makes a final decision not only as to the employee s guilt, but also in respect of the sanction to be imposed. But there are cases where a chairperson makes only a recommendation which the employer can then choose to implement or not. In some organisations, this is specifically provided for, and it is commonly associated with the use of an external chairperson. If it is indeed the case that the chairperson makes a recommendation only, the employer has considerably more scope to engage in a review process of the disciplinary process and its outcome. The employer may choose to impose a completely different sanction, for instance. In Wium v Zondi & others [2002] 11 BLLR 1117 (LC) the employee failed to disclose a past conviction for theft when applying for a post as deputy principal. When his past caught up with him, the employee was charged with knowingly making a false statement. The chairperson of the enquiry recommended that the employee be given a final written warning, but senior managers in the Department of Education refused to follow the recommendation and dismissed the employee instead. On behalf of the employee it was argued that imposing a sanction of dismissal, in the light of the chairperson s recommendation, was a gross irregularity because it exposed the employee to double jeopardy. The employer had, after all, substituted the chairperson s recommended sanction without calling for additional evidence in mitigation or aggravation or giving the employee an opportunity to call other witnesses. The Labour Court attached some importance to the fact that the chairperson made only a recommendation: the initial disciplinary process had not led to the imposition of a sanction at all, merely the recommendation of a sanction. This should not be taken to mean, however, that the employer has carte blanche when dealing with a disciplinary process and it s outcome. Especially in the public sector, it will be necessary for the employer to give good grounds (and comply with the requirements of reasonableness) before changing the sanction, for instance. Even in the private sector, it may well be necessary for the employer to provide sound reasons why it chose not to implement the chairperson s recommendations and to give reasons for changing the sanction from a warning to a dismissal, for instance. But it must be said, however, that it is, from a purely legal perspective, considerably easier for the employer to revisit a disciplinary outcome if the chairperson is expected to make recommendations only: after all, a recommendation is not a decision, and it leaves the employer with some room to manoeuvre. CCMA and bargaining council awards There is a plethora of arbitration awards that deal, directly or indirectly, with the double jeopardy rule. For the most part, arbitrators find that an infringement of the double jeopardy rule renders a subsequent dismissal unfair. For present purposes, it is perhaps more interesting to focus on some recent arbitration awards where it was found that the dismissal was not unfair. In YF / Multichoice Subscriber Management Services (Pty) Ltd t/a MWEB [2008] 11 BALR 1106 (P) a manager was charged with sexual harassment after trying to persuade a trainee to have sexual intercourse with him. A disciplinary enquiry took place and the chairperson came to the conclusion that the employee concerned was not guilty of sexual harassment. The employer, dissatisfied with the outcome, sought legal advice, and was duly advised to conduct a second enquiry. The chairperson of the Page 16

"It must also be borne in mind that unless an employer appoints the chairperson of a hearing as its agent, it is not bound by the decisions of that chairperson. At best the chairperson can make recommendations." JAMAFO obo NERO v Pick n Pay second enquiry found that the employee was indeed guilty of sexual harassment and, based on this decision, the employer decided to terminate the employee s service. After citing the Labour Appeal Court decisions mentioned above, the arbitrator concluded that the employer was fully justified in holding a second enquiry: the employee was facing serious charges and the employer had a duty to prevent similar conduct. The employer s dissatisfaction with the finding of the chairperson of the first enquiry was justified: it would have been unfair to saddle the employer with a decision that was clearly incorrect. Again, it was a case of the chairperson of the first enquiry making a recommendation only, and the arbitrator stressed the fact that the employer was not bound by the findings and recommendations of the chairperson. Arbitrators appear more than willing to accept the holding of a second enquiry if the chairperson of the first enquiry can only make recommendations and this point now seems to be beyond dispute. The CCMA commissioner in JAMAFO obo NERO v Pick n Pay (2007) 28 ILJ 688 (CCMA) put it as follows: The above [cases], in my view, settles the principle that an employer may dismiss an employee even though the chairperson of a hearing had recommended otherwise. It must also be borne in mind that unless an employer appoints the chairperson of a hearing as its agent, it is not bound by the decisions of that chairperson. At best the chairperson