This is the third article in a series of articles meant to advise litigants who may have to arbitrate before the CCMA after 1 January 2012, in the face of the new "Guidelines on Misconduct Arbitrations" ("the Guidelines") which were published by the CCMA during September 2011 and which became effective on 1 January 2012.
The purpose of this article is to examine those sections of the Guidelines which advise arbitrators on how to approach and assess the concept of procedural fairness in arbitration proceedings relating to misconduct.
Procedural fairness is a flexible concept, and the determination of procedural fairness will ultimately depend on the particular standard against which it is measured. The Guidelines deal with the various possible standards and approaches which may apply in different cases, which are discussed more comprehensively below.
The requirements of the code of good practice
If there is no prescribed disciplinary procedure in a workplace, arbitrators must approach procedural fairness in line with the requirements of the Code of Good Practice: Dismissal ("the Code"), and particularly Item 4 thereof, which sets out the general principles of a fair procedure.
The Code envisages a flexible approach regarding an investigation and enquiry relating to misconduct and does not prescribe a formal procedure akin to a criminal hearing. Accordingly, it is this inherently informal and flexible basis upon which procedural fairness should be assessed. Departures from the relevant requirements of the Code (listed below) should be justified and are only permissible in exceptional circumstances: for example, in order to protect lives and property, or if the employee refuses to state his or her case in response.
The arbitrator should summarise and assess the relevant facts of the matter in relation to the following requirements, as set out in Item 4 of the Code:
- The employer must notify the employee of the allegations of
misconduct using a form and a language that the employee can
reasonably understand. Such notification may be oral or in
writing. The fairness of the notice should be determined by testing
whether it is clear and comprehensible enough to reasonably enable
the employee to state a case in response. For example, it would be
unfair to state the charges of misconduct in vague and generic
terms which do not sufficiently inform the employee of the basis
upon which to prepare his or her defence.
- The employee should be allowed a reasonable time to prepare
a response to the allegations. A "reasonable time"
depends on the particular circumstances – the complexity
of the allegations and the nature of the factual issues involved.
The Guidelines provide that, in most cases, it would be
unreasonable to give an employee less than a day to prepare his
- The employee should be allowed the assistance of a trade
union representative or fellow employee in preparing a response and
in stating a case in any enquiry. However, a trade union
representative may only assist an employee if the particular trade
union has been granted the necessary organisational rights in the
workplace. It should also be stressed that the Code does not
recognise an automatic right to legal representation.
- The employee should be given the opportunity to state a
case in response, either orally or in writing. As stated
above, this does not necessarily entail a formal hearing. The
determining factor throughout is that the employee was given a
proper opportunity to state his or her case in response. The person
who hears the case is irrelevant in this regard and an employer may
use an external third party to conduct the hearing.
- After the enquiry, the employer should communicate the
decision taken, and preferably furnish the employee with written
notification of that decision. An employer should also remind
a dismissed employee of the right to refer an unfair dismissal
dispute, either to the CCMA, a bargaining council having
jurisdiction, or in terms of any dispute resolution procedure in a
collective agreement, if applicable.
Should an arbitrator, after testing the actual procedure followed against the abovementioned procedural requirements of the Code, find that the procedure was in any way defective, he should then determine whether the particular defect was material. The severity of the defect becomes relevant when determining the extent of compensation to be awarded for procedural unfairness.
The requirements if there is a workplace disciplinary procedure
If there is a prescribed disciplinary procedure in a workplace, then arbitrators must have regard to such procedure. There are, however, circumstances in which the Code may still be applied.
There are three possible categories, or sources, of workplace disciplinary procedures. These categories differ in respect of their legal status, which should direct the arbitrator's approach in assessing procedural fairness.
If disciplinary procedures are contained in a collective agreement, the Code may only be invoked in relation to issues which are not addressed in the particular collective agreement. All other aspects of the disciplinary process must be tested against the collectively agreed procedure, and not the Code, when assessing procedural fairness. The Guidelines provide that an arbitrator should only make a finding of procedural unfairness if it can be found that the actual procedure followed resulted in unfairness. This presumably means that the mere deviation from an established procedure should not, in itself, translate into procedural fairness: the test is whether that deviation actually resulted in any unfairness.
Contractually binding procedures and procedures unilaterally imposed by the employer, however, are lower in status than, and must be tested against, the Code, and the Code must be given preference in the event of a conflict, unless the employer can justify a departure from the Code. A contractually binding procedure must be given preference over the Code, however, if it imposes a greater burden on the employer. Whichever procedure is more favourable to the employee must accordingly be followed.
Although a departure from a contractually binding procedure would generally constitute procedural unfairness, the Guidelines state that not every instance of procedural unfairness ought to lead to an order of compensation. The materiality of the breach, and the prejudice to the employee, will be relevant factors in determining compensation.
Disciplinary procedures which are unilaterally imposed by the employer are not legally binding on the employee and should, therefore, not be strictly interpreted and applied. It follows that a departure from these procedures, or an adjustment of an employer's disciplinary policy for the purpose of addressing unforeseen circumstances, should not automatically result in a finding of procedural unfairness, unless there is resulting material prejudice to the employee.
Where a workplace procedure provides for the right to representation, an employer's decision on whether or not to allow an employee representation should be evaluated in terms of such procedure. Although legal representation is not automatic, the Guidelines state that legal representation should be afforded if the particular procedure permits it.
Disciplinary action against trade union representatives
In the interest of maintaining amicable ongoing industrial relations between employers and trade unions, an employer must inform and consult with the relevant trade union before taking disciplinary action against an employee who is a representative, office bearer or official of that trade union. If there is no agreed consultation procedure, a procedure should be adopted which the employees and the trade union will both perceive as being fair and objective.
An employer may, however, depart from this procedure for good reason, but only if this does not result in any prejudice to the trade union and the trade union representative.
The above requirement imposes an additional procedural burden on the employer, but applies only to trade union representatives, office bearers and officials of a trade union which is legally recognised in the particular workplace. Unrecognised trade unions, therefore, do not enjoy this right.
Arbitrators are obliged to take the Guidelines into account and parties are, accordingly advised to be mindful of the Guidelines in relation to the manner in which an arbitrator assesses procedural fairness during the course of a particular matter.
The Guidelines specifically outline the different possible standards and/or instruments against which procedural fairness must be tested (i.e. the Code and the different possible workplace procedures) and in which circumstances the respective standards are applicable. It is therefore crucial to be mindful of the Guidelines in order to determine, firstly, whether an arbitrator assessed the procedure in accordance with the correct standard and, secondly, whether the arbitrator applied such standard correctly in the determination of procedural fairness.
By assessing an arbitration award with reference to the Guidelines, a party may be able to more easily prove that the arbitrator exceeded his powers, committed misconduct in relation to his duties and/or committed a gross irregularity in the conduct of the proceedings. In terms of Section 145 of the LRA, such grounds might constitute a defect in the arbitration proceedings, rendering the arbitration award reviewable.
With this in mind, the Guidelines should serve as an essential and practical yardstick against which to measure the assessment of procedural fairness by arbitrators, after 1 January 2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.