Yes – the LAC was certainly correct. This is a timely and very welcome reminder of how far we’ve strayed from the basic concepts of the LRA – and of how we need to radically rejig the way disciplinary enquiries should be conducted in the workplace.
Way back in 2008, the Labour Court attempted the re-enforce the original thinking of the LRA – that internal disciplinary enquiries should be conducted with the minimum of formality provided they comply with the principles of natural justice. They should not be conducted as if they are criminal trials in the high court with lawyers taking complicated and obstructive technical procedural points.
Despite this laudable attempt, disciplinary enquiries in the workplace have increasingly morphed into looking and being run like criminal trials. The employee has become the “accused”. The company representative has become the “prosecutor”. The alleged acts of misconduct have become the “charges”. And the findings have become the “verdict”.
It’s not surprising that the criminal form of enquiries has led to assessing evidence and deciding outcomes based on narrow interpretations of the charges as happens in criminal trials. This strict application of criminal law has produced “not guilty” outcomes because the employer failed to prove one or more the elements of a charge.
The LAC made the following refreshing and instructive observations in the EOH case –
“However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.
The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.”
The return to simplicity will only work if the parties are “brave” enough to wean themselves off the strict formality habit. And the CCMA and Labour Court will need to encourage and support the shift to a less legalistic approach.