can make recommendations. The fact that senior management does not agree with such finding does not necessarily render a subsequent dismissal unfair. It is ultimately the employer and not the chairperson that decides whether to dismiss or not. (at 692) The nature of the initial proceedings may also play a pivotal role. In Monyakane / SABC [2008] 9 BALR 883 (CCMA) the employee argued that one of the charges relating to sexual harassment had been dealt with in terms of the employer s sexual harassment policy and that it was regarded as a closed issue. Charging him with misconduct three years later was therefore unfair. In this case, however, the answer to the issue lay in the employer s sexual harassment policy which provided for an informal procedure to be followed by formal disciplinary proceedings to be instituted against the alleged offender if the matter is not resolved to the satisfaction of the complainant. When looking at the arbitration awards, it is difficult to find a common theme or approach, as each case involves determining the exact nature and scope of the proceedings. So the question arises, for instance, whether the second enquiry is an enquiry at all, or whether it is merely the continuation of the initial enquiry. In Gouden & another / SAPS [2008] 12 BALR 1130 (SSSBC) the employer postponed the enquiry after the employee requested a clarification of the charges. The bargaining council arbitrator concluded that there was no breach of the double jeopardy rule because no final decision had been taken before the postponement. An internal appeal procedure may not constitute a contravention of the double jeopardy rule (see Solidarity obo Pienaar / JD Group Ltd t/a Joshua Doore (QwaQwa branch) [2008] 3 BALR 297 (CCMA). The question may also arise whether a manager s initial action constitutes disciplinary action and whether a subsequent enquiry and dismissal would contravene the double jeopardy rule. In Mokoena / SAPS [2007] 9 BALR 792 (SSSBC) an inspector was dismissed for making a false statement regarding the identification of a vehicle. The employee claimed that he had been verbally warned for what he saw as a mere mistake in that his superior said that it should never happen again. If this were a once-off event, the matter would probably have been left there, but the employee s superior noted that this was the employee s second false report and this led to the second enquiry. The arbitrator also noted that the employee s superior had never said that he was issuing a warning at all: the Page 17

"The majority decision of the LAC in BMW, supra, rescues employers from the untenable situation of having to retain in employment a person whose conduct is such that the trust relationship has broken down entirely, following an unduly lenient disciplinary decision." Solidarity obo Van Rensburg / Rustenburg Base Metal Refineries employee simply assumed that he was receiving a warning. The question may also arise whether the second disciplinary enquiry relates to the same disciplinary charges or whether they in fact constitute an initial hearing on entirely different charges. In Pillay / University of KwaZulu Natal [2008] BALR 743 (CCMA) the employer appointed a number of investigating committees and enquiries. The main issues were the manner in which the employee acquired his Master s degree and whether the employee was guilty of sexual harassment. But it transpired that there was only one disciplinary enquiry: the other commissions and tribunals were appointed by the employer to conduct investigations. The employee argued that once an initial report had been filed by one of the commissions, the employer should have implemented the recommendations made in that report. But there was nothing, said the commissioner, that precluded the employer from deciding otherwise. One of the reasons the employer established a second tribunal was to establish whether there was new evidence or further information that could play a role. In Solidarity obo Van Rensburg / Rustenburg Base Metal Refineries (Pty) Ltd [2007] 9 BALR 874 (P) the employee was charged with sexual harassment, using abusive language and assault. In the disciplinary enuiry the employee was found not guilty on the charge of sexual harassment, but guilty on the charges of assault and using abusive language. The chairperson imposed the sanction of a final written warning valid for six months. As is to be expected, the employer was not happy with the sanction, finding it unjustifiable and the employee was informed accordingly. The employee was also informed that the employer had decided to appoint a new chairperson to review the matter. Written and oral submissions were made by the employer and, eventually, by the employee. The new chairperson confirmed the findings on the use of abusive language and assault, and substituted a sanction of dismissal for the final written warning. The private arbitrator, referring to the BMW decision, said the following: 16. The majority decision of the LAC in BMW, supra, rescues employers from the untenable situation of having to retain in employment a person whose conduct is such that the trust relationship has broken down entirely, following an unduly lenient disciplinary decision. That