In the case of South African Revenue Service v CCMA, Kruger and another, the Labour Appeal Court (LAC) re-affirmed a previous decision of the LAC in relation to an employer’s ability to unilaterally substitute its own decision for that of the chairperson of an internal disciplinary hearing. In this case, the employee had been brought before a disciplinary hearing on charges of misconduct relating to the use of racial slurs. The employee pleaded guilty to the charges and the chairperson imposed a final written warning, suspended him without pay for 10 days, and directed that the employee receive counseling. The employer was not satisfied with this sanction and instead informed the employee that it had unilaterally elected to substitute the chairperson’s sanction with its own sanction of summary (immediate) dismissal. The employee contested this unilateral substitution and, when the matter reached the LAC, it confirmed that, if the chairperson has been given the power by the employer to make a final decision, the employer is not entitled to unilaterally substitute its own decision for that of the chairperson, thus ensuring “the protection of workers from arbitrary interference with discipline in a fair system of labour relations”, according to the LAC. This was despite the very serious nature of the misconduct (racism being very serious misconduct in South Africa). This means that, unless a disciplinary chairperson is specifically empowered to provide only a recommendation, an employer cannot unilaterally alter that decision or substitute it with its own decision, just because it does not agree with the chairperson’s findings.
South Africa