The Labour Appeal Court has delivered a judgment on 2 July 2021, in Anglo American Platinum Limited v Beyers and Others, dealing with when it is permissible for employers in the private sector to engage in reviewing disciplinary hearing outcomes and altering the sanction imposed by the disciplinary chairperson.
The employee had committed a procedural breach. He pleaded guilty and was issued a final written warning. One of the trade unions, the NUM, then objected to this and accused the employer of acting inconsistently. This prompted the employer to revisit the sanction through a review panel. The review panel opted to dismiss the employee.
The CCMA found that the dismissal was fair. A review application was pursued by the employee in the Labour Court, which overturned the CCMA arbitration award. The employer then purused an appeal in the Labour Appeal Court.
The debate in the Labour Appeal Court centered around whether reviewing disciplinary hearing outcomes is only permissible in exceptional circumstances, or whether the overriding consideration is one of fairness. The court found that the existence of exceptional circumstances is a factor relevant to fairness. It found, in effect, that in order to establish that it is fair to review a disciplinary hearing outcome, the employer must show the existence of exceptional circumstances.
This approach signifies a departure from the Labour Appeal Court’s earlier judgment in Branford v Metrorail Services (Durban) and Others (2003) 24 ILJ 2269 (LAC), where it was found that exceptional circumstances is not a requirement for reviewing disciplinary hearing outcomes, and that instead, the yardstick is one of fairness.
As a result, there are now conflicting judgments on the issue, and in particular, on whether or not exceptional circumstances are required or whether it is sufficient for the employer to prove that it acted fairly in altering the sanction issued by the disciplinary chairperson.
A copy of the judgment in Anglo American Platinum Limited v Beyers and Others can be accessed here:
reviewing disciplinary hearing outcomes
