FINAL WRITTEN WARNING TURNED INTO DISMISSAL – IS THIS FAIR?

Most of your employers regulates workplace relationships and conduct through Disciplinary Codes and Workplace Rules/Policies. Once such a Policy or Rule has been breached an employer will follow the Disciplinary Code/Guideline and investigate the alleged breach. Should the outcome of the investigation indicate that you did make yourself guilty of the alleged breach, your employer might issue you with a notice to attend a disciplinary hearing, in line with the Disciplinary Code.

These hearings are, as a norm, chaired or presided over by an independent non-bias person and might even be a Labour Expert. The chairperson/presiding officer might find you not guilty or guilty and impose a sanction such as written warnings, suspension without pay or even dismissal.

Now the question, what if your employer is not in agreement or satisfied with the outcome of the disciplinary hearing? Does your employer have the right to review and change the outcome?

Grounds to review the chairperson’s finding

In certain instances the outcome of a disciplinary hearing can be reviewed, even when the Disciplinary Code does not provide for such a review. For instance, the chairperson did not consider and apply all the facts presented during the disciplinary hearing and as a result misdirected themselves and arrived at an unreasonable finding. Or the Disciplinary Code is not a guideline but a very strict code and the sanction imposed does not correlate with the Disciplinary Code, but this is very rare.

The High Court, in Mzolo v Rhodes University and Another [2021] 3 BLLR 306 (ECG) (4 December 2020) (Mzolo Matter), recently found that an employer may review the finding and/or sanction imposed by a Chairperson should it be in the interest of justice.

The Mzolo Matter

The chairperson found that Mzolo was not guilty of two of the three charges levelled against him, but found him guilty of a part of the third charge. The chairperson sought to impose a sanction of, inter alia, a final written warning in respect of the charge for which he was found guilty, even though that finding would ordinarily warrant a sanction of summary dismissal.

Rhodes University considered that both the chairperson’s outcome and sanction were grossly unreasonable and decided to convene an internal review hearing/process to review the chairperson’s outcome and sanction internally. Rhodes University’s disciplinary code does not expressly state that the university may initiate internal review proceedings; however, it also does not preclude the university from doing so.

Shortly prior to the date of the internal review hearing, Mzolo  launched an urgent application in the High Court to have the internal review proceedings be declared a breach of his employment contract and, therefore, unlawful, and void from the start. The essence of Mzolo’s argument was that his employment contract and the Rhodes University’s disciplinary code did not permit an internal review and, as such, the University was not by law permitted to convene an internal review proceeding. Rhodes University successfully opposed this urgent application.

The High Court, after considering the facts of this case and the body of applicable case law, found that the internal review process was permissible by law. In arriving at its findings, the High Court, inter alia, considered the following:

• The employee’s contract of employment and the company’s disciplinary code incorporate labour law principles, including those of natural justice, equity and fairness, which principles must be adhered to in dealing with disciplinary processes;
• The employee’s employment contract must be interpreted in the context of applicable labour law principles which are based on the fundamental principle of fairness;
• The University’s disciplinary code did not make provision for an internal review process, it was undisputable that the internal review is in line with existing case law authority and is in harmony with the provisions of the disciplinary code;
• Rhodes University had demonstrated, to the satisfaction of the court, that it considered the chairperson’s factual findings and sanction to be grossly unreasonable and inappropriate, which justified interference on review; and
• Rhodes University’s disciplinary code and established rules did not place any restrictions on the university’s right to convene an internal review.

After considering the above, the High Court dismissed the employee’s application and found that the review of the chairperson’s findings were lawful.

Conclusion

It is very important to note that a chairperson can sometimes get it wrong, his or her findings might be grossly unreasonable. It is for this very reason that you have recourse in terms of the Labour Relations Act 66 of 1995 by disputing the outcome in an external tribunal, such as the MIBCO Dispute Resolution Centre or the CCMA. In the same breath, your employer has the right to review the finding and/or sanction by a Chairperson, when the outcome is perceived as grossly unreasonable, and overturn same.

The road does not usually stop were we think it does, you won’t be out of the woods, until the court says you are!

Remember, MISA is just a phone call away.

Kindly utilise the following e-mail addresses and links for assistance during this time: 

Legal/Labour-related enquiries                Legal@ms.org.za  

Legal Reception                                        011 476 3620 

MISA Benefit claim-related enquiries      Claims@misa.org.za   

Any other enquiries                                 Info@ms.org.za  

Website                                                    www.misa.org.za    

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