Should an employer hold the view that an employee has committed misconduct and breached the Company’s Code of Conduct, the employer may suspend the employee and should consider inter alia:

• Whether, the employee prima facie (on face value) committed an act of misconduct;
• Whether the misconduct by the employee was of a serious nature;
• The possibility of the employee tampering with evidence;
• The possibility that the employee may interfere with witnesses; and
• Whether the employee may commit similar offences if the employee is not suspended.

A suspension would be rendered unfair in the following circumstances:

• If the employer did not give the employee an opportunity to state why he should not be suspended and accordingly did not adhere to the audi alteram partem;
• Where the employer did not comply with rules and procedures governing suspensions;
• Where the suspension imposed on the employee was for an unreasonable period of time; and
• Where there was no valid reason for the suspension.

In this instance, the employee may refer such suspension to the CCMA.

Where it is not appropriate to suspend an employee, the employer may issue a charge sheet against the employee for the misconduct. The charge sheet should contain a proper and detailed account of the charge which would enable the employee to prepare for the hearing. In addition to this, the charges should provide the employee at least 48 hours of notice of the hearing and advise the employee that he/ she is entitled to employee representation.

NOTE: Most company policies do not permit legal representative at disciplinary hearing unless an agreement is reached to the contrary or the independent chairperson pursuant to an application permits such legal representative.

A disciplinary hearing may be conducted by the company itself or alternatively chaired by an independent chairperson. Both parties are required to prepare their respective case (i.e. obtain witnesses and prepare their case bundles consisting of the documents that prove or disprove their case).

It is advisable that prior to the hearing the employee understands the charges. Should the charges be vague the employee may ask the employer to clarify the charges and send the employer a request for further particularity regarding the charges.

The employee is entitled to request documentation relevant for the preparation of his case and request documents from the employer to rebut the allegations against him /her including requesting a copy of the Disciplinary Code.
It is the employer’s onus to prove on a balance of probabilities that the employee is guilty of the charge.

• An independent chairperson will preside over the hearing;
• The employer will begin;
• Usually the protocol of the hearing is as follows:
  • The chairperson introduces himself;
  • The employer leads his case;
  •  The employee will have a right to cross –examine the Employers witnesses and if the employer, deems it fit the Employer may re – examine his witnesses;
  • Once the employer has led its case it is the employee’s opportunity to lead his/her case; and
  • After which the employer is given an opportunity to cross – examine, if necessary.
• It is suggested that employees seek legal advice prior to this hearing.

• The employer is invited to submit evidence in aggravation and mitigation.

• Pursuant to considering aggravating and mitigating circumstances the chairperson will hand down an appropriate sanction. The employee may only appeal such sanction if the Companies’ policy allows for an appeal procedure

• If the employee is of the view that he was unfairly dismissed he may refer the dispute to the CCMA (unless the employee’s industry falls within a bargaining council, then such referral must be made to the application to the relevant bargaining council).

• CDV Attorneys can assist employers in opposing CCMA proceedings. Both the employer and employee must keep in mind that it is the Commissioner’s decision whether to permit legal representative in a CCMA hearing.

• The Labour Relations Act permits employers to dismiss employees for ‘operational requirement’, also known as retrenchments. ‘Operational requirements’ are defined by the Act as ‘requirements based on economic, technological, structural or similar needs’. It is therefore essential to note that an employer can retrench employees in cases where the company is experiencing financial hardship but also in cases where the employer wants to reduce costs and/or wishes to increase the profitability and productivity. While the legislator does not intend to force employers to keep on employing redundant employees, Sections 189 and 189A of the Labour Relations Act are intended to ensure that retrenchments are not resorted to where they can conceivably be avoided. Section 189 of the Act places a statutory requirement on employers to engage in a consultation process with affected employees and/or their representatives, before embarking on the retrenchment programme. Although Section 189 provides the subjects for consultation, the real criteria for fairness is not whether the employer has gone through the motions of consulting over the issues listed in Section 189(2) of the Act, but whether the attempts to consult were real and whether the purpose of Section 189 has been achieved.

• Section 189(1) of the Act requires that the employer must commence with the consultation process when ‘contemplating’ dismissing employees for operational requirements. One of the reasons for this is to provide employees at an early stage with the opportunity to consider alternative job opportunities before the commencement of the formal consultation process. There is, therefore, a statutory requirement that employers must engage in consultation with the affected employees and/or their representatives prior to taking the final decision to retrench.

The consultation process must be real and the efforts to consult must be genuine.

• The parties must engage in a joint consensus-seeking process and must attempt to reach consensus on aspects such as appropriate measures to avoid the dismissals, to minimize the number of dismissals, to change the timing of the dismissals and to mitigating the adverse effect of the dismissals. Parties must also consult on the severance pay and the method for selecting the employees to be dismissed.

Failure to consult in good faith can result in a very expensive and costly lesson to the employer. In the case of Enterprise Foods (Pty) Ltd v Allen & others (2004) 7 BLLR 659 (LAC) this was just the case.

Enterprise Foods (Pty) Ltd (Enterprise) operated a business in the processed meat industry. In 1993 it merged with another company, which resulted in the acquisition of several processing plants and abattoirs. As a result of the merger there appeared to be a duplication in function at various plants and for this reason the company were in need of a process of rationalisation.

During 1998 the Pietersburg plant was upgraded and according to the employer it had always been the plan to divert the production of polonies and viennas from the Montague Gardens plant to the upgraded plant in Pietersburg. The employer contended that it did not intend to close down the Montague Gardens plant, although approximately 40% of its production would have been diverted to Pietersburg. According to Enterprise Foods (Pty) Ltd (Enterprise) the decision to close the Montague Gardens plant was precipitated by a shareholder demand to reduce costs in order to ensure the achievement of a profit target, namely a 25% return on Enterprise’s funds.

Consultations took place during July 1999 and the affected 733 employees’ contracts were terminated on 31 August 1999.

As far as the substantive fairness of the retrenchments was concerned, the Court found the retrenchments to be fair. However, the retrenchments were procedurally unfair. The Court found that no proper consultation took place and that the decision to close the Montague Gardens plant was taken prior to the commencement of the consultation process. As a result of the procedural unfairness of the retrenchments, the retrenched employees were each awarded 12 months’ remuneration calculated at their respective rates of remuneration on the date of dismissal.

A distinction must be made between misconduct and incapacity. Misconduct is when an employee breaks a rule of a company and is handed down a sanction pursuant to disciplinary proceedings. An employer cannot treat incapacity as if it were misconduct. The incapacity enquiry is dependent on three questions which arise when determining whether the employee is incapacitated as a result of poor work performance, specifically the following:

• Whether or not the employee failed to meet a performance standard;
• If the employee did not meet the required performance standard, whether or not – the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; and
• the employee was given a fair opportunity to meet the required performance standard.

• CDV Attorneys will provide advice related to the procedure for referral as well as discuss the two-tier basis for referring the dispute to the CCMA or the bargaining council during our first consultation.