LABOUR LAW in a Nutshell August 2021
CHANGING A SANCTION: Can an employer change the sanction imposed in a disciplinary enquiry?
Yes – it may be possible if it’s fair in the context of exceptional circumstances. So said the Labour Appeal Court in an Anglo Plats appeal in July 2021.
Beyers, a Senior Electrical Foreman, pleaded guilty to a charge of breaching the company’s machine lockout procedures. This was a safety precaution. The chairman of the enquiry found him guilty and issued him with a final written warning. He was also instructed to undergo re-training on the safety lockdown procedures. The reason for the warning instead of dismissal was that the breach was a procedural breach only which did not cause harm to anyone.
NUM complained about the final written warning. They accused the employer of inconsistent application of discipline. This was because some of its members had been dismissed in the past for the same offence.
The employer decided to review the chairperson’s sanction. They appointed a review panel which then recommended dismissal as an appropriate sanction. The employer changed the sanction and Beyers was summarily dismissed.
He referred an unfair dismissal dispute to the CCMA. The CCMA found the dismissal was both procedurally and substantively fair. It said the onus was on the employer to prove that it was entitled on a balance of probabilities to review its sanction. The employer showed that there was a practice of internal reviews in the workplace and that it was fairly applied in this case. The offence was a serious one, and given the employee’s seniority, his dismissal was justified.
The Labour Court disagreed. It said the employer had not demonstrated exceptional circumstances which entitled them to intervene in the disciplinary proceedings. They had failed to produce proof that the sanction of a final written warning was inconsistent with sanctions issued in similar circumstances in the past. The court found the dismissal was substantively unfair and reinstated the employee.
LABOUR APPEAL COURT
The LAC agreed with the Labour Court. It said that an employer may only interfere with the sanction imposed by a disciplinary enquiry chairperson if it is justified by fairness between an employer and employee…and informed by exceptional circumstances.
The employer in this case had no objection to the final warning sanction until the union raised its complaint about inconsistencies. If an employer relies on a union’s concerns about the consistency of the sanction, it must produce evidence of the inconsistencies. The employer failed in this case to produce any evidence of similar misconduct in relation to the lockout procedure which invariably resulted in dismissal.
TIP: An employer would need very compelling reasons to interfere with a sanction. After all, the sanction is imposed by the employer’s representative acting as the chairperson – usually a manager. Or it could be an external person appointed by the employer. Either way, changing the sanction amounts to challenging the judgement of its own representative. It would undermine the legitimacy of the internal disciplinary processes and outcomes if it was easy for an employer to change a sanction it was not happy with. There must be compelling reasons of fairness to both the employer and the employee – and exceptional circumstances – to justify a changing a sanction.
Anglo American Platinum Ltd v Beyers and Others (JA122/2019)  ZALAC 16 (2 July 2021)
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