South Africa: Avoid Rigid Disciplinary Procedures

 

By Gillian Lumb and Zola Mcaciso © Cliffe Dekker Hofmeyr March 29, 2019
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South Africa: Avoid Rigid Disciplinary Procedures

​Employers in South Africa with rigid disciplinary procedures that form part of a collective agreement or employees' terms and condition of employment face the risk that noncompliance with these procedures may result in severe consequences, including that they have waived their right to discipline employees.  

Collective agreements often include time periods within which disciplinary proceedings must start or be held. Failure to comply with these periods may result in the disciplinary proceedings being declared of no force and effect. This was confirmed by the Labour Court of South Africa in the decision of SAMWU v. City of Cape Town and Others in which the judge set aside an arbitration award, found that the employer's failure to comply with its collective agreement constituted procedural unfairness and invalidated the disciplinary proceedings. The judgment reiterates that collective agreements are peremptory and as such, compliance with their provisions is required and not at the discretion of the employer.

This case once again cautions employers against creating additional and onerous obligations for themselves in collective agreements. The courts have repeatedly followed the 2006 decision in Avril Elizabeth Home, finding that flexibility should be acknowledged in the exercise of discipline and encouraging employers not to adopt rigid, criminal model internal disciplinary proceedings.

The SAMWU and Avril Elizabeth Home decisions were referred to and applied by the bargaining council in Public Servants Association of South Africa obo Sepuru v. COGTA. In this case, the employer delayed taking disciplinary action against an employee for a period of more than 381 days from the date on which the employee was issued with notice of the allegations of misconduct. The delay was notwithstanding the provisions of the collective agreement that required that disciplinary action be taken within 10 workdays from the date of serving the charges on the employee. The employee referred a dispute to the bargaining council alleging that the employer had waived its right to take disciplinary action against him, given the failure to institute disciplinary proceedings within the 10 days stipulated in the agreement.

Referring to the decision in SAMWU, the commissioner confirmed that a deviation from the peremptory provisions of a collective agreement result in the disciplinary proceedings being of no force and effect. In this instance, the commissioner found that while the disciplinary action had started within the stipulated period, it had not been completed and continued to be delayed for more than a year. As the disciplinary hearing had started, the commissioner found that the employer had not waived its right to discipline the employee. However, the employer had failed to act promptly and fairly. It had delayed completing the hearing for more than 381 days and this delay was unreasonable. The commissioner directed the employer to complete the disciplinary action within 60 days from the date of the award.

The High Court of South Africa came to a similar conclusion in the case of Viedge v. Rhodes University and Others in which an employee brought an urgent application to have disciplinary action against him declared unlawful. The employee argued that he was contractually entitled to a procedurally fair disciplinary process in accordance with the employer's policies, which were an extension of his employment contract. He challenged the process on the basis that the disciplinary hearing was not conducted in accordance with the employer's applicable policy that required the appointment of a chairperson at a specified level and that noncompliance with the policy constituted a breach of his contractual right to a fair disciplinary procedure. The High Court found that the employer's failure to comply with the policy was a breach of the employee's contract, rendering the disciplinary action taken against him unlawful and void.

These judgments are a clear warning to employers to avoid incorporating rigid disciplinary procedures in their collective agreements and/or employment contracts. Employers are encouraged to implement flexible disciplinary procedures.

Gillian Lumb and Zola Mcaciso are attorneys with Cliffe Dekker Hofmeyr in Cape Town, South Africa. © 2019 Cliffe Dekker Hofmeyr. All rights reserved. Reposted with permission of Lexology.

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