With the increase in remote working arrangements and the risks that come with workplace settings, many employers who are taking disciplinary action against employees, are opting for a disciplinary hearing through written representations. This is used as an alternative to a traditional disciplinary hearing.
The question that arises is when this is permissible and when it is prohibited.
If the employee’s employment contract provides for a traditional disciplinary hearing, or if the employee’s disciplinary code is contractual in nature and provides for a traditional hearing, it is not open to the employer to run a disciplinary hearing through written representations. This would constitute breach of contract, and the employee may be able to obtain an interdict from the Labour Court preventing the employer from proceeding on this basis. The employee may also obtain an order setting aside his dismissal through such a process.
However, if there is no contractual obligation to hold a traditional disciplinary hearing, it is open to the employer to use a process based on written submissions, provided that the process that is used, is procedurally fair.
Procedural fairness is a flexible standard which is rooted in the requirement of audi alteram partem. That principle calls for the hearing of the other party’s side of the story before a decision can be taken which may prejudicially affect such party’s rights.
Schedule 8 to the Labour Relations Act is the Code of Good Practice: Dismissal. It provides guidance on the requirements of fairness in the employment context.
Item 4 of the Code pertains to procedural fairness. Item 4(1) reads as follows:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken…”
It is thus clear that that the essential requirement for procedural fairness is notification about the complaints, and a proper opportunity to respond thereto.