What is the legality and commonality of suspended employees choosing chairpersons and presiding officers to oversee their disciplinary hearings?
Patrick Deale, expert labour lawyer from Deale Attorneys, joins Gugu Mhlungu on Night Talk, Radio 702, to answer the question and explore the matter. Reference is made to Matshela Koko’s disciplinary enquiry at Eskom, the intervention of the board, and the presence of media in an internal disciplinary enquiry.
Gugu Mhlungu (Radio 702):
You’ve seen over the weekend, reports that Eskom’s hearings are allegedly being tailored to favour suspended executive Matshela Koko. There are reports of irregular interventions by the Eskom board to ensure that the outcome of that disciplinary process is favourable to Matshela Koko. Even going as far as the board being accused of asking him to choose the presiding officer.
And so, there were questions about, is this standard procedure? How does this process actually work? Should the accused of someone who’s going to be taken through a disciplinary process be involved in choosing any of the people in the process, including the presiding officer?
We are joined on the line by labour law expert from Deale Attorneys, Patrick Deale, on the line to us from Johannesburg, to try and make sense of this latest development at Eskom. Patrick, good evening. Thank you so much for joining us on Night Talk.
Patrick Deale (Deale Attorneys):
Good evening Gugu, and good evening to your listeners. Thank you.
So, in terms of the disciplinary processes, what governs a disciplinary process like this one – particularly at a state-owned-entity? As in, how is it formulated? What guides its procedure?
Well, in the first instance it is actually taken by the employer against an employee. And it is for the employer to take the initiative and also to appoint the chairperson. Normally, it is a chairperson within the organisation. And also the prosecutor or the complainant, who would normally be within the organisation.
It sometimes happens, in fact, it quite often happens, with a senior person in the organisation, especially the CEO, that they would get an external chairperson to chair the disciplinary enquiry. Simply because they need someone of greater authority than the employee concerned. And in that instance, they would appoint an external person. So, they may even appoint an external prosecutor as well because of the seniority factor. So, it is not unusual from that point of view.
What is unusual as far as I can see from this situation, is that Eskom has asked him to choose his chairperson. And that is a procedure that is quite often used in a different setting. Not so much in a disciplinary enquiry, but in a different setting – an arbitration; where it is a voluntary arbitration, it could be a labour arbitration, it could be a commercial arbitration.
One of the benefits of a private arbitration is that you can choose your arbitrator from a list of three. Each put names forward and you choose, so there is agreement on who your decision maker is. But that is when you both agree to go to a disciplinary enquiry. In a disciplinary enquiry, it is not the case where the employee would agree to go to a disciplinary enquiry because it is the initiative taken by the employer. And so normally it is the employer that does it.
But I suppose what has happened here is that they are trying to find a senior person who is sufficiently neutral. And that is the key thing. No matter how the chairperson is appointed, the end result must be that the chairperson must be neutral and be seen to be neutral. And all the processes involved in selecting that person would be important in helping to show that [unclear 03:59] the perception of fairness of the choice of the person is correct. So, you got a competent person that is neutral. That is the most important end-result that you want to get out of it.
You mentioned earlier that often there will be a list of three. And there will be a selection, particularly with the presiding officer, then one person to fulfil that role of the presiding officer. That appears to be part of what happened in this particular instance with regards to Eksom and Matshela Koko’s disciplinary process. If reports are correct, he was asked to elect one name from a list three.
Yes, I think they have used the same sort of procedure that you will often use in a voluntary arbitration; the parties have a say in who will be chosen as the arbitrator. And they have seemed to have used the same procedure in the disciplinary context internally. Which is an unusual situation that may result in a fair outcome if the person who finally is selected as a chairperson is competent and who knows the business and is highly experienced. And the particular chairperson that has been chosen for this particular disciplinary enquiry is a person who is very experienced has got a lot of experience in chairing these disciplinary enquires. He may be a person who will conduct the process fairly and as a neutral. And that really is the final test of it.
And in terms of the concerns around the involvement of the board – what’s called ‘irregular interventions’ by the board – in this process: Generally, what is the extent of the involvement of the board? Particularly, again, speaking about a state-owned entity.
The CEO is accountable and reports to the board. So if there are going to be disciplinary processes, it would be the board who would decide to take disciplinary action.
They would first do an investigation to see that there is a case being made and there is sufficient evidence. And it would be the board’s responsibility to, in fact, take the step to institute disciplinary procedures. So, that in itself is not irregular.
But if they go about the process of appointing – [unclear 6:40] in other words giving the employee concerned, Mr Koko, a choice of who the chairperson may be and also of the prosecutor – choosing the prosecutor is an absolute no-no I would say in this situation. But having a say in who the chairperson would be from a list of senior advocates who are known to be neutral and so on, regardless of how they are appointed, in itself may end up with a fair result and fair choice of a person.
It doesn’t look right. That is for sure. But the end result may be a fair appointment with the right person.
And then in terms of the presence of the media. There was some question about whether or not the media should be allowed to be there. It appears that particularly the former Times Media Group, The Tiso Blackstar Group, would be allowed to attend the enquiry and report on the developments. Is this also normal?
It’s not normal. It’s unusual because remember, this is an internal disciplinary enquiry. And the process of allowing the media into public trials [unclear 08:14] normally external trials. Like trials in the High Court and other kinds of public hearings. But it is unusual. It is very unusual, in fact, to have it in an internal disciplinary enquiry involving an employer and an employee.
And I suppose it is a bit of a test case that it is being done in this way. And I suppose it is because it is in the public interest. And that Eskom has had a lot of focus of attention on it.
And so, I think it should be seen as possibly a good thing. Having the media [unclear 08:59] present. And to oversee the process and to report to the public on it would be another way of ensuring some sort of reporting on the fairness, or otherwise, in which the chairperson conducts the enquiry and in which the prosecutor performs as a prosecutor. And to give a rating to the public on the whole process and whether the participants who are finally chosen actually do a good job or not.
It’s quite a healthy event that has happened, I would say. But it is unusual. It’s not normal, that’s for sure.
Thank you very much. That’s labour law expert from Deale Attorneys, Patrick Deale, joining us on the line from Joburg.
End of the interview transcript.