Many employers utilise the services of an external chairperson to chair disciplinary inquiries within the workplace. There may be times when an employer is unhappy with the sanction recommended by the chairperson and may wish to impose a harsher sanction on the employee involved. The question then arises whether this is permissible and if it would have any effect on potential CCMA litigation at a later stage.
Whether interference by an employer is allowed or not was dealt with in the case of National Union of Mineworkers v ArcelorMittal South Africa Limited and Others (JR 802/18) [2020] ZALCJHB 167. This case relied on previous Labour Appeal Court decisions and stated that the principle of fairness is the cornerstone of labour-related issues. Therefore, if it was fair to do so, an employer could vary or amend the decision made by a chairperson, but this should only be done in exceptional circumstances.
Implications for employers in the absence of Collective Agreement or Disciplinary Code
It was furthermore stated that if there is no collective agreement or disciplinary code in place at the company, an employer may substitute the sanction of a disciplinary chairperson if it is fair to do so and by engaging the employee, either in another disciplinary inquiry or to have the employee make submissions on the possible variation.
However, where there is a collective agreement in place, the parties are bound thereby, and any variation will be limited to what is allowed therein. Therefore, the employer will not be allowed to substitute the findings of the chairperson and if done, the decision is unfair.
Case Study – Moloantoa v CCMA
In the case of Moloantoa v CCMA and others [2021] 8 BLLR 827 (LC), the employer had a disciplinary code that did not allow the employer to amend or vary a sanction imposed by a chairperson. Notwithstanding this, the employer elected to change the sanction of the chairperson. It was found that as a result of the employer amending the sanction, which went against their disciplinary code, the dismissal of the employee was unfair.
There may be instances where an employer wishes to appeal the chairperson’s decision. This could be based on the fact that evidence that the employer had at the time of the inquiry did not give the full picture of what had transpired or that new witnesses or evidence is available that may have a material impact on the decision made.
Another possibility is that the sanction prescribed by the chairperson is not in accordance with the disciplinary code in place at the employer. There are also occasions where a chairperson provides a sanction that is biased or based on bad faith.
Case Study M v Rhodes University
In the case of M v Rhodes University and Another [2021] 3 BLLR 306 (ECG), the High Court stated that in such instances where the employer was completely unhappy with the outcome of a chairperson, they could institute an internal review. In terms of this process, the employer could appoint an internal review body and present evidence to such body that the sanction provided by the chairperson is wholly inappropriate and must be amended.
It is, however, important that the disciplinary code of the company should allow for such an internal appeal or review process. Accordingly, in certain circumstances, employers can challenge the sanctions recommended or imposed by chairpersons. This will specifically be appropriate where the sanction is unfair or unreasonable. Where the sanction is wrong, an employer would have a better chance at successfully trying to amend the sanction prescribed than abide thereby in such instance.
Can Employers Amend Sanctions Imposed by a Disciplinary Chairperson?
In all circumstances, the principle of fairness will be key in whether an employer can amend a sanction. The courts have been clear that where a disciplinary code or collective agreement prevents the employer from amending a sanction, their actions would be deemed unfair if they disregarded the sanction and imposed their own.
Should an employer wish to ensure that they can amend sanctions that they may be unhappy with, it would be essential to place such a provision in the disciplinary code to avoid unnecessary challenges if the employee takes the matter further.
