Conducting disciplinary enquiries – when do you not need to counsel an employee for poor work performance and what knowledge can the chairperson have of the dispute prior to the enquiry?

In a recent case [now reported as Boss Logistics v Phopi and Others 2012 (3) SA 409 (LC)], an employer challenged the finding of the CCMA, which held that the employee was unfairly dismissed both procedurally and substantively. The CCMA found that the employee, who was dismissed within his first month at the new company, should have been properly performance managed and given training where necessary and that the chairperson, who had received an e-mail prior to the enquiry detailing the employer’s complaints against the employee, should not have chaired the meeting.

In a review application to the Labour Appeal Court, the ruling of the CCMA was reversed and the court made some important remarks in its judgement on the aspect of poor work performance and the role of a chairperson:

  • Where an employee misrepresents his level of competence, skills and experience, he or she cannot reap the benefit thereof when it comes to poor work performance. An employee cannot demand training and performance counselling or other assistance, if he was placed into a position based on a misrepresentation of his skills and experience.
  • The standard of performance required, depends amongst others “upon the nature of the job and the complexity of, the volume or ambit of the work that had to be mastered, the nature and complexity of the employer’s operations, the qualifications and experience of the employee, the level of stress which is inherent in the position, the extent to which the employee is required to exercise his/her own initiative and the extent of the training or induction that may be required”.
  • The courts will not second-guess the time period which is reasonable to evaluate employees’ performance, except where there are indications that the employer “acted in bad faith or in a manner which was otherwise unfair to the employee”.
  • The “measure of instruction, counselling and guidance which an employer has to provide in order to enable an employee to meet the required standard of performance, is dependent on the level of seniority of the employee, his or her qualifications and experience”.
  • Different standards will apply to a manager or senior employee whose knowledge and experience qualify him or her to judge whether he or she is meeting the employer’s performance requirements. The employer in those cases is not required to draw the employee’s attention to the required standards and explore options how to remedy the situation by means of for example further training.
  • With regard to a chairperson, it is desirable for the chairperson not to have any knowledge of the matter prior to the disciplinary enquiry. If, however there are no grounds creating an apprehension that the chairperson was biased (in the Boss Logistics case, the employee only raised this matter at the CCMA for the first time and not at the disciplinary enquiry), having been influenced by the employer, then the mere sight of an e-mail detailing the employers intentions to have the employee dismissed and the complaints levelled against the employee, is not sufficient to render the disciplinary enquiry procedurally unfair.

Whilst the case is good news to employers, it also highlights that it is imperative to give the employee as little scope as possible to challenge disciplinary actions. In the instant case, the employer had to challenge the CCMA decision, most probably at considerable cost.  The manner in which labour law is applied by the different forums can also very considerable, as the present case shows. Employers, especially smaller employers with fewer managerial staff who could act as chairpersons in a disciplinary enquiry, should be careful when deciding upon the person to chair the disciplinary enquiry and should ensure that the person is not appraised of the facts prior to the disciplinary enquiry. It may be in the best interest of the company to appoint an outsider, such as an attorney or labour consultant to act as the chairperson in those instances and the costs thereby incurred will in most instances be far less than conducting a matter in the CCMA and thereafter in the labour courts.


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Web Design by Flutterby