Workplace lawfare in disciplinary inquiries is sadly all too familiar. The process is often (unnecessarily) fraught with issues — dubious sick notes, challenges to the charges, changes to representatives, applications for legal representation, accusations of biased chairs and even disagreement about the venue.
This can go on for weeks and months, costing time and money. It is also destructive to workplace relationships.
Functions of whole departments are often affected, particularly where discipline involves managers or executives.
The scenario above is unfortunately the reality more often than not. However, companies can change this.
A recent innovation is the conduct of a disciplinary inquiry through written submissions, commonly referred to as an "inquiry by statement of case", rather than the conventional approach premised on oral evidence.
It works like this: management, in a written statement, tells the employee of the complaint (or charges) against them, giving the details and why it is viewed as misconduct. Normally attached to this statement are supporting documents.
The employee is invited to respond to the complaint in writing by a specific date. If necessary, the parties may exchange further documents and information.
Once all written submissions have been received (normally by HR), they are sent to an impartial chair who decides if the company has proved its case; if it has, the chair determines a sanction, either on the basis of arguments already received or after calling for further submissions.
The "statement of case" method is suited to misconduct such as fraud, corruption and other dishonesty-related offences, which are often heavily dependent on documentary evidence.
It is not suitable for employees with limited literacy skills.
A disciplinary by way of a statement of case is new in the labour law arena. It does, however, find support in the Labour Relations Act, in particular in its code of good practice: dismissal section; in the International Labour Organisation convention on termination of employment; and in recent case law.
In a labour court case last year, Mnisi & Others vs the SABC, 113 employees of the broadcaster challenged a decision to dismiss them on allegations of medical aid fraud.
The disciplinary inquiries were held by way of written representations (with affidavits and supporting documents from the SABC, which employees were required to respond to in writing).
The employees argued there had been procedural unfairness.
The court disagreed, stating that they had been offered an opportunity to state a case in response, and that a formal, conventional inquiry was not required.
The union representing the employees, the Broadcasting Electronic Media & Allied Workers Union, launched an urgent application to interdict the SABC from proceedings by way of a statement of case. The late judge Anton Steenkamp, who heard the case, dismissed the union’s application.
"Although the process adopted by the SABC in this case is different from that it normally adopts, I don’t think that it can be said that it is ‘not a formal disciplinary hearing’," Steenkamp said.
"It envisages a hearing chaired by an independent chairperson, albeit on paper without hearing oral evidence or argument. In my view it satisfies the requirement set out in the [LRA’s] code of good practice: dismissal."
Our courts have found the practice of a paper-based inquiry (by way of a statement of case) to be procedurally fair, as it reflects the audi principle (the right to be heard), which underpins one of the tenets of natural justice.
Employers such as Transnet and even the Commission for Conciliation, Mediation & Arbitration (as employers of commissioners) include a paper-based inquiry as a means to conduct a disciplinary process. Corporates are now following suit.
There is clearly a need to expedite the resolution of disputes at the workplace. Over the past three decades, they have grown in number and procedural intricacy.
When the CCMA was formed in 1996, the drafters of the LRA imagined about 30,000 disputes a year would be referred. But there were more than double this number (just over 67,000) in 1997-1998; in 2007 the number was 123,000; and last year it was about 185,000.
Since the CCMA’s formation, there have been more than 4-million workplace dispute referrals. This number excludes cases referred to bargaining councils and private agencies.
The legislature has introduced some changes to streamline the dispute resolution process. Two come to mind: in 2002 the con-arb (conciliation-arbitration) process was introduced, which enables parties to proceed from conciliation to arbitration on the same day, instead of the two processes taking place on separate days.
In 2014 the "inquiry by an arbitrator" was introduced, in which a commissioner from the CCMA, bargaining council or private agency attends a workplace and conducts the disciplinary inquiry there, and that is the end of the matter. This truncated what is usually a two-stage process (an internal disciplinary inquiry leading to dismissal, followed by the almost inevitable CCMA process) into one. In our view, the "statement of case" alternative is a third initiative that can reduce costs in both time and money and can contribute to workplace peace.
• Norton is the director of labour law at Mkhabela Huntley Attorneys; Venter is the CEO of Tokiso Dispute Settlement.
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