In the recent case of BEMAWU v SABC (J 2239/2015) the applicant trade union sought to interdict a disciplinary process against 35 of its members. The disciplinary process arose from allegations of fraud on a massive scale perpetrated against the SABC Medical Aid Scheme, and the SABC envisaged instituting disciplinary action against more than 100 employees.
Given the number of employees involved, the SABC adopted a disciplinary process which was different to that set out in the disciplinary code, which mentioned individual hearings presided over by a panel of three chairpersons with viva voce evidence and the opportunity to cross examine witnesses. Instead, it adopted a process where the individual employees would be presented with the allegations against them in writing; they would then be allowed an opportunity to make written representations in response; and those representations would then be considered by an independent chairperson. That chairperson would then make the decision whether or not the individual employee was guilty of the alleged misconduct. If so, the employee would then be given an opportunity to make submissions regarding the appropriate sanction. Finally, the chairperson would make a recommendation on sanction to the SABC.
The union sought to interdict this procedure, arguing that it was an impermissible deviation from the provisions of the disciplinary code which formed part of all employees’ contracts of employment.
The Labour Court examined the wording of the disciplinary code to see whether the procedure mentioned in it was contractually binding on the SABC. It noted that the SABC was obliged to ensure the disciplinary process it adopted was fair and in accordance with the rules of natural justice. The detail regarding individual hearings, a panel of 3 chairs and cross examination however was phrased such that it was only a recommendation. The only peremptory provision in the code was that the disciplinary process should be formal in nature. The court noted that exceptional circumstances had necessitated a procedure other than the normal procedure envisaged by the disciplinary code. Those circumstances were the number of employees involved and the operational efficiencies of the organisation.
The court found that the process envisaged by the SABC was fair and in accordance with the rules of natural justice. The court held that since the SABC was dealing with similar allegations of misconduct against more than 100 employees, it would be unworkable to adopt the normal process where each employee would be heard individually. The court held further that although the process adopted by the SABC was different from usual it was still a “formal disciplinary hearing,” albeit on paper without hearing oral evidence or argument.
The court was satisfied that it was a procedurally fair process which was in accordance with the requirements of the Code of Good Practice of the Labour Relations Act and consistent with the approach endorsed in the well-known case of Avril Elizabeth Home for the Mentally Handicapped v CCMA 2006 (27) ILJ 1644 (LC). In that case the court said the following:
“[T]he Labour Relations Act ... recognises not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with the right to expeditious arbitration on merits...”
Nicci Whitear-Nel (BA LLB)
Senior Lecturer – School of Law, University of KwaZulu-Natal