This month’s employment briefing highlights ten procedural steps that often get overlooked by employers, which ultimately may jeopardise the entire case.
According to section 37(2) of the Employment and Labour Relations Act, 2004 (the "ELRA"), a termination of employment by an employer is deemed unfair if the employer is unable to prove that:
- the reason for the termination is valid;
- the reason is a fair reason; and
- the employment was terminated in accordance with a fair procedure.
In our experience at the Commission for Mediation and Arbitration ("CMA"), it is a far greater challenge to prove that fair procedure was adhered to than to prove the fairness and validity of a reason for termination of an employment contract. This is due to a lack of codification, and the technical nature of some of the procedure.
- Failure to issue a show cause letter to an employee prior to taking disciplinary action. A show cause letter is issued to an employee who is alleged to have committed a misconduct. It details the incident and requires the employee to explain the reason(s) a disciplinary action should not be taken against him/her. This is not prescribed in the law, however an omission of this step may be considered by the CMA as a breach of rules of natural justice i.e. allowing the employee to defend themselves.
- Failure to issue a notice of disciplinary hearing or issuing a notice of less than 48 hours. Rule 13(3) of the Employment and Labour Relations (Code of Good Practice) Rules (the "Code") requires an employer to issue an employee with reasonable notice of an intended hearing to allow him/her to prepare for the hearing. The Code requires such notice to be of not less than 48 hours.
- Failure to include the allegations or charges facing the employee in the notice of a disciplinary hearing. The ELRA and the Code do not expressly require the employer to notify the employee of the allegations that the latter will be faced with. However in practice, the CMA and/or the court may decide that the hearing was unfair where the employee was not informed of the allegations facing them ahead of the disciplinary hearing.
- Failure to include in the notice of disciplinary hearing information that the employee is entitled to be accompanied by a representative at the disciplinary hearing. Rule 13(3) of the Code provides that the employee shall be entitled to be assisted in the hearing by a trade union representative or a fellow employee. Failure to inform the employee of their right of representation ahead of the hearing could be ruled by the CMA and/or the court to be unfair.
- Introducing new charges against the employee during the hearing which are different from the charges in the notice of the disciplinary hearing. The CMA and/or the court may rule that the employee was not availed sufficient notice to prepare where new charges are introduced at the hearing. In such circumstances the termination may be deemed unfair.
- A disciplinary committee being composed of only one individual. Both the ELRA and the Code require an employer to constitute a disciplinary committee to hear the case. Although the ELRA and the Code do not prescribe a number of individuals that can constitute a disciplinary committee, an employer may be challenged if the “committee” constituted of only one individual.
- A person who was involved in the allegations that resulted in a disciplinary action (including investigation) participating as a member of the disciplinary committee. This could bring the impartiality of the disciplinary committee into question and the CMA and/or the court may rule that the hearing was procedurally unfair.
- Failure to call witnesses at the hearing for cross-examination by the employee. Rule 13(5) of the Code provides that the employee shall be given a proper opportunity at the hearing to question any witness called by the employer, and to call witnesses if necessary. Not availing an employee with an opportunity to cross-examine/question the employer’s witness(es) could be deemed unfair. This omission is common where the employer is relying on written statements of the witness.
- The disciplinary committee recommending a penalty prior to allowing the employee to put forward his/her mitigation/representation regarding an appropriate penalty. According to the Guideline for Disciplinary, Incapacity and Incompatibility Policy and Procedures (the "Guidelines"), a penalty should be imposed after the employee has presented his/her case. Failure to comply with this requirement may be considered an unfair termination.
- Failure to inform the employee of their right to appeal to a senior manager. The disciplinary committee must inform an employee of their right to appeal. Failure to inform the employee of this right could be considered by the CMA and/or the court to be unfair.
The list set out above is not exhaustive and the CMA may formulate other reasons to determine fairness.
Please note that an arbitrator or a judge may rule that the termination of an employment contract was procedurally unfair if any of the points set out above were not complied with. Irrespective of the extent of the deviation, upon the arbitrator/judge making a finding that the termination was unfair, the arbitrator may order an employer to:
- reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or
- re-engage the employee on any terms that the arbitrator or court may decide; or
- pay compensation to the employee of not less than twelve months' remuneration.
We therefore urge employers to be very diligent when conducting disciplinary hearings in order to avoid the pitfalls stated above.