D740/99/JSD/01 JUDGMENT
REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D740/99
DATE: 2 MARCH 2000
In the matter between:
Applicant
and
First Respondent
Second Respondent
COMMISSION FOR CONCILIATION,
Third Respondent
Fourth Respondent
JUDGMENT
LYSTER AJ
[1] This is a review application brought in terms of section 145 of the Labour
Relations Act in which the applicant seeks to set aside the award of a
Commissioner of the CCMA. In terms of the award the Commissioner, being
fourth respondent in this matter, confirmed the dismissal of the first and
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second respondents but awarded substantial compensation for procedural
unfairness.
[2] In short, the fourth respondent found that the disciplinary procedure was
flawed because the question of mitigation was not properly dealt with. He
expressed himself as follows.
"I am, however, inclined towards the view that the purpose and function of mitigation should
be properly and thoroughly explained to employees only after a verdict has been announced.
It may not always be satisfactory to deal with it in the initial stages. There could be a number
of reasons for this. Firstly, the accused employee might not focus his or mind as clearly and
sharply upon mitigating factors as on matters pertaining to the substance of the charges. On
the other hand, if part of the inquiry is set aside to deal only with sanction, then such an
employee might well deal with it differently and certainly in a more focused manner.
Secondly, it is an opportunity for an employee who is denied guilt throughout to make a
confession of guilt and give an explanation for the earlier denial, for example, he or she might
say that guilt was originally denied because of fear about the reaction of a spouse coming to
know about the incident, but after guilt has been proved and found that there is no longer
any space for such fear, the employee might then wish to come clean."
[3] The critical question, therefore, to be decided is whether the fact that
mitigating evidence was not presented after the verdict stage is a sufficiently
material procedural flaw warranting an award of compensation.
[4] The respondent is of the view that the Commissioner is not correct in finding
that a two stage procedure is necessary, and furthermore, argues that if it was
a defect in the inquiry this would have been cured at the appeal stage.
D740/99/JSD/01 JUDGMENT
[5] In this matter first and second Respondents presented brief evidence in
mitigation at the end of their evidence, prior to the chairperson having
considered as to whether they were guilty of the offences with which they were
charged.
[6] The law on this matter is very clear on the question that the failure to take into
account mitigating circumstances of the employee renders a dismissal
procedurally unfair. As far back as 1987 the Industrial Court said that the
distinction between substantive and procedural fairness and the need to
ensure the full consideration of both, require the question of the appropriate
sanction to be distinctly addressed at a disciplinary enquiry with an opportunity
for the employee to advance arguments on the point. This principle has been
consistently upheld by the Courts in a number of subsequent cases.
(See : National Auto Mobile & Allied Workers Union v Pretoria Precision
Castings (Pty) Ltd (1985) 6 ILJ 369C at 378 E-F; Bassett v Servistar (Pty) Ltd
(1987) 8 ILJ 503 IC at 509 C; Chemical Workers Union & Another v AECI Paints
Natal (Pty) Ltd (1988) 9 ILJ 1046 IC at 1051 A-E; Moahlodi v East Rand Gold and
Uranium (1998) 9 ILJ 597 IC at 605 F; NUM v Amcoal Colleries Limited (1989)
10 ILJ 733 IC at 742 I ; Nkomo v Pick and Pay Retailers (1989) 10 ILJ 937 IC at
941 B; Muller v Yichiho Plastics (Pty) Ltd (1993) 4 (8) SALLR 5 IC 8L;
Molete v Industrial Lead Works (1995) 4 LCD 51 IC; Nyembezi v NEHAWU
(1997) 1 BLLR 94 IC at 106F).
[7] While the Courts are clear, as is the guideline provided by item 3(4), Schedule
8 to the Labour Relations Act, on the need to hold a distinct inquiry into the
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question of sanction, and to take personal and other circumstances of the
employee into account, they are silent as to whether this should be a two stage
inquiry in the sense that the distinct inquiry spoken about should only take
place after the finding of guilt has been made.
[8] In my view, it is desirable that it should, for the reasons which were put forward
by the fourth respondent, and in an ideal world this is undoubtedly how a
chairman of a disciplinary inquiry would conduct himself. It is certainly how
presiding officers in criminal proceedings are required to conduct themselves.
However, we do not live in an ideal world.
[9] The sorts of people who are called upon every day to conduct disciplinary
enquiries are departmental managers and heads and the like. They are not
legally trained and they often dispense a robust form of justice which is
tolerated within the parameters of our law.
[10] Are they to be held to the same high standard of procedural fairness as would
be followed, for example, in a criminal court? The Code at schedule 8 provides
very clearly in item 4, that the employer must conduct a fair procedure and
even goes as far as saying that it need not conduct a formal inquiry when
called upon to consider the dismissal of the employee provided that the basic
rules of natural justice are complied with.
[11] The Act, when dealing with the manner in which the CCMA is to deal with
arbitration hearings provides as follows:
D740/99/JSD/01 JUDGMENT
“138(1) The Commissioner may conduct the arbitration in a manner that the commissioner
considers appropriate in order to determine the dispute fairly and quickly, but must deal with
the substantial merits of the dispute with the minimum of legal formalities.”
[12] A fortiori it must follow that an employer when chairing a disciplinary inquiry,
must at best be held to a similar standard and at worst, a far less formal
approach than is required of a CCMA arbitrator. What the Commissioner
appears to have done in this matter, with the best of motives, is to require of
the employer to conduct himself according to a formal procedural process
which he, the Commissioner, is not required to be bound by. This approach
has been expressly applied by the Labour Appeal Court in Mondi Timber
Products v Tope 1997 (18) ILJ at 149.
[13] It is clear that some evidence in mitigation relating to personal circumstances
and length of service, was given during the course of the employee's evidence.
There was nothing to suggest, certainly at the appeal stage, that if the
employees had been given a opportunity after the verdict of guilt had been
handed down, that they would have been any more fulsome in their evidence
in mitigation. Thirdly, it does not appear from the summary in the arbitration
award of the employees’ evidence, that they felt that the opportunity to give
evidence in mitigation was inadequate in any way. The issue seems to have
been raised mero motu by the Fourth Respondent, the arbitrator, himself.
[14] Accordingly, the fact that a two stage inquiry was not held is not a flaw which
would amount to procedural unfairness within the meaning of our law. To
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require a two stage inquiry, ie, a separate inquiry only after the finding of guilt,
is to expect too much of lay employers. To punish them for failing to do so
with a hefty compensation award, is to institute an overly technical and
legalistic dimension into the employer/employee relationship which the new
Labour Relations Act certainly did not intend.
[15] The fourth respondent appears not to have adequately applied his mind in
these circumstances and the award of compensation is accordingly set aside.
There will be no order as to costs.
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LYSTER A
Date of Hearing : 2 March 2000
Date of Judgement: 2 March 2000
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