Are You Still Waiting? Impacts of Delays in Disciplinary Proceedings

Procedural Fairness and Delays in Labour Disputes

Procedural fairness in disciplinary hearings is central to South African labour law. It ensures that employees are afforded a fair opportunity to present their case, are duly informed of the charges against them, and that the process is transparent, unbiased, and legally compliant. This principle underpins fair labour practices and safeguards the constitutional right to fairness.

The Labour Relations Act (“LRA”)¹ provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure. Section 188 of the LRA requires that the employer prove that a dismissal satisfies both the substantive and procedural fairness tests. The Code of Good Practice: Dismissal further stipulates that a failure on the part of the employer to comply with these requirements may render the dismissal unfair.

By their very nature, labour disputes must be resolved expeditiously and brought to a final conclusion so that the parties can organise their affairs accordingly. Additionally, it is in the public interest that they are resolved promptly.² In Cassimjee v Minister of Finance,³ the court held that an unreasonable delay in prosecuting or finalising a case undermines the credibility of the outcome and may even constitute an abuse of process.

Adherence to prescribed timeframes in the context of labour disputes is essential to achieving their timely resolution. Uncertainty, high costs, inefficiency, and ineffectiveness marked the dispute resolution framework under the old Labour Relations Act. In contrast, the new LRA introduced an alternative approach to the adjudication of labour disputes, one that aimed to ensure their expeditious resolution. Any delay in resolving such disputes undermines the primary object of the LRA. This is detrimental not only to workers who may be left without a source of income pending the resolution of the dispute, but also, ultimately, to employers who may be compelled to reinstate workers after many years.⁴

Do Delays Render Disciplinary Proceedings Procedurally Unfair?

Although it is well established that discipline must be applied promptly, fairly, consistently and progressively (as emphasised by the courts on numerous occasions), it is worth noting that a delay does not automatically render disciplinary proceedings unfair.

Cases such as Mohlala v South African Post Office⁵ have held that, depending on the circumstances, lengthy delays in finalising disciplinary proceedings may render the entire process unfair, even if, substantially, the employer has a solid case. However, a delay per se does not automatically constitute unfairness. As Sachs J observed in Bothma v Els,⁶ albeit in the context of a delay in bringing a private prosecution:

“[T]he delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial if it were to commence.”

In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape,⁷ the court held that the acceptability of a delay in finalising disciplinary proceedings must be determined on a case-by-case basis. No hard and fast rules can be applied; consequently, whether a delay negatively impacts the fairness of disciplinary proceedings will depend on the facts of each case.

In Moroenyane v Station Commander of the South African Police Services, Vanderbijlpark,⁸ the Labour Court considered factors initially propounded by the Constitutional Court in Sanderson v Attorney-General, Eastern Cape⁹ in the context of assessing delays in criminal prosecutions, and applied these factors to determine what constitutes an unfair delay in disciplinary proceedings. The court held that:

(a) The delay must be unreasonable. In this context, the length of the delay is significant; the longer the delay, the more likely it is to be deemed unreasonable.

(b) The explanation for the delay must be considered. The employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

(c) It is necessary to consider whether the employee has taken steps during the process to assert their right to a speedy resolution. In other words, the employee’s failure to act may be a factor.

(d) It must be determined whether the delay has caused material prejudice to the employee. This includes assessing the impact of the delay on the employee’s ability to present a proper case.

(e) The nature of the alleged offence must also be taken into account. While the offence may be such that there is a particular imperative to have it decided on its merits, this does not imply that a very serious offence (such as a dishonesty offence) must be dealt with regardless of delay. Rather, the nature of the offence might itself justify a longer period for further investigation or for collating and preparing proper evidence, thereby rendering a delay understandable.

(f) All the above considerations must be applied holistically rather than individually.

It is worth noting that in Stokwe the court found that the Department of Education had provided no explanation for the delays, and as a result, Ms Stokwe’s dismissal was deemed procedurally unfair. As a measure of disapproval of the Department’s conduct, the court made an adverse costs order against it and remitted the matter back to the Labour Court to determine the appropriate remedy as a matter of priority.

Waiver of the Right to Discipline an Employee

An employer has the right to discipline employees for alleged misconduct.¹⁰ However, delays in initiating or completing the disciplinary process may lead to a waiver of this right, or prevent the continuation of proceedings. A waiver is defined as the voluntary abandonment of a right.¹¹

The employee asserting a waiver bears the burden of proof and must show the employer was aware of its waiver.¹² In Van Eyk v Minister of Correctional Services,¹³ the court ruled that a delay of nearly two years in charging an employee, despite a three and a half month limit in the disciplinary code, constituted a waiver by the employer.

In Jonker v Okhahlamba Municipality,¹⁴ the court held that while the employee’s contract outlined time limits for discipline, failure to follow them did not automatically waive the right to discipline. Similarly, in Department of Public Works, Roads and Transport v Motshoso,¹⁵ the court found that an unexplained four year delay in the appeal process could imply a waiver, as the delay was deemed inexcusable.

Written by Theo Tembo.