Employees Procedural Fairness Concerns

Here’s what the Ccma award states. How can employee review this at Labour Court? sal set the required conduct of the employer as follows: “Fair procedure (*) 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, and preferably furnish the employee with written notification of that decision. (*) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union. (*) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement. (*) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.” (Emphasis added) *. In Avril Elizabeth Home for the Mentally Handicapped vs CCMA & others (JR782/*) (*) * ILJ * (LC) it was held that an employer was merely required to conduct an investigation, to give the employee an opportunity to respond to the allegations after a reasonable time. Thereafter, the employer was required to take a decision and issue it to the employee. Only signed awards that contain the CCMA approved watermark are authorised. GAJB4489-* Page * of * Last saved on: Tue *-Nov-* *:*:* Last saved by: JimmyL *. The employee challenged the preliminary rulings made by the chairperson. However, I found that on the whole, the procedure followed by the employer prior to her dismissal was fair. She was given a notice of the charges. She was given time to prepare her defense. She was then assisted by an advocate who was also granted the right to represent her during these arbitration proceedings. The employee requested and was granted seven postponements. She received the employer’s bundle of documents in advance. She was allowed representation by a colleague. She was in attendance when the employer presented its evidence. She requested for time to prepare her cross examination. The proceedings were adjourned from 12H30 to 14H00. She cross examined the employer’s witness. She was repeatedly given an opportunity to present her evidence. She flatly refused on record. She was issued with the outcome in writing. She failed to show the material prejudice she suffered as a result of the rulings made by the chairperson. *. In Supreme Poultry (Pty) Ltd v Radiboke and Others (C536/*) (*) * ILJ * (LC) (* October *) the Labour Court held: “[*] Whether a dismissal for misconduct is procedurally unfair hinges primarily on the question of any material prejudice the employee has suffered as a result of the act or omission of the employer. In this case it was argued it was the failure to provide greater detail of the charges in the notice of the enquiry which made the enquiry unfair. Once the details of the charge had been spelled out in the opening address of the employer’s representative at the enquiry, If the chairperson had then not allowed Mr Radiboke and his shop steward to go through the employer’s bundle before the hearing of evidence commenced, or had refused a request for a postponement to allow more time to prepare his defence, that would provisionally indicate that the process had been procedurally unfair. However, there is nothing which showed that Mr Radiboke was unable to address the detailed charges and no request was made for more time to prepare his defence. In the absence of evidence to show that Mr Radiboke’s ability to answer the charges was adversely affected, the arbitrator’s finding of procedural unfairness cannot be sustained. Had she considered the prejudicial effect of the charge and that there was every opportunity to redress any lack of preparation, she could not have reached that conclusion.” (Emphasis added) *. The employee argued that an investigation was not conducted and her statement was not obtained as required by clause *.*.*.* of the Disciplinary Code and Procedure. I found no evidence that the employer complied with clause *.*.*.