"All
disciplinary action shall be taken and finalized as soon as possible
after the misconduct has been brought to the attention of
management, in any case not later than thirty days. However the
thirty day period refers to matters dealt with up to the level of
Human Resources Manager. Matters such as those involving police
investigations and/or litigation or reasonable internal
investigations may take longer periods as circumstances may demand."
3.
On 14th
June
2007 the Applicant was served with notice of a disciplinary hearing.
The disciplinary charges in the notice allege that the Applicant
falsified bank records on or during 21st
May
2007 and 22nd
May
2007 to conceal a difference of E1000-00, and he failed to declare a
cash shortage of E1000-00 which was discovered on 23rd
May
2007.
4.
According to a letter from the Respondent's Commercial Unit Manager
filed of record by the Applicant, the alleged misconduct was brought
to the attention of management on 23rd
May
2007. In terms of Article 1.10 of the Disciplinary Code and
Procedures, any disciplinary action against the Applicant in respect
of the alleged misconduct had to be taken and finalized not later
than thirty days after the 23rd
May
2007.
5.
The
disciplinary hearing was duly held, and on 22nd
June
2007 the Applicant was found guilty of the disciplinary charges and
summarily dismissed.
6.
The 22nd
June
2007 is the thirtieth day after the 23rd
May
2007, if one includes Saturdays and Sundays.
7.
Applicant appealed against his summary dismissal by letter dated 2nd
July
2007. The hearing of the appeal was delayed through no fault of the
Applicant. The hearing was eventually held on the 14th
September
2007. When the matter was argued in court on the 11th
October
2007, the appeal chairman had still not delivered his findings on
the appeal.
8.
It is a matter for concern that the Applicant's appeal has not been
determined after the elapse of more than three months. The Applicant
has not however come to court seeking an order compelling
determination of the appeal. On the contrary, he has applied for an
order interdicting and restraining the Respondents from conducting
and/or continuing with the disciplinary proceedings, and directing
the Respondent to reinstate the Applicant to his employment.
9.
The Applicant's argument is simply that the failure of the
Respondent to conclude the disciplinary process, including the
appeal, within 30 days after the 23rd
May
2007, constitutes a violation of article 1.10 of its disciplinary
code and procedure. Furthermore, article 5.1.3 of the code and
procedure states that "any
disciplinary action taken outside the 30 days in terms of article
1.10 shall be null and void."
10.
The Respondent in reply has argued as a legal point in limine that,
on a proper interpretation of article 1.10, it is disciplinary
action instituted by the Respondent against its employee which must
be taken and finalized within thirty days. An appeal against a
disciplinary sanction instituted by an employee is not disciplinary
action as contemplated by article 1.10.
11.
"Disciplinary
action" in
its ordinary grammatical meaning refers to action taken to enforce
or promote discipline. Article 1.4 of the Respondent's Disciplinary
Code and Procedure provides explicitly that "Discipline
shall mean any action initiated by management in response to
unacceptable employee performance or behaviour."
12.
The term disciplinary action is generally used in the Code and
Procedure to refer to the process initiated by the Respondent
whereby an employee is sanctioned for a disciplinary offence.
Article 4 refers to "Appeals against Disciplinary Action",
and states that "an
employee who wishes to appeal against disciplinary action imposed on
him .... shall furnish a
notice
of appeal..."
Articles
2.3.5, 2.3.5 and 2.4.3 all state:
"Should
the employee.... wish to challenge the fairness of the disciplinary
action taken, he should lodge an appeal in accordance with the
Appeal Procedure."
The
language used makes it clear that an appeal is not disciplinary
action, but rather a procedure initiated by an employee who wishes
to challenge disciplinary action taken against him.
13.
Bearing in mind the need for investigation of alleged misconduct,
reasonable notice of a disciplinary hearing, conduct of the hearing,
making a decision, submission of mitigation and imposing an
appropriate sanction, thirty days is a reasonable and adequate
maximum period for disciplinary action to be taken and finalized. If
the appeal process had also to be finalized during this period, it
would occasion undue stress on the disciplinary procedure which
would not be in the interests of a fair process. It would also give
rise to uncertainty if a disciplinary sanction, fairly and timeously
imposed, might be rendered null and void because the appeal could
not be promptly finalized. In our view it is most improbable that
the parties to the collective agreement intended articles 1.10 and
5.1.3 to have this effect.
14.
It is the view of the court that the Respondent duly complied with
the time limit prescribed by article 1.10 when it completed the
disciplinary hearing and terminated the Applicant's services within
thirty days.
15.
The Respondent asks for an order that the Applicant pays the costs
of the application. Although the application is without merit, we do
not consider that the application is frivolous and vexatious. On the
contrary we believe that the Applicant has been driven to court by
the Respondent's tardy handling of his appeal. It is most unfair for
an employee to be unnecessarily kept in limbo regarding his
employment status. We decline to award costs to the Respondent in
the circumstances.
16.
The application is dismissed. There is no order as to costs.
PETER
R. DUNSEITH
PRESIDENT OF THE
INDUSTRIAL COURT
