Good Grief . . . So caught in the act so to speak, means absolutely nothing! No wonder crime in this country is on the rampage. Surely the crime itself is what should be tried here and not whether the disciplinary code was correctly followed? In my mind the procedure itself is open to interpretation anyway. The bottom line is that a theft took place and the guilty party should be punished. The fact that it was at the Avril Elizabeth Home, which is a place of safety for abandoned and usually HIV or disabled children makes it all the more heinous! Both of these staff members should not only be dismissed, but should also face jail time - disgusting behavior!

Regards
Nikki

Raymond Meneses
18 October 2006 at 10h00

Disciplinary enquiries frequently evoke a marked flight or fight impulse, with some seeking to avoid involvement, while others prefer the fight option and draw on expertise gleaned from years of watching American legal dramas on the television.

In either event, the result is often messy. Quite how much like a courtroom does a disciplinary enquiry have to be for a dismissal to be procedurally fair?

In the recent Avril Elizabeth Home judgment, this question is examined. The employer had a videotape recording of an employee conversing with a fellow employee while the latter stole a packet containing boots.

A disciplinary enquiry was held, the chairman of which was a member of staff who was junior to the initiator (the person leading evidence on behalf of the employer).

The employee was found to be complicit with the party who stole the boots and dismissed.

Astonishingly, the CCMA found that the dismissal was substantively unfair, as the employee being complicity in the theft was not the only inference which could be drawn from the video evidence.

In addition, because the initiator was senior to the chairman of the enquiry, the commissioner felt that a perception of bias arose, rendering the dismissal procedurally unfair.

On review, the judge made short shrift of the issue of substantive fairness and made comments on procedural fairness which are extremely significant. He noted that the Code of Good Practice in regard to dismissals issued in terms of the Labour Relations Act signified a departure from disciplinary enquiries modelled along the lines of a criminal court.

In terms of the code, a disciplinary enquiry is not always necessary and is, in any event, intended to be a simpler process than commissioners and judges have required it to be since the code was issued.

Test

The test for procedural fairness in terms of the code is simply whether an employee has had an opportunity, within a reasonable time, to prepare a response to an employer's allegation with the assistance of a trade union representative or fellow employee.

This approach has been embraced by no less a legal heavyweight than Professor Halton Cheadle.

Cheadle has, however, warned against the risks involved in employers embracing this judgment and not conducting disciplinary enquiries, or conducting disciplinary enquiries at a far simpler level.

Cheadle has proposed the way out of the current uncertainty is legislative intervention.


Raymond Meneses is a Partner at Shepstone & Wylie and can be contacted at 031 302 0333