It is well established in South African law that disciplinary policies and codes are guidelines aimed at ensuring fair labour practices. At times, a deviation from the disciplinary policy or code may be condoned as long as the deviation does not compromise procedural and substantive fairness and is not in contravention of existing agreements.
With this in mind, can a disciplinary hearing chairperson impose a "suspended dismissal" as a disciplinary sanction in circumstances where the applicable disciplinary policy does not provide for such a sanction? In National Lotteries Commission v Mafonjo and Another, the Labour Court was called on to review and set aside an outcome which included such a sanction.
In this matter, Ms Mafonjo was subjected to a disciplinary hearing to consider allegations of misconduct made against her. She was found guilty of various acts of misconduct involving, amongst others, gross dishonesty. The chairperson of the disciplinary hearing imposed a sanction of dismissal. However, he suspended the dismissal for a period of ten years on condition that Ms Mafonjo was "not found guilty of any act of misconduct similar to the ones which she was found guilty of."
Aggrieved by this sanction, the National Lotteries Commission approached the Labour Court in terms of section 158(1)(h) of the Labour Relations Act, 1995 ("LRA") for an order reviewing and setting aside the ruling on sanction.
In opposing the review application, Ms Mafonjo raised two preliminary points. Firstly, she alleged that the review application was not properly before the court as it was brought outside of the prescribed six weeks period for bringing review applications. The court dismissed this preliminary point, as it is established law that the six-week period applies to review applications brought in terms of section 145 of the LRA and not in terms of section 158(1)(h) of the LRA.
Secondly, Ms Mafonjo argued that the National Lotteries Commission's affidavits were invalid as they were commissioned by an attorney who was an initiator in the internal disciplinary hearing. The court dismissed this preliminary point, relying on Regulation 7(1) of the Regulations issued in terms of the Justice of the Peace and Commissioner of Oaths Act, 1963. The regulation provides that "a commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he has an interest". The court interpreted the word "interest" as referring to a pecuniary interest. It held that, because the attorney concerned was not representing the National Lotteries Commission in the review application, the attorney had no pecuniary interest in the matter, and the preliminary point had to fail.
Turning to the main issue, the court held that the chairperson, as he sat as the employer, ought to have known that the National Lotteries Commission's disciplinary policy provides for dismissal for offences such as gross dishonesty. There was therefore no basis for the chairperson to impose a sanction of a suspended dismissal. In light of the importance of the trust relationship between an employer and an employee, the court held it was unlawful for the chairperson to require the National Lotteries Commission to be saddled with an employee that had been correctly found guilty of gross dishonesty – an offence which goes to the heart of that relationship.
The court also held that the sanction assaulted the parity principle, and if it were to stand, it would "spell doom and have dire consequences" for employers. Most importantly, it would open "floodgates of anarchy" which the courts ought to guard against. In the circumstances, the Court held that the sanction had to be replaced with a sanction of summary dismissal.
Comment
The Labour Court justified the setting aside of the chairperson's sanction on the basis that dismissal was the appropriate disciplinary sanction, as prescribed in the employer's disciplinary code. The court also seems to have rejected the concept of suspended disciplinary sanctions. In principle, however, there appears to be no obstacle to such a sanction being included in a disciplinary code, especially where the code is the product of collective bargaining. But the court's perhaps overstated reference to the parity principle and the prediction of "dire consequences" and "anarchy" does raise an important point. The wider the range of disciplinary sanctions that a chairperson may impose, the greater the possibility of chairpersons imposing different sanctions. This may give rise to allegations of inconsistent treatment and the infringement of the parity principle.
Reviewed by Peter Le Roux, an Executive Consultant in the Employment practice.
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