Industrial Relations Workshop

• Industrial Relations workshop
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• Introduction
• Underlying principles to be addressed
• Workshop - Chairing Disciplinary Hearings
• Workshop - Initiating Disciplinary Action
• Learning Resources
• Duration
• Delegates
• Costing

Enquiries:

Introduction

This Industrial Relations course, comprised of the following training interventions

• Chairing a disciplinary hearing (in-house)

• Initiating disciplinary action (in-house)

is designed to enable managers to conduct proper disciplinary hearings and to administer disciplinary principles in a fair and consistent manner. 

It will lead delegates through the required procedural and substantive aspects pertaining to disciplinary action principles as contained in the Labour Relations Act and related Codes of Good Practice and recent employment case law.

More importantly, managers will realise that the process of implementing discipline, whether resulting in dismissal or simply warnings, need not be a difficult time consuming process.

Some surprising aspects of disciplinary hearings delegates will learn on this workshop

Strict classification of disciplinary offences not a rigid rule

The classification by the LRA of dismissals into those related to the employee’s conduct, those relating to the employee’s “capacity”, and those relating to the employer’s operational requirements is sometimes a recipe for confusion. If employers classify the reason for the dismissal incorrectly, they are bound to follow the wrong procedure, and will most probably end up having to compensate the dismissed employee even if there was good reason for the dismissal.

In SA Broadcasting Corporation v CCMA & others (Labour Court case no. JR466/03, dated 30 December 2005, unreported) the judge acknowledged that the “notional line” between the various circumstances that may give rise to a fair dismissal is not always easy to draw. The same conduct may sometimes fall into different categories.

The judge’s solution to cases of this sort was eminently practical: forget about form and to ask whether there was a fair reason for the dismissal and whether it was in accordance with a fair procedure.

The different procedures suggested in the Code of Good Practice: Dismissal for cases of misconduct, poor work performance or incapacity are not cast in stone. Procedures are merely suggested according to the obvious differences between situations in which employees can be blamed for their lapses and those in which they are not at fault. In cases of genuine incapacity, there is no point in asking an employee to “state his or her case”. But where employees straddle the line between misconduct and poor work performance, all that matters is that they are given an opportunity to do so.

Formulating Charges

"… my comments and observations should be regarded as support for the dictum in Mondi Timber Products v Tope 1997 3 BLLR 263 (LAC) where the Court held and I quote: ‘ Moreover, at disciplinary inquiries presided over by laymen, it cannot be expected that all the niceties which a formal court of law would adopt will always be observed’. Thus, in my opinion, the standard proposed by the lawyer for the Referring party in the drafting of charges is in the present case a too high standard for the Employer, who after all is a layman.  See also Police and Civil Rights Union v Minister of Correctional Services & Others (1999) 20 ILJ 2416 (LC), where it was held that complaints need not be drawn up with the precision of those in criminal trials.

CCMA’s rejection of breathalyser tests overruled by the Labour Court

The use of “breathalyser” kits for testing the sobriety or otherwise of employees has long been dogged by controversy. Some employees given to tippling on duty have wriggled off the hook by persuading arbitrators that the device was inaccurate; others by claiming that evidence of the test results are inadmissible unless confirmed by an expert.

The commissioner under review in Exactics-Pet (Pty) Ltd v Petalia NO & other (Labour Court case no.: JR1610/ dated 24 October 2005, unreported) rejected breathalyser tests on both grounds. For good measure, he also ruled that the company could not rely on observation of the employee’s physical condition (red eyes, unusual garrulousness, unsteady gait, etc) to prove that he was too inebriated to work because, in spite of all that, the employee had been allowed to continue working for about two hours while a breathalyser kit was being located. 

The Labour Court overturned the Commissioner’s award, stating that not only are breathalyser tests more than sufficient, but also than visual observations of being under the influence are sufficient.

Procedural requirements for disciplinary hearings

NEHAWU and others v Avril Elizabeth Home deals with the review of an arbitration award, but in the course of its judgment, the  Labour Court made some important comments on procedural fairness in dismissals for misconduct. The arbitrator (a CCMA Commissioner) had held that a dismissal was procedurally unfair because a disciplinary enquiry had been chaired by a subordinate to the CEO of a charitable institution, in circumstances where the CEO had been the complainant. This, said the Commissioner, gave rise to an apprehension of bias to an extent that it could not be said that the disciplinary hearing was fair.