*. There was, however, no evidence of the material prejudice suffered by the employee. It is common cause that the employee received the charges on * October *. It is further common cause that the employee received the employer’s statement of case and attachments on * November *. The hearing was postponed seven times to accommodate the employee. The employer led its evidence on * December *. On * January * the employee refused to testify. The employee was at all times advised by an advocate and the union. The employee was given more than adequate time to respond to the allegations. She rudely declined the offer. On page * of the Disciplinary Hearing Transcript she refused to testify and be cross examined but rather stated she was “going to sit and listen to you (the chair) and your employer cross examine each other.” She informed the chairperson that because he refused to recuse himself, he was not allowed to be presiding. She stated that she did not recognize him as a chairperson. (Transcript Bundle page *) *. The employee argued that the chairperson was biased. The employee argued that her charge sheet stated that she was not allowed external representation. Mr. Lwandile Hasheni informed the chairperson that the disciplinary hearing was an internal process which excluded legal representation. The chairperson’s decision to decline legal representation was an endorsement of the employer representatives’ position. The disciplinary code does not provide the role of a Facilitator. Mr. Hasheni was allowed to be part of the enquiry even though his role was not included in the code. *. In Sepheka v Du Point Pioneer (J267/*) (*) * ILJ * (LC) at para * the Labour Court held: “[*] Any allegation of bias, especially on the part of a Judge of this Court, must be substantiated by a proper factual basis, must not be based on mere speculation and conjecture, and must be proved by the party alleging bias.” (Emphasis added) *. The transcript of the disciplinary enquiry shows the chairperson’s patience and generosity towards the employee. He granted the employee about seven postponements even when the employer representatives were not pleased. He was patient with the various preliminary points raised by the employee. He applied his mind first and then issued rulings. When the chairperson required a witness to be called, the employee objected and the chairperson Only signed awards that contain the CCMA approved watermark are authorised. GAJB4489-* Page * of * Last saved on: Tue *-Nov-* *:*:* Last saved by: JimmyL upheld the objection. The employee based her view of bias on mere speculation and conjecture. The rulings against the employee are not an indication of bias. There was no proof of bias. *. In Department of Health, Western Cape v Twalo and Others (C159/*) [*] * BLLR * (LC) (* April *) the Labour Court held: “*. Presiding officers of disciplinary hearings are often laypeople and, when compared to CCMA commissioners, seldom legally trained and with less experience of adjudicating disputes. Those presenting evidence are also often lay people. Thus, the decisions of presiding officers in disciplinary hearings must be assessed in that light. Still, bearing in mind these differences, the factors that apply to the requirement that commissioners must “issue an award with brief reasons,” are useful in relation to presiding officers too even though the case law focusses mainly on commissioners and not presiding officers at disciplinary hearings.” *. The employee argued that the chairperson should have allowed her legal representation. Paragraph *.*.*.* (e) of the Disciplinary Code and Procedure provides: “Outside legal representation may be allowed after evaluation of the nature of the complexity of the case. An employee who requests legal representation shall do so at his/her costs.” *. In MEC Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani (*/*) (*) * ILJ * (SCA) the Supreme Court of Appeal held that the Presiding officer at a disciplinary hearing has discretion to grant legal representation. The employee’s attorney made an application for legal representation. The chairperson asked the initiator to respond. The chairperson then declined the application for legal representation in a ruling dated * November *. The chairperson applied his discretion. *. Theprocedurefollowedbytheemployerbeforetheemployee’sdismissalwasfair. AWARD *. The dismissal of Pumeza Olona Ceza by Brand SA was procedurally and substantively fair.

