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03 Aug 2021
BY Siphile Hlwatika

Can an employer interfere with a decision of an appointed chairperson and substitute it with dismissal?

When can an employer in the private sector interfere with a disciplinary sanction imposed by a chairperson of a disciplinary hearing, in circumstances where the employer’s disciplinary code and procedure make no provision for such interference?

In the recent decision in Anglo American Platinum (Ltd) v Edwin Andriaan Beyers, the Labour Appeal Court (“LAC”) was confronted with this question. In this case, the employee,  Mr Edwin Beyers, was employed by Anglo American Platinum Ltd as a senior electronic foreman. On 21 April 2016, Mr Beyers was served with a suspension letter pending an investigation into an alleged breach of lockout procedures. On 3 May 2016, Mr Beyers was issued with a notice to attend a disciplinary hearing.

Mr Beyers pleaded guilty to the allegations against him and the disciplinary chairperson found him guilty of breaching his obligation to follow proper lockout procedures. Mr LeRoux Esterhuyse, who was Anglo American’s appointed initiator at the disciplinary hearing, presented a written submission to the following effect:

“After my investigation, I found that the workplace was safe and no one was ever put in harm’s way. This was a breach in procedure only. This is also the first offence of Mr Edwin Beyers and the relationship is still healthy.”

The disciplinary chairperson imposed the disciplinary sanction of a final written warning and required Mr Beyers to undergo training on the lockout procedure. Mr Beyers was sent for retraining and was subsequently instructed to report for duty.

The National Union of Mineworkers (“NUM”) lodged a complaint regarding Mr Beyers’ final written warning, accusing Anglo American of the inconsistent application of discipline, and alleging that its members who had been found guilty of the same transgression in the past were dismissed. Consequently, Anglo American decided to review the chairperson’s sanction. A review panel was appointed and a hearing was held. The review panel recommended dismissal as an appropriate sanction, and Mr Beyers was summarily dismissed.

CCMA proceedings

Mr Beyers referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The arguments in the CCMA’s proceedings centred around the LAC’s decision in BMW (SA) (Pty) Ltd v Van Der Walt, where the LAC held that:

“Whether or not a second enquiry may be opened against an employee would, I consider, depend upon whether it is in all the circumstances fair to do so… In labour law fairness and fairness alone is the yardstick… I should make two cautionary remarks. It may be that the second disciplinary enquiry is ultra vires the disciplinary code. That might be a stumbling block. Secondly, it would probably not considered to be fair to hold more than one disciplinary enquiry save in rather exceptional circumstances.”

The commissioner held that Anglo American had established that there was a practice of internal reviews in the workplace, that such practice was fair, and that its invocation, in this case, was justified. The commissioner further held that the offence was serious and that, given Mr Beyers’ seniority, his dismissal was justified. The commissioner therefore found that the dismissal was both procedurally and substantively fair.

Labour Court proceedings

The Labour Court found that the commissioner’s decision was reviewable and held that Anglo American had not demonstrated exceptional circumstances that warranted its intervention in Mr Beyers’ disciplinary proceedings. Although Anglo American sought to rely on the consistent application of discipline as a bona fide reason for its intervention, it had failed to adduce proof that the sanction of a final written warning was inconsistent with sanctions issued in similar circumstances in the past; despite the issue being specifically placed in dispute. As a result, the Labour Court held that Mr Beyers’ dismissal was substantively unfair and ordered reinstatement.

Labour Appeal Court proceedings

On appeal to the LAC, Anglo American contended that, in the BMW decision, the LAC decided that fairness is the overriding consideration in labour disputes. Accordingly, whether a second enquiry may be convened will ultimately depend solely on whether it is fair to do so. Anglo American further contended that the Labour Court had erred in not applying the binding authority of Branford v Metrorail Services, which held that fairness is the test to be applied when determining whether an employer may intervene in disciplinary proceedings and hold a second enquiry.

It was further contended that the Labour Court erred in its interpretation and application of the principles set out by the LAC in BMW and that it was fair in the circumstances for Anglo American to have changed the sanction of a final written warning to dismissal. This was because of the seriousness of the offence, the inconsistency of treatment that resulted from the chairperson’s decision, and given that Anglo American dismissed employees guilty of breaking safety rules.

Mr Beyers argued that any notion to the effect that the Labour Court gave no consideration to, and did not view “fairness” as a principal consideration, ought not to be sustained. He also contended that the exceptional circumstances relied on by Anglo American to justify its interference with the disciplinary sanction were premised on the objection by the NUM that a final written warning constituted the inconsistent application of discipline. No evidence was tendered that, in the absence of such trade union intervention and insistence, Anglo American would have had any cause or motivation to interfere with the said sanction.

The LAC held that it was only after the disciplinary hearing chairperson consulted with Anglo American’s ER manager, Mr Hlokwe, that the final written warning sanction was imposed. In his testimony, Mr Hlokwe did not dispute the fact that he sanctioned the final written warning. The LAC, relying on its previous decision in MEC for Finance KwaZulu-Natal and Another v Dorkin NO, further held that, while the test was ultimately one of fairness, it would probably be unfair to subject an employee to further disciplinary action except in exceptional circumstances.

Finally, the LAC held that Anglo American was aware that a sanction of a final written warning had been imposed, had accepted this sanction, and had acted in accordance with its terms by retraining Mr Beyers on the lockout procedure and subsequently instructing him to report for duty. Anglo American had no objection to the sanction until the NUM raised a complaint. The LAC held that the commissioner failed to determine whether fairness between Anglo American and Mr Beyers, informed by exceptional circumstances to do so, justified the interference with the sanction imposed by the disciplinary enquiry chairperson. Consequently, the LAC held that the Labour Court’s decision to set aside the arbitration award was correct. The appeal was dismissed with costs.

Comment

This LAC decision highlights that the requirement of fairness is the threshold for determining whether an employer is entitled to substitute a disciplinary sanction imposed by a chairperson. It is also evident that exceptional circumstances will have to exist in order to justify such substitution. As a result, the requirement of fairness cannot be separated from the requirement of exceptional circumstances. These two considerations are therefore equally important when an employer considers substituting the decision of an appointed chairperson.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica’s Employment department.

Siphile Hlwatika

Employment | Candidate Legal Practitioner 

shlwatika@ENSafrica.com

+27 60 985 5155