In certain special circumstances
In certain special circumstancesemployees are entitled to be represented at disciplinary hearings by external people such as trade union officials and legal experts. For example, in Molope v Mbha and others, the Labour Court found that employees are entitled to be represented by a colleague, lawyer or union official.
Likewise, employers are entitled to get external experts to chair disciplinary hearings. In the case of Mewusa obo Mbonambi v S Bruce, the employee was dismissed for dishonesty and insubordination. The employee refused to attend his disciplinary hearing and claimed that the employer's use of an external chairperson was procedurally unfair. The arbitrator said that it was established law that employers were entitled to appoint outsiders to preside over disciplinary hearings.
Not only is it perfectly fair and legal for an external expert to be asked to chair the hearing, but it is also desirable because:
• An external person will be less susceptible to influence from the parties than an internal chairperson.
• An expert in labour law will have the experience and skill to run the hearing according to the very complex requirements of the laws of evidence.
• Such an expert would be able to arrive at a fair decision without breaching the myriad of complex principles that the CCMA expects to be applied.
Many employers have had their dismissal decisions overturned at the CCMA not because the dismissal was inappropriate but because the chairperson, an internal employee or manager was unskilled in the chairing of hearings. Schedule 8 of the LRA requires that the employee be allowed the opportunity to state a case in response to the allegations.
The courts have consistently interpreted the latter requirement to mean that the accused employee must be given the right to an unbiased chairperson, to testify, to bring documents, call witnesses and cross-examine evidence brought against him/her.
The question then is how can an employer:
• Provide for these legal rights without setting up a proper enquiry with a fully skilled chairperson?
• Prove that all of these rights have been afforded to the employee without taking proper minutes?
To ensure that the employer complies with the employee's rights and in order to be able to prove such compliance, the employer has no choice but to use a properly skilled chairperson and to set up a formal hearing, the record of which becomes part of the evidence at the CCMA. It is at the CCMA where the employer will be required to prove that it complied with legal procedure when dismissing the employee.
In Schoon v MEC, Department of Finance, the High Court of Appeal decided that the chairperson of a disciplinary enquiry cannot rely on the disciplinary code alone but must also take into account the provisions of the Promotion of Administrative Justice Act 3 of 2003.
Also, the court decided that the employer's refusal to allow the accused the right to legal representation at an internal disciplinary hearing was unconstitutional. This startling decision strongly indicates that the courts see internal disciplinary hearings as very formal processes. Furthermore, where an employee is suspected of poor performance it is not enough to have an informal discussion with the employee about the problem and then to fire him/her the next week.
The LRA sets down specific steps to be followed before a dismissal for poor performance can even be considered. For example, the employee must have received sufficient evaluation, guidance, counselling and training. Even then, the employee's poor performance must have continued after he/she received the said evaluation and guidance.
Furthermore, to justify dismissal there needs to be an investigation into the alleged poor performance and proof that there is no other way of remedying the performance problem. Again it is not practical to comply properly with such stringent requirements in an informal manner because informal processes are difficult to control and to prove.
Thus, whether the employee is a probationer, an experienced worker or a senior executive it is far safer to formalise all procedures related to misconduct and poor performance. Also, the officials who carry out the corrective procedure need to be highly skilled in legal procedure in order to make sure that each and every legal right of the employee is strictly adhered to.
This includes the employee's right to an unbiased chairperson. A presiding officer unskilled in chairing hearings risks breaking rules of impartiality that he/she is not even aware of. This is likely to destroy the employer's case at the CCMA.