situation would almost without exception arise as a result of one of the following circumstances: 16.1 that the facts at the disposal of the employer at the time of the enquiry did not adequately illustrate the gravity of the employee s misconduct (as in BMW); or 16.2 the disciplinary chairman s decision was so aberrant, having regard to the facts before him, that one could reasonably infer either mala fides or a failure to apply the disciplinary code or a failure to apply his mind to the task at hand. The employer s disciplinary code and what it contained was of some importance for the arbitrator, and he said, in passing, that it was not clear from the cases whether an employer is entitled unilaterally to review its own disciplinary procedure if this is not provided for in the disciplinary code. The arbitrator was, however, prepared to assume, in favour of the employer, that this was indeed possible, and one of the stated reasons for this approach was the following: 19.3 It is clearly the duty of a disciplinary chairman to apply the disciplinary code and procedure to the best of his ability, to give effect to the standards of conduct reasonably laid Page 18

down by the employer and properly and diligently to apply his mind to the facts and issues before him. An outcome which is shockingly inappropriate, inevitably leads to the inference that the disciplinary chairman has failed in one or more of these duties. On the facts of the case, the arbitrator concluded that the employer could in fairness review, set aside or impose a more serious sanction (dismissal) than the sanction imposed by the internal chairperson who had been appointed by the employer to chair the disciplinary enquiry. This brief and by no means exhaustive survey of recent cases should not create the impression that commissioners and arbitrators invariably distinguish a case as not falling within the ambit of the double jeopardy rule. There are numerous awards, in the same time period, in which the employee s dismissal was found to be unfair because the employee had been subjected to disciplinary proceedings twice for the same charges.it will always be necessary for the employer to give a sound and coherent reason for wanting to depart from the decision of a disciplinary chairperson.. In Feliti / Emalahleni Municipality [2006] 4 BALR 371 (CCMA) the employer had revoked a decision taken at an earlier disciplinary enquiry before initiating the proceedings that eventually led to the employee s dismissal. Correctly, the CCMA commissioner stated that the principle of fairness as set out in the decisions of the Labour Appeal Court entailed a consideration of the fairness and validity of the reasons which compelled the employer to do so. The commissioner could find no reason for the employer s revisiting its own disciplinary process on the same charges, nor could he find any exceptional circumstances that would justify the employer s doing so. The commissioner concluded that the second enquiry constituted double jeopardy and, on this alone, the employee was entitled to reinstatement. The most recent award at the time of writing is Nemagovhani / Multi Projects [2009] 3 BALR 282 (CCMA). Here too, the employee s dismissal on a charge of insubordination, was found to be unfair. The employee was issued with a final written warning as a result of his refusal to drive the employer s vehicle; this warning was to be valid for a period of 9 months. The next day, however, the employee was issued with a notice to attend a disciplinary enquiry regarding exactly the same charge. When asked why the employee was subjected to a disciplinary enquiry when he had already received a final written warning, the manager giving evidence replied that management had decided that he was going to be fired. It was, said the CCMA commissioner, a classic case: "4.5 In the present matter, I am not dealing with a quick ill-informed and incorrect decision of a chairperson (vide Branford). I am dealing with a situation where Pullen, after having already (on 16 September 2008) punished the employee for disobeying an order (vide P1b) on 15 September 2008, issued the employee with a notice to attend a disciplinary hearing for disobeying an order (vide P1a). The punishment which was imposed on the employee following the disciplinary hearing aforementioned was the sanction of dismissal. This is a classic example of autrefois acquit/ double jeopardy/res judicata and, unless exceptional circumstances (per Conradie JA in BMW v Van der Walt) are shown to exist in the present matter, the holding of the disciplinary hearing (and the employee s subsequent dismissal) must clearly be unfair." It is difficult to distil any common theme or approach from the CCMA and other arbitration awards, and they only confirm that a finding on the issue of double jeopardy is virtually exclusively fact-based. But one does have the sense that the CCMA commissioners and arbitrators are not dealing so much with the issue of fairness as articulated in the BMW decision. Instead, the question asked (and answered) is for the most part whether the double jeopardy rule applied to the factual situation in the first place. The focus seems to be whether the facts disclose a breach of the double jeopardy rule, or whether the second or review proceedings did not amount to double jeopardy in the first place. Making sense The norm remains a single disciplinary enquiry conducted in compliance with the employer s disciplinary code (Frost v Telkom SA (2001) 22 ILJ 1253 (CCMA)). It is only by way of exception that the employer has a need to conduct a second enquiry or to revisit its own disciplinary process. There appear Page 19

