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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

D: How to Approach Procedural Fairness

If there is a workplace disciplinary procedures

 

 

(65) If there is a workplace disciplinary procedure, its legal status will affect the arbitrator's approach when assessing the procedural fairness of a dismissal. There are three categories: those that are contained in a collective agreement; those that are contractually binding; and those that are unilaterally established by the employer.

 

Collective agreements

 

(66) Item 1 of the Code makes it clear that the Code is not a substitute for a disciplinary code and procedure contained in a collective agreement. This means the procedural fairness of a dismissal must be tested against the agreed procedure and not the Code. It is only if an agreed procedure is silent on an issue required by the Code that the Code plays any role.

 

(67) When deciding whether a disciplinary procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness in a dismissal case.20

 

Contractually binding procedures

 

(68) This kind of agreed procedure does not have the status of a collective agreement. It must be tested against the Code and any conflict should be decided in favour of the Code unless the employer can justify the departure. If the contract imposes a more burdensome procedure than the one in the Code, the procedural fairness of a dismissal must be tested against the contractual procedure.

 

(69) A departure from the agreed procedure should constitute procedural unfairness. But not every instance of procedural unfairness in these circumstances ought to give rise to an order of compensation. Like collective agreements, an arbitrator should weigh up the materiality of the breach and the prejudice to the employee in determining compensation, if any, for the procedural unfairness.

 

Employer imposed procedures

 

(70) An employer imposed procedure must be tested against the Code and if there is any conflict, the Code takes precedence unless the employer can justify the departure. A procedure that is not legally binding ought not to be strictly interpreted and applied. Ordinarily, departures from established policies and procedures, or from the Code, should not result in a finding of procedural unfairness unless there is material prejudice to the employee. Subject to the same qualification, if the employer amends or adjusts a policy or procedure to meet a particular exigency or to address circumstances that are not contemplated in the policy or procedure, a finding of procedural unfairness is not warranted.

 

Representation

 

(71) If a workplace procedure provides for a right to representation when an employee is called on to state a case in response to an allegation of misconduct, a disputed decision by an employer to admit or deny representation should be evaluated in terms of that procedure. When rights to representation are not regulated by a workplace procedure, the Code of Good Practice: Dismissal provides that the employee should be allowed the assistance of a trade union representative or a fellow employee. If a disciplinary code permits the right to legal representation, this should be afforded. However, neither the LRA nor the Code recognise an automatic right to legal representation.

 

 

20 Highveld District Council v CCMA & Others (LAC) at paras 15 - 17.