Can the Employer Re-Do a Disciplinary Hearing?
By Johanette Rheeder
Employers are not always satisfied with the decision of its chairpersons, and the question then arises
whether it can change the finding? In SARS v CCMA & others1
the independent chairperson did not
dismiss the employee, where after the employer dismissed the employee without holding another
disciplinary hearing. The court found that this case is similar to Country Fair Foods (Pty) Limited v
Commission for Conciliation, Mediation and Arbitration & others2
In the Country Fair Foods case the LAC confirmed that without a provision in the employer’s code
permitting the managing director to interfere with the decision of the chairperson, such interference
was unjustified. In the SARS case, the court looked at the collective agreement regulating disciplinary
hearings. In this instance, the collective agreement was silent about whether the decision of the
chairperson of the disciplinary inquiry is final or not. It had no express provision that permits SARS to
substitute the chairperson’s decision with its own. Instead, the collective agreement obliges SARS to
implement the decision of the disciplinary chairperson. The LC found that as SARS did not reserve for
itself the right to substitute the decision of the chairperson of the inquiry with its own, it was bound to
implement the decision of the chairperson. However, if it disagreed with the chairperson’s decision, it
had another remedy.
It should be noted however that this remedy applies to organs of state and not private organisations.
The LC found that although SARS could not substitute the decision of the chairperson of disciplinary
enquiry, it could also not be saddled with an egregious decision. If, therefore, in principle or as a matter
of fairness and justice, it should be possible to reject the decision of the chairperson of disciplinary
enquiry, does the law permit it? The LC found yes, SARS is an organ of State exercising public power and
performing public functions. As the chairperson of the disciplinary enquiry acts in place of SARS, her
decision is reviewable as a decision of SARS as employer under section 158(1)(h) of the LRA.
In Mokoena v Reitz Spar3
the employer unilaterally changed the decision of an attorney who had
chaired the disciplinary enquiry, without another hearing. Since the employer was not an organ of State,
it could not rely on section 158(1)(h) of the Act to review the chairperson’s decision. One of the
decisions the CCMA commissioner relied on, in coming to the conclusion that the employer cannot
simply substitute the chairperson’s decision with its own, was the SARS v CCMA decision. Does this
mean that if a private sector employer, confronted with a decision of a chairperson, does not agree with
the decision or if it does not seem to fit the offence, it must simply accept that decision? These are
As a general rule, employers should be very careful to start the practice of charging an employee more
than once on the same facts. Preferably, this should only happen when new facts arise or where it is
very clear that the first chairperson made a serious error on fact. Such examples can be if the
chairperson was biased, there was a grave mistake in the process, or if there is a clear irrationality or if
the chairperson’s written reasons are nonsense. Under these circumstances it will always be preferable
for the employer to convene a new disciplinary enquiry and start from scratch, and not just simply
substitute the chairperson’s decision with its own.
Under the requirement of a fair procedure, the question also arises often whether an employer can hold
a second hearing if it is not happy with the outcome of the first disciplinary hearing.