“Justice delayed is Justice denied!” – William E Gladstone, 1868

Article by Nichole Turner and Ngoni Goba (Senior Labour Advisors)

Introduction

Various adaptations of this phrase are found throughout legal texts, one such earlier phrase by Charles Molloy, 1682, in De Jure Maritimo et Navali, stated, “To deny or delay Justice, is injustice.”

Fairness in the disciplinary process dictates that the employer should institute disciplinary proceedings against an employee within a reasonable time-frame from either, the date of the alleged offence or, from the date in which the employer becomes aware of the alleged offence.

In a recent MISA article, the concept of progressive discipline in the workplace and the need for an employer to bring an employee who has misconducted themselves back in line with the disciplinary code of their employer was discussed. In this article we discuss the implications of a delay in instituting disciplinary proceedings.

Reasonableness of the Delay

It is long such established that the expeditious resolution of any matter, brings about certainty and reliability, not only in the employer’s disciplinary code, but in the eyes of the employees who are bound by the employer’s disciplinary code.

Most often, the employer’s disciplinary code falls silent on how swiftly an employer should embark on disciplinary action (one would expect an employer to act immediately or at least within a reasonable time period); or how long after a disciplinary hearing is held, should the outcome be communicated to the employee.

However, sometimes the employer’s disciplinary code does in fact provide for a specific timeframe, but the employer or chairperson fails to abide by those timeframes.

In the matter of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (CCT33/18) [2019] ZACC 3, the Constitutional Court held that the delay should not be frivolous or vexatious, stating that an unreasonable delay in finalising disciplinary action renders a dismissal procedurally unfair. The court further held that “the question of whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case.”

Stating further at paragraph 67, that “The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down.”

The court proposed the following factors to consider in order to ascertain reasonableness:

1. The length of the delay.
2. The reason or explanation for the delay.
3. The nature of the alleged act of misconduct.
4. The measures taken by the employee to enforce their right to an expeditious process.
5. Whether the employee has been prejudiced by the delay.

(The above is not an exhaustive list).

Further, the court in the matter of Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38, reiterated the need to consider the prejudice suffered, as a result of the delay.

Implications of an unreasonable delay

The legal maxim “vigilantibus non dormientibus iura subvenit” (the law aids those who are vigilant and not those who sleep upon their rights), is well established in our courts.

Once it has been deemed that there has been an unreasonable delay in the finalization of the hearing process, our courts have not shied away from deeming such dismissals unfair.  In the matter of Riekert vs CCMA and others (2006) 4 BLLR 353, the Labour Court found the dismissal to be unfair on the basis of numerous procedural abnormalities, in particular, that there had been an unreasonable and unnecessary delay between the discovery of the misconduct and the institution of disciplinary proceedings against the employee.

Conclusion

While an employer has the right to initiate disciplinary proceedings, in order to uphold their disciplinary code, they do not have an unfettered control of said processes. As illustrated through case law in this discussion, a dismissal should be effected after a fair process which also entails an expeditious conclusion of the process.

MISA – Just a phone call or an e-mail away!

“Justice delayed is Justice denied!” – William E Gladstone, 1868

Article by Nichole Turner and Ngoni Goba (Senior Labour Advisors)

Introduction

Various adaptations of this phrase are found throughout legal texts, one such earlier phrase by Charles Molloy, 1682, in De Jure Maritimo et Navali, stated, “To deny or delay Justice, is injustice.”

Fairness in the disciplinary process dictates that the employer should institute disciplinary proceedings against an employee within a reasonable time-frame from either, the date of the alleged offence or, from the date in which the employer becomes aware of the alleged offence.

In a recent MISA article, the concept of progressive discipline in the workplace and the need for an employer to bring an employee who has misconducted themselves back in line with the disciplinary code of their employer was discussed. In this article we discuss the implications of a delay in instituting disciplinary proceedings.

Reasonableness of the Delay

It is long such established that the expeditious resolution of any matter, brings about certainty and reliability, not only in the employer’s disciplinary code, but in the eyes of the employees who are bound by the employer’s disciplinary code.

Most often, the employer’s disciplinary code falls silent on how swiftly an employer should embark on disciplinary action (one would expect an employer to act immediately or at least within a reasonable time period); or how long after a disciplinary hearing is held, should the outcome be communicated to the employee.

However, sometimes the employer’s disciplinary code does in fact provide for a specific timeframe, but the employer or chairperson fails to abide by those timeframes.

In the matter of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (CCT33/18) [2019] ZACC 3, the Constitutional Court held that the delay should not be frivolous or vexatious, stating that an unreasonable delay in finalising disciplinary action renders a dismissal procedurally unfair. The court further held that “the question of whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case.”

Stating further at paragraph 67, that “The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down.”

The court proposed the following factors to consider in order to ascertain reasonableness:

1. The length of the delay.
2. The reason or explanation for the delay.

• The nature of the alleged act of misconduct.

1. The measures taken by the employee to enforce their right to an expeditious process.
2. Whether the employee has been prejudiced by the delay.

(The above is not an exhaustive list).

Further, the court in the matter of Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38, reiterated the need to consider the prejudice suffered, as a result of the delay.

Implications of an unreasonable delay

The legal maxim “vigilantibus non dormientibus iura subvenit” (the law aids those who are vigilant and not those who sleep upon their rights), is well established in our courts.

Once it has been deemed that there has been an unreasonable delay in the finalization of the hearing process, our courts have not shied away from deeming such dismissals unfair.  In the matter of Riekert vs CCMA and others (2006) 4 BLLR 353, the Labour Court found the dismissal to be unfair on the basis of numerous procedural abnormalities, in particular, that there had been an unreasonable and unnecessary delay between the discovery of the misconduct and the institution of disciplinary proceedings against the employee.

Conclusion

While an employer has the right to initiate disciplinary proceedings, in order to uphold their disciplinary code, they do not have an unfettered control of said processes. As illustrated through case law in this discussion, a dismissal should be effected after a fair process which also entails an expeditious conclusion of the process.

MISA – Just a phone call or an e-mail away!

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

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

Legal Reception                                                011 4763920 / 0718809682    

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

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku