Association of Mineworkers & Construction Union on behalf of Molefe and Impala Platinum Ltd (2014) 35 ILJ 1690 (CCMA)
It is procedurally unfair for the Chairperson of a disciplinary enquiry to formulate and add a new charge.
Facts:
The employee was employed as a supervisor in the employer's accounts division. She was charged with two offences but found not guilty of either and was instead dismissed on a new charge formulated by the chairperson at the disciplinary hearing. The union, acting on behalf of the employee, referred a dispute to the CCMA alleging that she had been unfairly dismissed. The dispute was not resolved at conciliation and was referred to arbitration.
At arbitration it was the employer's version that during the investigation relating to the other two offences, the employee admitted having received a gift voucher from a supplier which she did not declare in terms of the employer's procedure. The employer admitted that the charge-sheet did not make specific reference to the failure to disclose receipt of the gift voucher but submitted that the employee had been charged with breaching the code of ethics (albeit in relation to a different set of facts) and evidence was led with regard to the vouchers. The chairperson was satisfied that a general interpretation of the code of ethics justified his finding. He considered her conduct to be a serious breach of the employer's code of ethics, particularly as the employee worked in the finance section which required a high level of trust.
The employee advised that she told the interviewer that a supplier had brought two gift vouchers to her and she kept one for herself and gave one to her supervisor. She made the disclosure in response to the interviewer's request that she raise any matter of concern, and was not told that it would be used against her in the future. The incident had occurred in 2010. Although the gift had not been recorded in the employer's gift register, she had not attempted to conceal it and had advised her supervisor about it.
The commissioner found the dismissal to be procedurally unfair because the employee was issued with a notice of enquiry which did not accord with the charge in respect of which she was eventually found guilty. The chairperson imported charges brought to his attention through extrinsic evidence which was not in support of the charges for which the employee was charged. He overstepped his mandate in this regard and displayed bias.
The commissioner found that the employee was unfairly dismissed and ordered her retrospective reinstatement.
Extract from the award:
Molapo, Commissioner:
[55] Section 188(1)(b) of the Labour Relations Act 66 of 1995 as amended provides that:
'A dismissal that is not automatically unfair, is unfair if the employer fails to prove . . . (b) dismissal was effected in terms of a fair procedure.'[56] The applicant challenged the procedure and I find the dismissal procedurally unfair. This is mainly based on the fact that the applicant was issued with a notice to attend the hearing, which specifically informed her of the full particulars of the charges she was called upon to answer in the hearing. According to the notice to attend the disciplinary hearing, the applicant had the right to be afforded at least three days to prepare for her charges.
[57] The chairperson of the disciplinary hearing ticked in the affirmative under item 2 of the hearing procedure checklist, which contained a clause that he conducted the enquiry in accordance with the company's disciplinary code and procedure. However, the chairperson agreed during the arbitration that he found the applicant not guilty on the charges she was presented with and for which she had prepared a defence. He agreed that he dismissed the applicant for imported charges which were brought to his attention through extrinsic evidence which was not brought in support of the charges the applicant was charged for. The chairperson read the charges to the applicant and asked her if she understood the charges, yet in his conclusion he deviated from the very charges which formed the gist of his enquiry.
[58] The chairperson of the disciplinary hearing clearly overstepped his mandate by failing to make a determination on the material that was brought by the respondent before him and conveniently looked elsewhere to find wrongdoing on the part of the applicant. It cannot be correct that the applicant was afforded an opportunity to prepare for the imported charges in accordance with the respondent's disciplinary procedures. One can safely conclude that the chairperson displayed a high level of bias against the applicant by relying on irrelevant considerations in dismissing the applicant. The chairperson clearly did not comprehend the respondent's complaint and case against the applicant and instead substituted the respondent's complaint with his own. I find the applicant's dismissal procedurally unfair.