what is the error in the award of the Commissioner regarding procedural fairness?

What will be considered as factual in the award by the Commissioner?

I need you to summa rise the awrd by the Commissioner so i can ask follow up questions

Compared to what the employee is saying about what happened during the hearing is the Commissioners findings fair?

Can i share the employee heads of arguments regarding this procedural unfairness?

How the chair was captured, conflicted and absolutely compromised. Under normal circumstances, the appointment of a chairperson falls in the domain of the employer to apply discipline as a corrective measure to its employees. When the chair took a stand, in particular, under cross examination, he revealed that he was approached by one Mr Lwandile Hasheni, in his office, to be a chairperson in the Applicant’s disciplinary hearing. As if that were not enough, the chair had sponsored voluntarily, a further shocking revelation that Mr Hasheni informed him that the disciplinary hearing was an internal process, and that external legal representation would not be allowed. *. In addition thereto, the chair remembered and explained, that there would be no external legal representative, was also indicated in the charge sheet as such. Truly, the chairperson’s testimony in this regard was *% correct. The correctness can be easily deciphered on the CHARGE SHEET starting from page * of bundle “A” but the issue of interest of reference rests on page * below YOUR RIGHTS. “You are hereby informed that you have a right to represent yourself or to be represented at the said hearing by an employee of Brand South Africa (not an external representative) who may assist you in, inter alia, the following…” *. On page *, the person who appended his signature on the charge sheet was none other than Lwandile Hasheni underneath his name bears EMPLOYEE RELATIONS. This is telling. *. In his evidence, the chair made plain and clear that Mpumi was the one who told him that he wrote “not external representative in the charge sheet”. This assertion is buttressed by the records in the arbitration process and them claiming same, both of them, in their capacity as the employer. *. On the issue of appointment letter, the chair confirmed, just a verbal appointment, there was no letter of appointment for his role as the chairperson. It is, without any shred of doubt, correct to conclude, the fact that the chairperson had consciously accepted and reconciled himself with the fact that there would be no external legal representative would be allowed in that disciplinary hearing. *. In the scheme of things, as they stand in this matter, we contend, with the greatest due respect, Hasheni and Mpumi Mabuza took a conscious predetermined stance to exclude an external legal representative and further duly influenced the chairperson long before the disciplinary hearing. *. How was the chair appointed by an Employee Relations Officer is somewhat perplexing, unprecedented and bizarre in the extreme. The decision of the exclusion of a legal representative was made by Hasheni and Mpumi prior to the hearing and before it was brought to the attention of the chair in the form of an application thereof was tantamount to the usurpation of the chairperson role or function. *. Most importantly, the effect of this conduct amounted to an undesirable act of a chairperson who cannot truly gainsay that his decision not to allow an external legal representative was without due influence. The chair, as we indicated earlier, had reconciled himself with the position of Hasheni and Mpumi Mabuza because he was not just complicit but was actively endorsing the exclusion of a legal representative being in cahoots with the Employer. Thus, the extent to which he was pandering to the whims of the Employer. He was undisputably not independent and impartial which is in conflict with a fair procedure as envisaged in the Code. See page * Applicant’s Bundle “A” “Transcript: Hearing of the * November * CHAIRPERSON: Okay recording done. Good morning, everyone. Good morning, good morning. OK good morning I see we have, what do I have here trying to check the participants list. I see, please correct me I see we have a representative from Masilo Maake attorneys good morning Sir. Hello am I audible? MEMBERS: Chairperson I can hear you loud and clear from my side, I can also hear you chair. CHAIRPERSON: OK welcome everyone, my name is Tebogo Kgaukguri and I have been… OK I see OK no I see that the person that was on the meeting has just left the meeting so I take it to that we can we can continue. My name is Tebogo Kgaukguri, and I have been asked to be the chairperson of this disciplinary inquiry. Let me just admit them, OK good morning Sir can you hear us? Hello. Hello. It looks like he can’t hear you chair. Mr Masilo are you able to hear us? He can’t hear us. Not too sure whether the issue is there. Facilitator: Look chairperson whilst Mr. Make is here I just want to state categorically clear here as the HR business partner, I have been engaging with Mr. Make and I’ve made it very clear at this point that this is an internal matter. I’m just stating it so that the chairperson may know that this is an internal matter and therefore I’m not sure if chairperson you are going to talk to that issue, or must I perhaps allow you to make a ruling in terms of that. I will be will be guided by