The Employment Tax Incentive allows employers to claim a tax concession if they employ young workers. Picture: ISTOCK
The Employment Tax Incentive allows employers to claim a tax concession if they employ young workers. Picture: ISTOCK

Section 188 of the Labour Relations Act (LRA) gives the employer the onus of proving it has been procedurally and substantively fair in dismissing employees.

This forces employers to act with great care and expertise in gathering evidence and in designing and applying their disciplinary policies. The labour courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.

No labour court decision illustrates these points better than the one delivered in the landmark case of Riekert vs CCMA and others (2006, 4 BLLR 353). In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management. He took the employer to the CCMA but the arbitrator upheld his dismissal.

He then took the arbitrator on review to the labour court, where the judge found the CCMA arbitrator had recognised that the employer had an extensive disciplinary code but had not adhered to it. He added that, since the employer’s disciplinary code was incorporated in his employment contract, the employee was entitled to insist it be complied with.

Despite this, the arbitrator had found the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines. While it is true that disciplinary codes are merely guidelines, this does not entitle employers to deviate from procedures as they liked.

The court held that it was unclear how the arbitrator had arrived at the conclusion that the hearing was substantially fair since, contrary to the employer’s own code, the chair of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions.

The employer had waited six months from the time it became aware of the misconduct before bringing the charges against the employee. This was despite the employer’s own disciplinary code that required charges be brought within a reasonable time.

The fact that the employee had been denied the opportunity to call witnesses was unacceptable to the court, which found that the CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation. No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis for that charge.

The court concluded that the arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority. The employer’s witnesses were not even able to remember the date of the alleged incident. The arbitrator’s finding that the employee had not been frank in his testimony had neither been justified nor reasoned.

Based on the above, the arbitrator’s award was set aside and replaced by a judgment that the dismissal was substantively and procedurally unfair. The employer was ordered to pay the employee R100,000 in compensation plus interest, as well as the employee’s legal costs.

This case is of great importance as it provides employers with a number of extremely valuable lessons, including that they should neither ignore their own disciplinary codes nor allow any unnecessary delays in notifying employees of disciplinary charges.

In addition to ensuring their disciplinary measures are both effective and legally compliant, employers must gather and prepare all their own evidence thoroughly and, at the same time, allow employees to bring witnesses to the disciplinary hearings.

• Israelstam is CEO of Labour Law Management Consulting.