Disciplinary Action

Is it ever okay to dispense with a disciplinary hearing?

As most employers should know by now, dismissing an employee entails a two-pronged approach:

  • Substantive fairness: the reason for the dismissal needs to be fair and justified; and
  • Procedural fairness: the employer must hold a disciplinary hearing before dismissing an employee.

But what if the employee acts in such an appalling, inexcusable, unforgivable and utterly despicable manner that even an instantaneous dismissal seems too light a sentence? Is an immediate and unequivocal “You’re fired!” – without the benefit of a hearing – ever justified?

This question was answered in a recent court case*. The employee was a gynaecologist who negligently performed a caesarian section on a woman which, heart-breakingly, resulted in the baby’s death. Following this tragedy, he was asked to provide a full written report on what transpired during the procedure, within 24 hours.  The day after the unfortunate procedure, the employee was summarily dismissed for insubordination, insolence and gross negligence. Notably, there was no disciplinary hearing and he had not yet submitted his written report at the time of his dismissal.

Not surprisingly, the employee scuttled off to the Commission for Conciliation, Mediation and Arbitration before you could even say CCMA.

The CCMA agreed with the employee: the dismissal was indeed unfair. However, given how serious the employee’s misconduct was, compounded by his patent lack of remorse, the CCMA rejected his request for compensation. Dissatisfied with his empty victory, the employee appealed the decision. The Labour Court added insult to the employee’s injury by agreeing with the CCMA. And so it was that the Labour Appeal Court was tasked with considering whether the employee was entitled to compensation for his procedurally unfair dismissal, notwithstanding the severity of his misconduct.

The Labour Appeal Court agreed that the employee’s misconduct was indeed so patently inexcusable that dismissal was the only logical recourse. Notwithstanding, this doesn’t permit an employer to forgo the disciplinary hearing. Doing away with the hearing materially detracts from the employee’s rights, including his right to state his side of the argument. The Court, therefore, decided to award the employee compensation equating to three months’ salary – thereby compensating him for the procedural unfairness of his dismissal.

The message for employers is clear: regardless how unforgivable the employee’s conduct may be, it is never, ever okay to dispense with the disciplinary hearing. So make sure that you have disciplinary policies in place, and that you have documented your disciplinary hearing procedures. And if you want to avoid paying your employee for your impulsive actions, quash that urge to instantly issue the employee with their marching orders.

*South African Medical Association obo Pietz v Gauteng Department of Health

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.