you chair. CHAIRPERSON: OK. So I understand that Mr Masilo will be, he is the intended representative of the employee. Am I correct in saying so? Yes, you are correct chair. OK, alright so as I’m worried that he can’t respond, I don’t know if he can hear us. I do not know what’s happening with him, we cannot engage with him at all. Mr Masilo Maake: Morning lady and gentlemen, I can hear you. Again thank you thank you so you can take it CHAIRPERSON: OK thank you uh but I’ll I’ll also note that the employee is not present I’m not sure if the employee is in the same area with you Mr Masilo. Employee’s Attorney: No the employee is not with me because she advises me that she has submitted a medical certificate because she's been booked leave due to high pressure and stress, that’s the information that I have, and I’m told that medical certificate has been sent to her supervisor. CHAIRPERSON: OK. Miss Mpumi can I please have a copy of the medical certificate? I haven’t seen that so we can have a look at it. Initiator: Noted chair, I will attach it in the chat, just also would like to add that we sent a communication to Miss Ceza requesting that she ensure that her doctor articulates and states clearly that she’s not capable of participating in a virtual meeting and we have not received that information as yet, but let me attach the medical certificate. CHAIRPERSON: OK thank you. CHAIRPERSON: Alright so just going back then to the normal proceedings by way of introduction my name is Tebogo Kgaukguri, I’ve been asked to be the chairperson of this disciplinary inquiry. Can I please just ask everyone on the call to then introduce themselves before we then proceed. Facilitator: My name is Lwandile Hasheni, I’m the HR business partner managing this process. Thank you. Initiator: My name is Mpumi Mabuza and I am the general manager, stakeholder relations and I am the initiator of the charges. Employee’ attorney: I am Mr Maake, I’m an attorney in Pretoria, I represent the applicant. CHAIRPERSON: Thank you. According to my understanding when I was asked to be the chairperson I was then informed that this is going to be an internal matter which is going to be handled within Brand South Africa, I do note that Mr Masilo is here representing the applicant. May I request that because I have not received any submission from the applicant and from the employer in terms of us having a legal representative? Can I request that the employee or the applicant then do the submission in writing and then send that through to me as the chairperson? Similar to the employer representative that I have those submissions for then for me to be able to then apply myself and then be able to consider what would have been submitted in terms of having legal representation for the employee. Facilitator: Chair, can I just find out how much time are you going to need in in terms of that, you know that submission? How much time are you gonna need? Are you gonna need an hour? Or is it gonna be? When are we going to reconvene? CHAIRPERSON: I just ask from the employer and the employee as to how much time do they need in terms of in terms of preparing those submissions and then I will be guided by that if it is feasible to be done within today’s business, then I will then consider that. Can I have an indication from the employer as to how long it will take? Facilitator: Thank you Chair. Chair I am comfortable as an employer that the process can reconvene tomorrow. It's OK the application can be submitted today and then the chairperson will be given the rest of the day to consider those representations and that the matter will then reconvene tomorrow, thank you. CHAIRPERSON: OK thank you thank you for that guide. Mr Masilo would today be enough time for the submission to be submitted from the applicant’s side? Employee’s Attorney: No chair, but there’s just one issue that I need clarity on. My understanding when Mpumi was addressing you was that she’s the initiator and as far as I understand these processes it is the initiator and the applicant or their respective representatives who needs to address you on these issues. So, I’m not sure if you have two representatives, is it Mr Hasheni and Ms Mpumi or is it Mpumi only who’s representing the organization. Chairperson: Okay Mpumi I see your hand is up. Facilitator: Chairperson can I just come in quickly so that so that we are guided appropriately in terms of these processes? As already has been indicated these are internal processes and already we are going to be bogged down into discussing our internal processes to an external representative. Now chair from a perspective of an employer we’ve made our position very clear in terms of the charge sheet that was issued. The charge sheet that was issued chair made it very clear that external representation would not be allowed, however it is now the process is now at the mercy of the chairperson. I agree fully that it is at the mercy of the chairperson, now I am saying Chair I’ve been entrusted with the responsibility to manage this process and therefore I’m saying that the chairperson does make a indication that he shall allow representations to be made by the applicant’s representative or by the applicant to consider legal representation, and that the employer must do the same. So chair can we just stick to that at this point? Can we stick to the fact that you will allow the presentations