Umsebenzi with Teboho Mokoena

It is generally expected, in pursuance of sound employer/employee relations that employers, as part of their employee policy handbook, to include a Disciplinary Code and Procedure, which, among others, would list a set of transgressions, and sanctions for each transgression.

As a general rule and practice, the appointment of a presiding officer to chair disciplinary hearings falls within the purview of an employer. In my experience, I have come across Disciplinary Codes and Procedures which state that a presiding officer’s ruling is final and binding on all parties, namely an employer and employee. But there are instances in which a Code and a Procedure would state that, in certain circumstances, an employer has a right to review a presiding officer’s decision, including the sanction issued.

The matter we are examining here is that of Anglo-American LTD v Edwin Adriaan Beyers and a CCMA, citation: JA 122/2019. The matter was heard in the Labour Appeal Court on 6 May 2021.

In summary, the salient facts around this case are as follows:

According to the court records, Beyers was employed by the Anglo American LTD Electrical Foreman. At the time of his dismissal, he held the position of a Senior Electrical Foreman. On 21 April 2017, Beyers was served with a suspension letter pending an investigation into an alleged breach of the lockout procedures. Subsequently, he was issued with a notice to attend a disciplinary enquiry, with the employer citing the following misconduct: failure to carry out the lockout procedure in accordance with the employer’s Isolation and Lockout Operational Procedure.

Beyers pleaded guilty to the allegations against him and the presiding officer thus confirmed the guilty verdict. His sanction was a final written warning. As part of the sanction, Beyers was required to undergo retraining on the lockout procedure.

On 10 May 2016, Beyers was duly sent for retraining and subsequently returned to work upon completing the retraining.

The National Union of Mineworkers (NUM) then lodged a complaint with the employer, citing inconsistent application of discipline. NUM apparently alleged that some of their members who had been found guilty of the same or similar transgression had been dismissed. It was at this point that the employer took a decision to review the sanction issued against Beyers.

As part of the process, the employer convened a review panel and a hearing was held on 3 June 2016. In the interim, Beyers had been placed on immediate suspension. The review panel recommended dismissal as an appropriate sanction, and Beyers was summarily dismissed with effect from 10 June 2016.

Beyers referred an unfair dismissal dispute to the CCMA. The CCMA arbitrator held that the dismissal was both procedurally and substantively fair. The arbitrator found that the employer had an established practice of reviewing cases, and as such its invocation in this case was not out of the ordinary. The arbitrator held that the offence was a serious one, and given Beyers seniority, his dismissal was justified. Beyers then took the matter to the Labour Court (LC).

The LC found that the arbitrator’s decision to be reviewable and held that the employer had not demonstrated exceptional circumstances that warranted its intervention in Beyers’s disciplinary proceedings. The LC further found that the employer had failed to adduce proof that the sanction of a final written warning was inconsistent with sanctions issued in similar circumstances in the past.

Accordingly, the LC found the dismissal to have been substantively unfair and reinstated Beyers.

The employer then lodged an appeal at the Labour Appeal Court (LAC). The LAC, in essence, had to consider the following:

What is the test and indeed the circumstances under which an employer is permitted to interfere with a disciplinary sanction imposed by a chairperson of a disciplinary hearing appointed by an employer, and in circumstances where the employer’s disciplinary code and procedures make no provisions for such interference? What further compounded matters was the fact that the employer’s Code did not provide for such an intervention. The onus thus fell on the employer to prove, based on this case’s circumstances, that it was entitled to do so.

LAC’s Considerations

So, let us ask ourselves: what were the main considerations that the LAC had in front of them?

The employer argued that it had an established practice of reviewing sanctions if they were of the opinion that sanctions imposed by a presiding officer were inappropriate.  

As part of their argument, the employer cited the: BMW v Van Der Walt (2000) 2 BLLR 121 (LAC) wherein it was held that the fairness test should be used to determine if the sanction is just and appropriate.

However, the LAC, whilst in essence, agreeing with the employer that fairness should be key a consideration, it went on to introduce an additional requirement. According to the LAC there should exist exceptional circumstances which would warrant a review of a sanction and or verdict.  

In this regard, the LAC, among others, noted that that there was no evidence put forth by the employer to demonstrate that there were such exceptional circumstances which could be put forth, and interrogated, save for the evidence which had already been placed and tested during the initial hearing.  

The LAC also raised the issue of the doctrine of election.

According to this doctrine which dates back at least to the decision in Segal v. Mazzur 1920 CPD 634 at 644 – 5 where Watermeyer AJ (as he then was) held that the aggrieved party “… has a choice of two courses. He can either elect to take advantage of the event or he can elect not to do so.  He is entitled to a reasonable time in which to make up his mind but when once he has made his election he is bound by that election and cannot afterwards change his mind.”

In applying this doctrine to this case, the LAC essentially held that the employer had two choices, to accept or to reject the finding and or the sanction. However, as we have seen, the employer initially accepted the finding and the outcome, and actually implemented it by sending Mr Beyers to a re-training course, and upon his completion of the said re-training, took him back to his old post. It was only after NUM had raised the issue the the employer sought to have the matter reviewed.

The LAC also made reference to the Constitutional Court’s sentiments expressed in the case: Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others had this to say on the matter of doctrine of election:

“One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternatives and entirely inconsistent courses of action or remedies. The principle that in this situation the law will not allow that party to blow hot and cold is a fundamental one of general application.”

According to the minutes of the disciplinary hearing in question, the presiding officer did consult the Employee Relations manager who endorsed the sanction issued to Beyers.  

So, what are the lessons to be learned from this case?

• An employer must at all times make it clear that, should it be their policy, they have a right to review verdicts and sanctions as well as grounds for doing so.

• That said, employers need to be cognisant of the fact that their right to review verdicts and/or sanctions will invariably be challenged by affected employees, and as such, they should ensure that there are no gaping loopholes as we saw in the above matter.

• That the policy to review verdicts and/or sanctions must be based, not only on demonstrable pursuit of fairness, but that there must exist exceptional circumstances justifying such review.

• Lastly, it goes without saying that the policy to review verdicts and/or sanctions must be applied consistently across an organisation.

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