As a rule, employers may not interfere with the outcome of a disciplinary hearing where the chairperson is empowered to make a final decision.  This, was confirmed in South African Revenue Services v Commission for Conciliation Mediation & Arbitration & others [2016] 3 BLLR 297 (LAC), in order to protect employees from arbitrary interference with discipline in a fair system of labour relations.

This issue was addressed in a recent Labour Court case – Technology Innovation Agency v Segopotso Mashapo & 2 others (Case no. JR449/19).

The employee had been issued a written warning for insubordination.  The employee was “displeased” with the written warning, and lodged an internal appeal.  This, puzzlingly, led to a formal disciplinary hearing being convened. As noted in the judgment “It is not apparent from the record as how the appeal process concluded and what happened to the impugned written warning”.

The disciplinary hearing was chaired by an independent chairperson who found the employee guilty and recommended a sanction of a final written warning, valid for a period of 12 months. However, management than corresponded with the employee, informing him that management had ‘expressed its reservation’ on the recommended sanction of a final written warning “and invited him to make written submissions as to why the sanction of final written warning should not be substituted with a sanction of dismissal”.

Notwithstanding the employee’s objection to this, management substituted the final written warning with the sanction of dismissal.

The dismissal of the employee was, unsurprisingly, found to have been substantively unfair, and the employee was awarded 6 months compensation.

The Labour Court judgment concurred with the CCMA Commissioner – “It is inexplicable that a sanction of a written warning would be catapulted into a dismissal when the circumstances that led to the charges remained the same”.

There’s a lesson here for employers.  As we routinely advise clients, always build a managerial appeal into a company appeal procedure. This may not have quite assisted the employer in this case, but it does as a rule afford employers a legitimate opportunity to revisit disciplinary hearing outcomes they consider ill advised.