There is a general perception that disciplinary codes as well as the Code of Good Practice: Dismissal, contained in Schedule 8 of the Labour Relations Act (LRA), are cast in stone and cannot be deviated from.
This is not so. Both constitute guidelines only and employers can deviate from it and from their own disciplinary codes when such a deviation is justified, provided that a fair procedure is nevertheless followed.
The Code of Good Practice specifically states that it deals only with “some of the key aspects of dismissals for reasons related to conduct and capacity” and that it is “intentionally general”. It further states that “departing from … this Code may be justified in certain circumstances”.
There have been a number of judgments in which the Labour and Labour Appeal Courts have repeatedly stated that a disciplinary code is merely a guideline. The Court held in the matter of Moropane v Gilbeys Distillers & Vintners & another (1998) per Landman J that “These guidelines do not give rise to rights…”.
In the matter of SA Tourism Board versus CCMA and others (2003) the Court specifically held that an employer’s code was not peremptory – because it was merely a guideline. This principle was developed further in the unreported judgment in the matter of Desiré Mary Potgieter v SAPS (JS 700/05) (handed down on 10 October 2008) where the Court per Molahlehi J held at paragraph :
“There is authority in our law that disciplinary codes, including those set out in collective agreements, are guidelines that should generally be followed unless there are valid reasons for failing to do so. In general the Courts have adopted a holistic approach in dealing with this issue and have emphasised that the guiding principle should be whether the principles of justice are being upheld.” (My emphasis)
The decision in the matter of Eddels v Seocheran (2000) provide some explanation as to why these guidelines are provided. The Court emphasised that discipline in the workplace is usually administered or presided over by line managers or heads of departments. These initiators and chairpersons are part of management but they are not legally trained.
The guidelines are designed to ensure that the hearing is conducted in a fair manner as required by section 188 (1) of the LRA. Section 188 (1) (a) categorically states that a dismissal – and by implication therefore any disciplinary sanction – must be for “a fair reason” while sub-paragraph (b) provides that a “fair procedure” must be followed.
The requirement that a member of the HR or ER department must be present is, inter alia, intended to ensure that chairpersons and initiators who are not lawyers, conduct the proceedings in such a way that effect is given to employment law principles only.
In the Potgieter/SAPS decision the Court further emphasised the informal nature of workplace discipline. This principle was fully developed in the matter of the Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) where the Court explicitly stated that a disciplinary hearing is distinctly different from a criminal trial. In simple terms this means that the purpose of the disciplinary hearing is to establish during a fair procedure whether an employee had committed misconduct by breaching a rule, and if so, to determine an appropriate sanction.
The question whether it would result in unfairness if an employer deviated from its own disciplinary code and procedure was answered in the matter of Khula Enterprise Finance Ltd versus Madinane and others JR 660/02 (handed down on 13 February 2004). The Court held that it did not matter that the employer had deviated from its own code – the only question was whether it had followed a fair procedure.
This principle was confirmed when the SABC declined to convene separate disciplinary hearings for approximately 100 employees who faced the same allegations. It instead convened a single hearing. The Court declined to grant an interdict in the matter of BEMAWU & Others v SABC & Others (J2239/2015) to stop the proceedings and commented that this deviation did not mean that such a single hearing would not constitute a formal disciplinary hearing. Needless to say, the main requirement would be that this hearing should follow a fair procedure.
The importance of the decisions referred to above is that a deviation from a disciplinary code must be justified – and that a fair procedure should be followed before an appropriate sanction is imposed.