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Time is of the Essence … Procedurally Speaking 

by NAA’ILAH ABADER

Published: May, 2019

Submission: May, 2019

 



Dismissals for misconduct are required to be for a fair reason and in accordance with a fair procedure. A fair procedure entails that disciplinary action be taken within a reasonable period of time.

 


In the recent decision inStokwe v Member of the Executive Council: Department of Education, the South African Constitutional Court highlighted this procedural requirement that disciplinary action must be taken within a reasonable period of time. This is because the Labour Relations Act, 1995 espouses the speedy resolution of labour disputes.


In this case, the applicant was, at the time, employed by the Department of Education as the deputy chief education specialist in the learners with special needs education section. She awarded a “temporary” service contract to her husband’s transport company in circumstances where one of the transport providers contracted to the department unilaterally terminated their services with immediate effect. The applicant did not obtain the required permission from the head of department to make the award and the department accordingly levelled allegations of misconduct against her.


Of importance is the timeline leading up to the applicant’s dismissal.


  • August 2009: the temporary service award was made by the applicant.
  • 16 September 2009: the applicant furnished the department with an internal report explaining the circumstances resulting in her making the award to her husband, presumably as part of the department’s investigation into her conduct.
  • 22 July 2010: the department levelled allegations of misconduct against the applicant.
  • 12 August 2010: The disciplinary hearing was initially scheduled for this date.
  • 30 March 2011: the actual date that the disciplinary hearing was held.
  • 22 June 2011: the department informed the applicant that she was guilty of two of the four charges levelled against her and that she was dismissed. She requested reasons for the decision and appealed against her dismissal. In terms of the Employment of Educators Act, 1998, a sanction may not be implemented pending the outcome of an appeal and the applicant was therefore retained in her position because she had lodged the appeal.
  • 17 October 2011, 6 March 2013 and 3 May 2013: the applicant addressed correspondence to the department requesting reasons for its decision to dismiss her and recording that the appeal process had yet to be finalised.
  • 5 December 2013: the department furnished the applicant with reasons for her dismissal.
  • 14 February 2014: the department dismissed the appeal and the sanction of dismissal took effect. The sanction was imposed more than five years after the alleged misconduct took place.

The applicant referred an unfair dismissal dispute to the Education Labour Relations Council in terms of which she alleged that her dismissal was substantively and procedurally unfair. The arbitrator found that the dismissal was substantively fair but did not make a finding in relation procedural fairness. The applicant then sought to review the arbitration award in the Labour Court. The Labour Court dismissed the review application and denied leave to appeal. The Labour Appeal Court also denied leave to appeal. The applicant then approached the Constitutional Court and applied for leave to appeal. The Constitutional Court granted leave to appeal on,inter alia, the basis that this matter raised an issue relating to an inordinate delay in concluding disciplinary proceedings and its bearing on the fairness of the disciplinary procedure and dismissal, a question that had not been considered by the Constitutional Court before.


The Constitutional Court held that the arbitrator did not reach an unreasonable decision in relation to the substantive fairness of the applicant’s dismissal.


In relation to the issue of procedural fairness, the Constitutional Court was unimpressed by the department’s conduct:


“Given the lackadaisical approach adopted by the employer in prosecuting the charges, it is not surprising that the appeal – which was lodged in August 2011 – was decided only in February 2014.”


The Constitutional Court held that the requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion and that 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 further held that an appeal is a separate facet of the disciplinary procedure and must be conducted with the same degree of alacrity for procedural fairness to be fulfilled.


The Constitutional Court reiterated the principle that any delay in the resolution of labour disputes undermines the primary objects of the Labour Relations Act. In relation to the fairness of the delay, the court held that whether the delay would impact negatively on the fairness of disciplinary proceedings would depend on the facts of each case.


The Constitutional Court also referred to factors it had previously used to determine what constituted an unfair delay in the context of disciplinary proceedings. Briefly, these factors are:


  • the delay has to be unreasonable (the longer the delay, the more likely it is that it would be unreasonable);
  • the explanation for the delay;
  • the employee’s conduct in asserting his or her right to a speedy process;
  • whether the delay caused material prejudice to the employee; and
  • the nature of the alleged offence.

All these factors must be considered holistically. The Constitutional Court held that the applicant’s disciplinary process was not completed within the shortest possible time-frame, given the excessive delay that was unexplained by the department and that the applicant’s dismissal was procedurally unfair owing to the extraordinary delay in instituting and concluding the proceedings expeditiously.


The appeal was accordingly upheld with costs and the matter was remitted to the Labour Court to determine an appropriate remedy.


Lesson to be learnt for employers


This case illustrates that an important element of procedural fairness is to ensure that disciplinary proceedings, including any appeal processes, are concluded expeditiously. In circumstances where delays are unavoidable, employers should ensure that they are able to provide an explanation for the full period of the delay to avoid falling short of the requirement of procedural fairness. An excessive and unexplained delay may be detrimental to an employer’s case, particularly in circumstances where the dismissal of an employee is ultimately found to be substantively fair.


Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.


 


 

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