LAW BITES: Finalisation of Disciplinary Hearings Constitutional Court Decision 7 February 2019
Another recent decision handed down by the Constitutional Court related to the finalisation of disciplinary hearings. According to the Constitutional Court, an unreasonable delay in finalising a disciplinary hearing can result in procedural unfairness.
In this case, the employer took almost five years to finalise the outcome of a disciplinary hearing. A dismissal should be procedurally, as well as substantively, fair. It is trite that the Labour Relations Act espouses speedy resolution of labour disputes.
Accordingly, despite the dismissal being substantively fair, the conclusion reached in this judgment is that the employee’s dismissal was procedurally unfair owing to the extraordinary delay in instituting and concluding the proceedings expeditiously. The matter was remitted to the Labour Court to determine an appropriate remedy. This remedy could result in reinstatement of the employee.
In light of this decision it is important to remember that the test for dismissal is twopronged and must be both substantively and procedurally fair. Accordingly, employers must not forget about procedural fairness as this could risk an adverse finding at the CCMA and/or Labour Court which could result in reinstatement.
