Employers have still not universally grasped the meaning of a bona fide consultation process when undertaking a consultation process pursuant to a proposed retrenchment. I still, in my own firm, still come across employers who are of the understanding that a retrenchment consultation process can be completed in a single sitting. This amounts to an employee going to work on any given day full of the joys of Spring, and going home retrenched.
The applicable retrenchment law, principally section 189 of the Labour Relations Act and the Code of Good Practice” Operational Requirements , places a much more procedural burdensome process on employers contemplating retrenchment. It is a process which requires thoughtful contemplation and consultation, in a manner which, on subsequent scrutiny, will show that the consultation process was a genuine consensus seeking process. Seeking consensus on what?
Well, to begin with, consensus on ways of avoiding or delaying the proposed retrenchment, and if this is not possible, ways of mitigating the adverse effects of any pending retrenchment. Furthermore, the minutes of consultation meetings must show that a wide range of issues were consulted over, including selection criteria and the severance pay to be paid.
It is typically, but not only, the retrenchment consultation meeting minutes which are relied upon to determine the true nature of a consultation process. Put differently, do the consultation minutes reflect a robust consultation process, or do they show that minimal time was spent consulting with little if any give and take on the part of the employer?
The Labour Court judgment in Jenkin v Khumbula Media Connexion (Pty) Ltd (Case No. D914/08) addressed the question of what may be referred to as ‘microwave retrenchment’.
The applicant had been retrenched after one consultation meeting which, the Court held, left much to be desired. The Court criticised the respondent employer for having retrenched the applicant “after only one meeting had taken place”. The Court quoted the Labour Appeal court which had, in Johnson & Johnson (Pty) Ltd v CWU (1999)held that “… a mechanical check list kind of approach to determine whether s189 has been complied with is inappropriate”.
Returning to the Khumbula Media Connexion case, the Labour Court added that “the meeting held with the applicant was not sufficient to constitute consultations as required by section 189”.
Employers, in the main, lose retrenchment cases due to either inadequate consultation and/or the adoption of subjective (rather than objective) selection criteria. The procedural requirements to ensure a procedurally fair retrenchment are not overly burdensome. There is very little reason why a retrenchment process cannot, with careful consideration of the retrenchment provisions of the Labour Relations Act, be implemented in both a substantively and procedurally fair manner.
In short, a process which seeks to give a veneer of legal compliance will be viewed as precisely that, a hurried, and ultimately procedurally unfair, hit and run rush job
Disciplinary procedures typically have supplementary appeal procedures which make provision for employees who feel unjustly wronged by a disciplinary hearing to appeal the hearing verdict and/or sanction. But what if it is in fact the employer who feels aggrieved on completion of a disciplinary hearing.
It’s not beyond the realms of possibility that an employer objects to a disciplinary hearing verdict or sanction. Chairpersons are capable of rendering disciplinary hearing outcomes which are clearly ill considered. Employees have recourse via the employer’s appeal procedure, but the employer on the other hand is invariably faced with a conundrum when a hearing outcome is objectively inappropriate.
Our Courts have dealt with this state of affairs in the past, and did so once more in the Labour Court matter of Toyota SA Motors (Pty) Ltd v CCMA & 2 others [Case No. D276/10]. This case addressed, inter alia, the fairness, or otherwise, of convening a second disciplinary hearing in respect of the same alleged act of misconduct. Linked to this is the question of whether rehearing a case in regard the same act of alleged misconduct, amounts to double jeopardy.
In this case, in essence, the employee was originally issued a written warning for the misconduct he was found guilty of in an original disciplinary hearing, and subsequently dismissed when found guilty of the same offence in a subsequent rehearing of the case.
The employee deemed this to amount to double jeopardy. The CCMA Commissioner at the subsequent arbitration hearing agreed with the employee and held that his dismissal was substantively unfair on grounds that the employer had no right to rehear the case.
The Labour Court held, on the other hand, that “the test for determining when a fresh enquiry can be held is a matter of fairness and not whether exceptional circumstances exist”, or has been held prior “a second enquiry would be justified if it would be fair to institute it”.
In the Labour Appeal court case of Branford v Metrorail services (Durban) & others , the Court held that “.. (i)t would manifestly be unfair for the company to be saddled with a quick ill informed and incorrect decision of its employee who misconceived the seriousness of the matter and hurriedly took an inappropriate decision leading to an equally inappropriate penalty.
That’s not to say that employer’s may simply rehear disciplinary hearings until they achieve a pre-determined outcome. It is also possible to incorporate a provision in appeal procedures for management to be entitled to appeal hearing outcomes. This may go some way to providing a solution for employers when faced with ill considered hearing outcomes.
All cases of alleged unfair dismissal are assessed on the basis of two criteria, substantive (which we look at next week) and procedural fairness.
Whilst an ex-employee’s remedy for procedural unfairness does not include reinstatement, what is available to an employee deemed to have been procedurally unfairly dismissed is financial compensation up to twelve months salary.
So it makes sense to ensure that a dismissal is not only effected for a fair reason, but has also been executed in a procedurally fair manner; but what does this mean? In short, it’s the ‘how’ of disciplinary hearings.
Well, to begin with, employers are required to ensure that they comply with their own disciplinary procedures. Put simply, employers must comply with any disciplinary procedure which has been compiled in-house and been profiled to all staff as the company Disciplinary Procedure. Any deviation will typically render any dismissal (procedurally) unfair, regardless of the substantive merits of the case.
Procedural fairness is a critical requirement of all disciplinary hearings in light of the fact that common law requires that any employee accused of committing an act of misconduct (ie: a blameworthy act or omission), must be heard before a verdict is arrived at.
It has been submitted that it stands to reason that an employee’s version must be known by the hearing chairperson prior to his or her fate being determined.
Written charges must be issued to an alleged offender in a form and language s/he understands; if interpreters are required for this purpose then so be it.
Next, the employee must be afforded sufficient time to prepare for a hearing, normally viewed as no less than forty eight hours written notice of the hearing.
The chairperson should be objective, with no vested interest in the verdict and/or sanction. Chairperson’s should bear in mind that although they essentially have unfettered authority and powers in a disciplinary hearing, their verdict and/or sanction may well need to withstand independent scrutiny by a (CCMA or Bargaining Council) Commissioner should the outcome be subsequently challenged as having been unfair.
Decisions taken by chairperson’s need not be perfect, but they must be reasonable and rationale.
Whilst a disciplinary hearing procedure need not be conducted in an overly technical manner, certain procedural protocols must none the less be observed. For example, witnesses should testify and be exposed to cross-examination.
Guilt is to be determined on the ‘balance of probabilities’, which simply means that the chairperson must determine whether or not the employer complainant has proved, or not, that the employee is ‘probably’ guilty of the alleged misconduct.
Should the employee be found guilty, an appropriate sanction must be selected. Sanctions are selected on the basis of the following criteria, (1) the gravity of the misconduct in question, (2) disciplinary code guidelines, (3) mitigating factors, and (4) aggravating factors.