Grossly unreasonable and aberrant disciplinary hearing outcomes and sanctions need not stand

• South Africa

• Employment law - Business and human rights

03-03-2021

Most employers go to great lengths to ensure that they treat their employees fairly during their disciplinary hearings. They sometimes even appoint expert external chairpersons to preside over disciplinary hearings, in the expectation that this will ensure that fairness and rationality prevails. But what if the chairperson gets it wrong?

Employers sometimes find themselves in the invidious position where chairpersons of disciplinary hearings have misdirected themselves, are biased, or have simply arrived at findings that are grossly unreasonable or aberrant. For example, a chairperson may find an employee not guilty of misconduct where there was clear evidence that he/she did, in fact, commit the misconduct and should have been found guilty. Another example arises where a sanction imposed by a chairperson was too lenient given, among other things, the gravity of the misconduct for which an employee was found guilty. The question that arises is whether an employer is saddled with outcomes and sanctions of chairpersons that are so improper that a clear miscarriage of justice has occurred.

Fortunately, the High Court has recently confirmed that an employer has options, and is not obliged to permit injustices to prevail.

In the recent case of M v Rhodes University and another (2461/2020) (reported on Saflii and soon to be reported in Butterworths Labour Law Reports), a matter in which we successfully represented our client, the High Court (Eastern Cape Division, Grahamstown) considered and determined this issue.

The facts of this case, briefly put, are as follows. During 2020, the university initiated a disciplinary enquiry into very serious allegations of gross misconduct by one of its employees, Mr M. At the conclusion of his disciplinary enquiry, the chairperson found that Mr M was not guilty of two of the three charges levelled against him but found him guilty of part of the third charge. The chairperson sought to impose a sanction of, among other things, a final written warning in respect of the charge for which he was found guilty, even though that finding would ordinarily warrant a sanction of summary dismissal.

The university considered that both the chairperson’s outcome and sanction were grossly unreasonable, aberrant, and shockingly inappropriate. In those circumstances (among others) the common law permits chairpersons’ outcomes and/or sanctions to be addressed in one way or another. Against this background, the university decided to convene an internal review hearing where the chairperson’s outcome and sanction would be reviewed internally. The university’s disciplinary code does not expressly state that the university may initiate internal review proceedings; however, it also does not preclude the university from doing so.

Shortly prior to the date of the internal review hearing, Mr M launched an urgent application in the High Court to have the internal review proceedings be declared a breach of his employment contract and, therefore, unlawful, and void ab initio. The essence of Mr M’s argument was that his employment contract and the University’s disciplinary code did not permit the convening an internal review and, as such, the university was not in law permitted to convene internal review proceedings, nor in the manner that it did.

The university successfully opposed this urgent application. After considering the facts of this case and the body of applicable case law, the High Court correctly found that the internal review process was permissible in law. In arriving at its findings, the High Court considered, among other things, that:-

- Both Mr M’s contract of employment and the disciplinary code incorporate labour law principles, including those of natural justice, equity and fairness, which principles must be adhered to in dealing with disciplinary processes;

- Mr M’s employment contract must be interpreted in the context of applicable labour law principles which are based on the fundamental principle of fairness;

- While the university’s disciplinary code did not explicitly cater for an internal review process, it was incontrovertible that the internal review is in line with existing case law authority and is in harmony with the provisions of the disciplinary code;

- the university had demonstrated, to the satisfaction of the court, that it considered the chairperson’s factual findings and sanction to be grossly unreasonable and inappropriate, which justified interference on review; and

- the university’s disciplinary code and institutional statute did not place any restrictions on the university’s right to convene an internal review.

Accordingly, the High Court dismissed Mr M’s application.

This is an important case which serves as a reminder for employers that it is possible, in certain circumstances, to address the decisions of chairpersons where those decisions are, among other things, grossly unreasonable and aberrant. This is even in circumstances where an employer’s disciplinary code does not expressly permit interference with a chairperson’s outcome and/or sanction. However, it is important that the facts of a particular case as well as an employer’s policies and procedures are properly considered prior to taking any decision in this regard in a bid to ensure that an employer’s prospective interference with an outcome and/or sanction is permissible. We highly recommend that legal advice is sought before making any such decisions.