“I am no longer accepting the things I cannot change. I am changing the things I cannot accept.” – Angela Y. Davis
MISA recently dealt with a matter that saw one of our members dismissed for poor work performance on the employer’s allegation that she was not meeting her sales target. Upon dismissal the member appealed the decision internally which saw another hearing set down to be chaired by another independent chairperson appointed by the employer. During the appeal proceedings, the chairperson found that the member’s dismissal had been both substantively and procedurally unfair and recommended that the member be reinstated as the employer had not followed the guiding provisions of Item 9 of Schedule 8 of The Code of Good Practice. The employer elected to disregard the recommendation of the chair to the appeal proceedings and proceeded to uphold the dismissal.
This particular scenario raised a plethora of legal questions, but the most pertinent for this particular discussion is: May an employer overrule a recommendation made by the chairperson to a disciplinary proceeding?
Relevant case law
As already established and being a matter of common cause, upon dismissal of the employee the employee sought to appeal the dismissal. Her appeal was upheld and the chairperson of the appeal hearing recommended that the dismissal be revoked and that the employee be reinstated as a result of the employer’s failure to adhere to schedule 8.
In the matter of South African Revenue Service v CCMA & others (C683/11)  ZALCCT 14 (10 February 2015), the Labour Court was faced with the task of establishing whether the employer, in this case SARS could overrule the findings of the presiding officer of a disciplinary hearing. The Labour Court relied on the finding of the Labour Appeal Court in South African Revenue Services v CCMA & others  1 BLLR 44 (LAC) in which the Labour Appeal Court effectively found that the employer was giving themselves a right to alter the decision of the disciplinary enquiry chairperson even though its own procedures only provided a right of appeal to the employee. The only avenue open to the employer in the case under consideration was a review of the decision of the chairperson, which it did not make use of. The court held that the dismissal was procedurally unfair and awarded compensation.
The facts of the matter subject to the court’s decision herein are strikingly similar to the matter before regarding our member. The employer herein provided a right to appeal to the employee, and then gave itself the right to alter the decision of the chairperson ex post facto. The course of action taken by the employer, in light of the decision of the courts a quo, would thus make the dismissal of the employee procedurally unfair.
Clearly unsatisfied with the outcome of the appeal hearing the employer ought to have reviewed the decision of the chairperson and had every opportunity to do so, but elected not to and chose to uphold the dismissal. In accordance of the Labour Court and Labour Appeal Court rulings the dismissal was, referred for Arbitration, and also deemed to be procedurally unfair.
Employer’s disciplinary code
The question however arises, what if the employer’s disciplinary code makes provision for the employer to make the final decision in a disciplinary enquiry?
Further to the that question, we ask ourselves, is a chairperson’s recommendation merely that, a recommendation; and not a decision? Surely, the final decision (outcome) lies in the hands of the employer?
As illustrated through case law an employer is not entitled to disregard a recommendation and overturn a chairperson’s decision. To do so would be procedurally unfair.
However, it has become an established principle, that yes, an employer may be able to overrule the outcome of a chairperson’s recommendation, but only in limited circumstances.
The courts have provided, that a chairperson’s recommendation may be overturned by an employer, in instances whereby justice and the right to fairness (for both parties), requires it. Furthermore, a policy in the workplace authorising an employer to do so, will support that decision; provided that the employee be given an opportunity to state his reasons why the recommendation should not be overruled.
While an employer can initiate disciplinary processes they do not have an unfettered control of said processes. As illustrated through case law in this discussion an employer is not entitled to disregard a recommendation and overturn a chairperson’s decision and to do so would render the disciplinary process followed unfair, unless exceptional circumstances exist.
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