The  Labour Court examined the history of the procedural fairness requirement in unfair dismissal. It traced the development of the 'criminal justice' model, developed by the industrial court in the 1980's. This model required a workplace enquiry along the lines of a criminal trial, with charges of misconduct, evidence, the application of the rules of evidence, rules in relation to bias and the like. The Court noted that the new LRA had introduced an entirely different model. This model, which finds reflection in the Code of Good Practice: Dismissal, requires only an investigation by the employer, the formulation of any allegation that may flow from that enquiry, an opportunity for the employee to state a case in response to the allegation with assistance if required, a decision, and notice to the employee that he or she was free to pursue any dispute in the CCMA.

The balance struck, said the Court, was one that lessened the procedural burden on employers while establishing a right to expeditious arbitration, on the merits and in the form of a rehearing, if the fairness of a dismissal was disputed. This meant that the 'criminal justice' model had no place under the LRA, unless employers continued to apply it in terms of their own procedures, or in the public sector, where administrative law requirements might demand it. But as a general rule, there was no need for employers to hold formal hearings before dismissal. This conclusion was fortified by the Code of Good Practice (the Code states that a 'formal hearing' is not required and makes no mention of a right to an appeal) and by international labour standards.

The rule against bias applied by the Commissioner was held to be part of the 'criminal justice' model, and out of line with the new conception of procedural fairness that the LRA introduced. The Commissioner's decision was therefore reviewable.

Medical Certificates

Nicholson JA very recently commented as follows at [27] on page 247 in the  Labour Appeal Court matter of:

Mgobhozi vs Naidoo NO & Others [2006] 3 BLLR 242 (LAC)

'The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread - as I believe they are - it strengthens the need for courts to be especially vigilant against their misuse.

One inference to be drawn in this application is that medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments'

In a nutshell, the Labour Appeal Court has now made it unequivocally clear that medical certificates in the absence of supporting affidavits by doctors constitute "inadmissible hearsay evidence".

Cited in Nale and Mr Price (20060331) GAPT11102-05 [CCMA] per  Commissioner: Braam van Wyk

Underlying principles to be addressed

These workshops will address the following underlying issues and behaviours essential for the proper management of disciplinary hearings.

Communication Behaviours - These behaviours provide initiators and chairpersons with essential skills in conducting and controlling disciplinary hearings

Addressing and controlling disruptive behaviours

Dispelling common myths

• The true role of requesting employees to plead to the charges

• Procedural requirements in light of recent  Labour Court judgments

Managing the employee in the workplace after a disciplinary hearing (in the absence of a dismissal)

Special considerations

• Legal representation

• Disciplining shop stewards

• Post disciplinary procedures, including conciliation and arbitration proceedings

Workshop - Chairing Disciplinary Hearings

1. Fair Decision Guides to conducting disciplinary hearings

2. Chairing Appeal Hearings

3. The distinction between investigative and inquisitorial approaches

4. Ensuring procedural and substantive fairness requirements

5. Presentation of evidence

6. Evidentiary principles

7. Procedural elements to disciplinary proceedings

8. Examination in chief

9. Cross examination

10. Re-examination

11. Evaluating evidence to determine guilt

12. Determining sanction

13. Aggravating and mitigating circumstances

14. Landman’s “Unitary Theory of Sanctions”

15. Principles of consistency & progressive discipline

16. Informal disciplinary hearings and procedural and substantial elements

17. Administration

18. Managing the employee in the workplace after a disciplinary hearing (in the absence of a dismissal)

Workshop - Initiating Disciplinary Action

1. Fair Decision Guides to conducting disciplinary hearings

2. Preliminary considerations in initiating disciplinary action

3. Collation of and securing evidence

   1. Witness testimony

   2. Documentary evidence

   3. Audio visual evidence

   4. Identifying possible defences and counter-allegations

4. Formulating charges

   1. Primary and secondary allegations

   2. The analogy of “competent verdicts”

   3. Identifying the components of charges (essential elements to various charges)

5. Presenting evidence and proving versions on “a balance of probabilities”

6. Closing arguments

7. Presenting evidence in support of sanctions

8. Informal disciplinary hearings and procedural and substantial elements

9. The role of the initiator in appeal hearings

10. Administration

Learning Resources

Delegates receive comprehensive workbooks which include learning resources, templates and skills practices.

In addition, delegates receive the following resources: 

Workshop Material

Delegates receive a comprehensive workbook 

Delegates

This course is suitable for

• Human resource practitioners
• Industrial relations practitioners
• Senior line managers