The well-known adage “justice delayed is justice denied” is often alleged in instances where employers fail to finalise a disciplinary process for some months or years.
Edwin Cameron, who is now a judge in the Constitutional Court, wrote an article in 1986 which was published in the Industrial Law Journal (183). He said it was essential for hearings to be held promptly as it would ensure
“[T]hat the employee can present his case effectively since delay can lead to inadequate recall on the part of the employee or to the unavailability of his witnesses. Moreover, undue delay between the occurrence of the alleged misconduct in the employers’ disciplinary response blurs the impact of corrective discipline. From the employer’s point of view promptness is necessary for the additional reasons that dispatch of a disciplinary matter allows his enterprise to move forward unhampered by the anxieties, animosities and uncertainties which pending action may produce” (My emphasis).
Although neither the LRA nor Schedule 8 of the LRA speaks to the time frames in terms of which disputes should be conducted, it is apparent from case law that the basic principle is that such disputes must be dealt with and finalised in a speedy and efficient manner.
Our courts have frequently been called upon to hear matters where an employee was dismissed long after the misconduct had come to the attention of the employer or years after the employee had applied for an appeal hearing. Questions before the different courts were inter alia the following:
- Is it unfair of an employer to delay a disciplinary or appeal hearing?
- What are the reasons for such a delay?
- What message is the employer sending?
- When is that delay unreasonable and prejudicial?
- What does it say about the trust relationship if the employee continues to work for months or years before the process is finalised and s/he is dismissed?
The Constitutional Court considered these questions again in the matter of Stokwe v MEC: Dept of Education, Eastern Cape which was handed down in February 2019.
Stokwe was instructed to attend a disciplinary hearing where she had to answer to the allegation that she had awarded a temporary transport services contract to her husband’s unregistered company, and that she had done so without the necessary authority. The disciplinary hearing was scheduled to proceed on 12 August 2010, but only started in March 2011.
When she was dismissed on 30 March 2011, she lodged an appeal. In terms of the Employment of Educators Act, a sanction may not be implemented pending the outcome of an appeal.
Although she approached the employer from time to time to determine when her appeal hearing would be finalised, no answer was forthcoming. She was finally informed in February 2014 that her appeal was dismissed and that the sanction of dismissal stood.
After the arbitrator found that the reason for her dismissal was fair, Stokwe unsuccessfully took the matter on review. When both the Labour Court and the Labour Appeal Court refused her leave to appeal, she took the matter all the way to the Constitutional Court where she argued that the employer had abandoned its right to discipline her given the unexplained, lengthy delay in finalising the process.
The Constitutional Court restated the principles which were identified in various judgments and carefully summarised by the Labour Court in the matter of Moroenyane v Station Commander of the SAPS (2016). When determining whether the employee was subjected to unfairness, or prejudiced, the following issues must be explored:
- Is there a direct link between the length of the delay and the question of unreasonableness?
- What was the reason for the delay?
- Did the employee take any steps to assert his/her right to a speedy conclusion of the hearing?
- What impact did the delay have on the employee’s ability to conduct a proper defence?
- What is the nature of the alleged offence? The nature of the offence may provide an explanation why the investigation was not speedily concluded.
The Labour Court concluded that “all the above considerations must be applied, not individually, but holistically” (paragraph 42.6).
The Constitutional Court didn’t agree that the employer had abandoned its right to discipline her and confirmed the dismissal, but found that the Department had no explanation for the delay and consequently held that her dismissal was procedurally unfair.
The Constitutional Court further emphasised the principle that discipline should be prompt and fair and that disciplinary processes should be concluded in the shortest possible time frame.
Given that the Department could not provide a reasonable explanation for the delay, the Constitutional Court made a costs order against it to show its disapproval:
“ Accordingly, before awarding costs in a labour-related dispute a court is required to keep uppermost in its mind the requirements of the law and fairness. On this score, the conduct of the parties and such factors as may be considered relevant would bear on this issue. In the context of this case, and having regard to the cumulative effect of the factors, such as
- the effect of the inordinate delay in the disposition of the applicant’s internal appeal which has not been explained,
- the mental anguish to which the applicant has been subjected as a consequence of the delay and which was exacerbated by her loss of employment,
it is my judgment that the conduct of the respondents is deserving of censure. An adverse costs order against the respondents would serve as an appropriate measure of this Court’s mark of disapproval of the respondents’ conduct.”
Strong words, indeed.
The importance of this judgment
The Constitutional Court has not only confirmed the principles in terms of which unfairness or prejudice to an employee should be determined in instances where the finalisation of a disciplinary process is delayed, but also emphasised the importance of finalising such a process as soon as possible.