Internal Appeal – Weighing up the Possibilities

The norm, or so it seems, is that employees have the undisputed right to appeal the outcome of a disciplinary hearing internally. This is however only true when the employer’s disciplinary code provides for a compulsory internal appeal process. Once established that there is a right to an internal appeal process, employees feel obligated to follow this process, prior disputing the outcome of a disciplinary hearing, through the well-established dispute processes provided in the Labour Relations Act 66 of 1995 (LRA).

Once it is established that there is an internal appeal process, the common mistake that employees sometimes make, is to accept that an internal appeal process will have only one of two effects, namely to overturn the sanction to a lesser sanction, or to uphold the sanction imposed by the employer.

I am of the view that an internal process, subject to the provisions of Internal Disciplinary Codes or Agreements, is not only overrated, but also risky and unnecessary. My view is vested on judgments handed down by the courts.

Risk – Increased Sanction as a Result of Appeal Procedures

In a dispute where the arbitrator unpacked this issue to some extent, AUSA obo Melville v SA Airways Technical (Pty) Ltd [2002] 6 BALR 573 (AMSSA), it was held that the rationale for an appeal process ‘revolve around the fairness of the sanction already decided upon by the employer at the stage of the disciplinary enquiry. Should the appeal adjudicator believe a more serious sanction would have been justified, that only serves to support the conclusion that the sanction actually imposed was not unfair towards the employee.’

There is no authority, in the absence of a collective agreement, or express contractual terms that explicitly provides for this, an employer/chairperson does not have the liberty to impose a more severe sanction. The risk however is that your sanction might wrongfully be increased, placing you in an unfair disadvantage where you will have to dispute this whilst being out of pocket.

Fairness lies in an Independent Outside Tribunal

Subjectivity plays a cardinal role in many disputed dismissals as it sometimes tends to cloud fairness, the measure sticks when misconduct is weighed against a reasonable sanction.

Judge Van Niekerk in Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others [2006] 9 BLLR 833 (LC) rationalised the meaning of an appeal in terms of Convention 158 of the ILO (Convention) on the Termination of Employment.  The Convention is the foundation of Schedule 8: Code of Good Practice – Dismissal (Code). Many construe the meaning of ‘appeal’ to be an Internal Appeal Process within the workplace and as a result many Disciplinary Policies and Procedures provides for an Internal Appeal Process.

The court held that ‘…The Convention goes on to require what it terms a right of appeal. This is not the right of appeal to a higher level of management that the criminal justice model requires, it is a right of recourse to an independent tribunal when the substantive merits of a decision to dismiss are challenged. This requirement is of course met by these provisions of the LRA that require the arbitration or adjudication of disputed dismissals. Neither the Act nor the Code obliges an employer to provide any workplace right of appeal against the decision to dismiss.’ (page 841) (own Emphasis)

Conclusion

The outcome of a disciplinary hearing and the imposed sanction, should not be the end of the road. You do have recourse. In essence if the Disciplinary Code does not compel you to follow an internal appeal process, you are not bound to follow the internal appeal process.  In the absence of express contractual terms or compulsory internal processes, your recourse lies in the processes laid down in the LRA, that is, the right to be heard by an outside tribunal such as the MIBCO Dispute Resolution Centre (DRC) or the CCMA.

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