be made in that regard so that we do not discuss any other issues at this point, thank you chair. CHAIRPERSON: Thank you for that Mr Hasheni. Miss Mpumi, I saw your hand up. Initiator: Thank you chair I’m comfortable with Mr Hasheni’s contribution to this topic. It is an internal disciplinary hearing, if the chair allows us to make our individual submission, I do indeed represent the employer I am the initiator, and I am comfortable with the time frame that is being guided by the HR business partner. Thank you CHAIRPERSON: OK thank you so much, with that said I would then allow the two parties to then do the submission if I could have the submission set list by *:* PM the latest today so that I can then be able to go through them and then we shall then reconvene tomorrow at *:* AM for us then to give the the outcome of the submissions and then we would immediately then proceed thereafter. Employee’s Attorney: Chair, can I just make my input here? Because when I made an inquiry about Mr Hasheni and Miss Mpumi they don’t want to address you on other things. All I wanted to say is and when you invited me to talk the first thing I said is that I don’t think making the submissions today is possible. You must bear in mind that we are just coming out from a court process, I’m not sure if you are aware that were in the Labour Court this morning, the Labour Court matters just adjourned not long ago. I need to consult with my client for the purposes of this application and she has already indicated to you that she’s not feeling well, she’s already indicated by submitting a medical certificate that she’s not feeling well so the appropriate thing here would be for the matter to be postponed to a mutually stable date. We will workout the timelines that are realistic and that can accommodate all of us. I don’t think chair in your position and you need to take sides in terms of being dictated by all of us in terms of how you are going to handle your responsibilities, your responsibilities must be guided by fairness to all of the parties. So, in this regard then my request to you is that let’s make a realistic assessment, this matter was said last Friday it was postponed today. I don’t see why it should be postponed by mere few hours when there are issues that are fundamentally important for the applicant to be decided on. So, my proposal to you chair what was going to be that perhaps we should agree on a date early next week we can make those submissions to you on Monday, and then you make your decision and then we can reconvene on Monday or Tuesday or Wednesday to hear your decision. I think tomorrow is just too premature and obviously as legal practitioners we have other obligations that are normally taken into account before a decision on hearings are taken, that is my submission chair. CHAIRPERSON: Thank you for that Mr Maake, I’ve just been quiet I was going through the while you were speaking I was going through the sick note that has been submitted. I do take note that as indicated before it is not stating whether the employee cannot be able to attend the virtual session or so but it does however indicate that the employee has been booked off from the 3rd until tomorrow. So, I would then make a ruling, you know it would have been much easier if the employee was here because as I indicated that we this was just going to be a submission that I seek legal representation and we were expecting that the employee would have made the submissions themselves. So I do consider that, I am going for the date of next Tuesday which would be the 9th at the same time *:* o’clock in the morning and we then extended the date for the submissions to be made available to myself by Monday so that I can then be able to go through them, and then we can then reconvene on the matter and then give the outcome of both submissions as to what is the position of the chairperson and that going forward with the with enquiry. Employee’s Attorney: Thank you chair. CHAIRPERSON:Thank you. Initiator: Chairperson is there a time on Monday? CHAIRPERSON: Yes, if I could have it at least by let’s make it *:* o’clock Monday so that I can have those submissions and then it allows me some time as well for me to be able to go through them. Employee’s Attorney: Chair, perhaps the last thing from my side is are you on this same level as the applicant or is your rank higher than that of the applicant? These are fundamental issues in terms of the dismal code. Facilitator: Chair, chair can I just quickly come in here and I’ve said this. Chairperson you are entertaining issues that are internal issues, issues that are not supposed to be entertained at this level. The only issue that we need to focus on at this point chairperson is the whether the chairperson is amenable to accepting representations in terms of legal representation, that’s all chair. We are not going to sit here and continue as if the hearing has started. The hearing has not started the external legal representative already is making representations. Chairperson I move a motion of closing this meeting until representations are made in terms of application for legal representation thank you. Employee’s Attorney: Chair can I just say the following? You are in a position where you have to be fair and impartial to all sides and then I don’t want either myself or Mr Hasheni to articulate matters that are going to compromise