to be two broad categories of cases where this need arises. Firstly, and most commonly, the employer may be dissatisfied only with the sanction imposed by the chairperson. The question is then simply whether the employer can interfere with the sanction and the sanction only, while accepting the chairperson s findings on facts and on whether the employee committed the offence in question. Almost invariably, the question will be whether the employee should have been dismissed or whether the employee should receive nothing more serious than a final written warning. Secondly, and this is uncommon, the employer may take the view that the process in the disciplinary enquiry was flawed or irregular to a significant extent. This can include a range of possibilities, including situations where the chairperson was patently biased or where the chairperson failed to apply his/her mind to the facts of the case (to use the language of review) or, broader, an irregularity of some nature scuppered the disciplinary enquiry. The question here is a much more difficult question: how and to what extent can an employer interfere with factual findings or other irregularities in disciplinary proceedings? Could or should the employer scrap the first enquiry altogether and simply start afresh (which may, practically and legally, be the best approach to take)? Or can matters be fixed using an internal review process? It is clear, by now, that there is some leeway for an employer to revisit its own disciplinary processes. But the rules are certainly not clearly articulated and the amount of leeway the employer will have will differ from case to case. But there are some conclusions that can be drawn from this review of the cases. Firstly, it seems that arbitrators accept that when the chairperson of the initial enquiry only makes a recommendation, the employer retains some discretion to either accept and implement the recommendation or to hold another enquiry. This is clearly the easiest case, leaving the employer with the greatest degree of discretion to accept or not accept the sanction suggested by the chairperson. Often, this approach is taken in the case of external chairpersons, but there is, in principle, nothing preventing an employer from using this approach in an internal enquiry, provided that provision is made for this in the employer s disciplinary code and procedure. It is somewhat harder for the employer to change a disciplinary sanction (and the sanction only) in the case where the chairperson makes a binding decision. Here the primary question is whether the outcome is shockingly inappropriate. Perhaps the Rustenberg Base Metal Refiners decision (above) goes furthest in this regard, providing some authority for the view that an employee should not be permitted to get away with a bargain and that the employer has a right to remedy material irregularities in disciplinary processes. This decision also offers some authority for the view that it is not necessary for the employer to embark on a replay of the disciplinary process altogether, but that a truncated review process, even if it is an internal process, is a possibility. And there are the obvious issues that employers need to bear in mind. Simply saying that management had decided that the employee would be dismissed will not be good enough. It will always be necessary for the employer to show why it interfered in its own disciplinary process or sought to change the outcome. Giving an employee an opportunity to respond before the sanction is changed, for instance, is good practice and may go some way in dealing with perceptions of double jeopardy that may arise: that the employer simply unilaterally changed the sanction because it did not like it. A revisiting of a disciplinary process will be fair if it falls within the boundaries of fairness, and fairness is a two way street. The essence of fairness for an employee in this situation is to have an adequate opportunity to respond to the allegations made by the employer. The essence of fairness for an employer is similar: to have an adequate opportunity to present the employee with its allegations and to have a reasonable, just, coherent and appropriate sanction considered and imposed. It will be fair, as our law now stands, to follow one disciplinary process with another if it is fair to do so. This statement of principle is fine, but it does not resolve any practical questions. To say that what would be fair depends on the circumstances of each case is stating the obvious. It would not be fair for an employer to simply keep repeating disciplinary processes until it gets the result it wants (dismissal of the employee) and for no other reason. Fairness also dictates that the employer s interests are taken into account when loading the scales. Carl Mischke Page 20