The outcome of a disciplinary hearing will not always be favourable to an employer. We are often faced with the question of whether, in such circumstances, the employer is permitted to interfere with the sanction imposed by the chairperson of a disciplinary enquiry only on the basis that the employer is not satisfied with the outcome.
The Labour Appeal Court has, in the decision of BMW SA v Van der Walt and subsequently, in the decision of Anglo American Platinum (Ltd) v Edwin Andriaan Beyers, confirmed the principle that an employer may interfere with the sanction imposed by a disciplinary enquiry chairperson in certain circumstances. Whether such interference is justified will be determined with reference to considerations of fairness – which apply to both the employer and the employee, and whether such interference is informed by exceptional circumstances.
The sanction imposed by a disciplinary enquiry chairperson may be revisited even when the employer’s disciplinary code does not specifically make provision for an internal review process.
In determining whether it is fair to interfere with a chairperson’s sanction, the interests of both the employee and the employer must be considered, and the interests of the employer in reviewing the sanction imposed by the disciplinary enquiry chairperson must outweigh those of the employee.
Fairness is determined by the facts of each case; there is no defined set of factors that must be considered to determine fairness in the circumstances.
As per the case of Van Rensburg v Rustenburg Base Metal Refineries, an employer should only consider reviewing the sanction imposed by the disciplinary enquiry chairperson where the following is evident:
- The facts available to the employer at the disciplinary hearing did not sufficiently illustrate the gravity of the employee’s conduct;
- The decision, based on the facts before the chairperson, was so shocking that it shows that there was a sign of bias, bad faith or a failure by the chairperson to apply his or her mind; or
- The employer’s disciplinary policy has been disregarded.
Even in instances where an employer’s disciplinary code does not make provision for an internal review, an employer would be entitled to review the sanction imposed by the disciplinary enquiry chairperson provided that there are exceptional circumstances which warrant the interference and it is fair to do so. Given the gravity of the consequences of incorrectly interfering with a disciplinary enquiry chairperson’s decision, we highly recommend that you get seek legal advice before proceeding to do so.