your integrity in terms of how you need to handle this matter. This calls then that need to be made in this process need to be made by you and by you alone. All I was asking is that there’s a simple question that I asked and these are fundamental issues that are dealt with before the hearing starts, right. In a normal hearing situation, you will know who is who, who appointed who and all of those things. These are issues that are normally managed even before you get actually into the actual hearing itself, so these issues were supposed to have been canvassed between myself or the employee and the employer party right and but they were not. So I’m just asking this, I don’t think that this is an issue where the statements that have been made are justified, should be made and I’m just iterating that I’m asking you to cease this process so that neither myself nor Mr Hasheni must be seen to be dictating to you how you should handle your problems because if this thing, this issue will have profound implications for the matter going forward if you are not being seen to be acting partially, and you allow either myself or Mr Hasheni to dictate you or you should enjoy your job. Thank you Facilitator: Chairperson with all due respect once more before you say anything I’m gonna say it again. The integrity of this process must be kept intact, this is an internal process and already we have entertained an external legal representative, already and he is participating in these proceedings. I am not even to sure how he even got him through participating in the first place so then chair by virtue of you having allowed him to speak, OK I think the only issue that we should have focused on is on him making legal I mean an application and that’s it not and not any other issue. Chair if you are going to entertain any other issue it will then mean that you have waived any right that you have pertaining to his application, so chair can we please focus on the application and the representations that he needs to make not any other issue that he will raise not at this point. It is indeed again I repeat it is an internal matter not an external matter, thank you chair thank you Mr. Chairman. CHAIRPERSON: Thank you, Mr Hasheni thank, you Mr Masilo for making your submissions. As indicated before, that the request here is very simple that I seek for the Employee and Employer to make submissions that the Employee seeks legal representation and as indicated, this would have been ideal that the Employee do this in person, but I understand however, that the Employee is off sick. I do then rule that we will then reconvene on the agreed date of the * November *, this being a Tuesday at * o'clock and if I could then have those submissions by * o'clock in the afternoon on Monday, or earlier than that it will be greatly appreciated. So, with all other concerns that are there Mr Masilo I believe that the Employee has the right to ask both questions as and when we proceed with the Hearing. I then rule for the meeting to adjourn, and we will then reconvene next Tuesday. Thank you”. *. The above quotation is found on page * from the bottom. It should be noted that in terms of the Code – there is no such a role of a facilitator, and the proceedings are managed by the Chairperson not HR Business Partner. It is clear that the chairperson upon his appointment by Hasheni he was convinced by Hasheni to exclude legal representation, which he did. *. In keeping with what he was informed to do by his handlers (Hasheni and Mpumi) the chair called upon the Applicant (employee) and the Employer to do the submission in writing for legal representation. *. “Date of hearing: ​* November Time:​​​10h03 Venue:​​​Microsoft Teams Present: Chairperson:​​​​Tebogo Gaokgorwe Initiator (Employer):​​​Mpumi Mabuza Employee’s (Accused) Attorney:​Maake Attorneys Facilitator:​​​​Lwandile Hasheni Chairperson: ​Good morning, I am Tebogo Gaokgorwe – the Chairperson of the Hearing. Going through the business of today which is really straightforward in terms of what is expected for the day. In our previous session I had asked the Employee to do the submission in terms of the legal representation as well as the Employer and having applied myself to all the issues and what was presented to me, I am not persuaded that legal representation should be allowed. With that being said, I shall provide written submissions by next week Thursday in terms of what the reasons are for not allowing the legal representation. The new date is to be communicated by the Labour Relations office on Friday, which is the day after the written ruling is provided to the parties. The matter will continue on the new date that will be set. The matter for the day is then adjourned….(See page * Applicant’s Bundle “A”)

Yes, please assist with drafting a review application based on this issue

Why would a Commissioner come to a conclusion that legal representation was denied based on HRs advice? Theres no role for HR in the disciplinary code

yes, i would like you to assist me with arguing against this conclusion by detailing fair procedure as per South African Labour Relations. Is it fair for HR to predetermine what must happen at the disciplinary hearing?

What other specific case laws that support this?

The Chairperson said he didn't know he conducted the hearing based on hearsay evidence

Yes please provide specific arguments and points