“To err is human; to forgive, divine. Alexander Pope: 1688 – 1744”
“This brings me to remorse. It would in my view be difficult for an employer to reemploy an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.” [At 25]
“In the circumstances of this case I consider it to have been irrational for the commissioner to have found that the employees did not commit the dishonesty within the scope of their core functions, that their long service availed them, or that they were entitled to profit from the fact that their dishonesty might readily have been detected by the employer.
She misunderstood the concept of a core function and the role of long service in mitigation. She gave no thought to the moral opprobrium attaching to employees who knew that their fraud could, by an analysis of the printouts of a device attached to one of the trucks, readily be detected, and nevertheless committed it.” [At 26]
[De Beers Consolidated Mines Ltd v CCMA & others  9 BLLR 995 (LAC), Zondo AJP – Labour Appeal Court of South Africa; excerpt from Judgement quoted in the authoritative publication by Professor John Grogan ‘Dismissal’ Juta (2010) 1st ed at 174].
The rationale for the writing of this article stemmed from a number of sources albeit articles, authoritative publications as well as experience as a labour arbitrator presiding in matters where the employee was dismissed for misconduct.
In the first instance, a newspaper article published in LinkedIn by M Tully entitled “Employing people in SA is a minefield for smaller businesses” May 11, 2016, was found to be of interest.
The author, Tully is referred to in the article ‘as the owner of a medium-sized business in SA.’ He opens with the remark “I WOULD like to offer some insight, as the owner of a medium-sized business, into the financial difficulty employing staff in SA.”
The reader is taken through a process that may be referred to or equated with “A Classical Concerto in Three Movements.”
Allegro – The First Movement: The rigours and soul destroying the process of the pre-employment phase are explained, for example, “copious amounts of time going through CVs and interviewing candidates sent by recruitment agencies that have seldom actually seen the candidates. You employ this person on the basis that he or she has the skills to fulfil the function and you simply need to train them on your product.”
Then follows the employment of the successful candidate [a ‘sales person’ is used as an example]. The time and costs of in-service training of the employee by a mentor [a minimum of 3 months in service training] are stated as the standard period for training.
Andante – The Second Movement: The employee is “sent out into the field bearing your reputation. You start to see this may not work… After three months in the field with little to no success, you begin performance discussions…Keep in mind the time it’s taking you to go through this process…”
“You counsel the employee…to achieve the goal…inform that after another three months that with no improvement you will need to begin disciplinary action based on agreed targets.”
“After the third warning, you hold a disciplinary hearing — a formal event requiring you to pay a presiding officer to hear the matter. One needs to be sure the presiding officer issues the notification to attend the hearing correctly, and that it states all the rights available to the employee.”
“You then hold your mini court case, where you present the evidence you have collected over the past 12 months, and after much deliberation, the employee is dismissed once the verdict is issued.”
Scherzo – The Third Movement: The dismissal is referred to the Commission for Conciliation, Mediation & Arbitration (CCMA) as a dispute, to wit an unfair dismissal.
The author then provides the reader as stated in the article ‘his understanding’ of the statutory dispute resolution processes followed at the CCMA. After perusal of the author’s understanding of dispute resolution then the reader will conclude that the ‘dice is loaded’ so to speak against the employer insofar as dispute resolution and the costs thereof are concerned.
One is left with the impression that regardless of the ‘guilt’ or blameworthiness of the employee the CCMA Commissioner has little if any discretion but to award “damages” or rather compensation to the maximum amount of 12 months’ salary to the employee.
It is alluded to in the article that notwithstanding meticulous compliance with SA labour laws insofar as substance and procedural fairness are concerned, the CCMA Commissioner will award maximum compensation to the employee.
Finite: Costs will be for the employer’s account and so be it. In conclusion, the author makes the observation that “This is truly a disincentive for me to have employed someone.”
The sentiments expressed in the article, especially the formalistic pre-dismissal processes and the author’s experience with SA labour dispute resolution are not isolated or confined to opinions of an insignificant number of SA employers.
However, the purpose of this article is not to address unnecessary formalism in pre-dismissal procedure per se, as it is entitled “THE NEED TO ‘PLEAD’ WHEN ‘GUILT’ IS A GIVEN – ‘WHEN IT IS TIME TO COME CLEAN?’”
See an article recently published on LinkedIn, “The Deformalisation of Disciplinary Proceedings – Demise of the Criminal Justice Model.”
Also, see “The Deformalisation of Disciplinary Proceedings – Demise of the Criminal Justice Model.” – Scheepers J, ILJ Vol 33, July 2012 Juta, 1539 – 1760, wherein the issue of the formalistic nature of SA pre-dismissal processes was ventilated.
Readers are advised to peruse an article that contains an in-depth analysis of international perspectives on SA unfair dismissal law by BPS van Eck & P Smit “International perspectives on South Africa’s unfair dismissal law” XLIII CILSA 2010:
The right not to be unfairly dismissed is well-recognised in South African labour law. Anecdotal evidence suggests that South Africa may be overregulated in this regard. ILO Convention C158 provides standard-setting guidelines in respect of the termination of any worker’s employment. In this contribution, ILO standards are considered and the respective positions in the Netherlands, the United Kingdom, the United States of America and South Africa are compared to ILO Convention C158. The authors seek to establish whether unfair dismissal law in South Africa is out of step with international standards and the position in a selection of foreign jurisdictions.”
Suffice it to record that the learned authors inter alia concluded and submitted that South Africa’s unfair dismissal law (in particular the Code of Good Practice) does not require more in respect of pre-dismissal procedures than the norms established by the ILO and those to be found in the UK.
Van Eck et al furthermore concluded that should South African employers and trade unions agree to more formalistic and court-like procedures in their disciplinary codes (such as the ones prescribed during the era of the Industrial Court) than those required by law, it is something of their own doing. They will have to adhere to such requirements. Such a practice does, however, not have the consequence that South African labour law is more prescriptive than the standards set by the ILO and introduced in countries like the UK. [Emphasis added].
As regards the subject matter of this article is concerned an issue of contention has been the perceived unwillingness by Commissioners of the CCMA and Bargaining Councils to hand down orders as to costs against Applicants in the event of frivolous and vexatious dispute referrals.
The issue has been the subject matter of heated debate and discontent, especially amongst employers.
Section 138 (10) of the South African Labour Relations Act, 66 of 1995 (as amended) (the LRA) provides that “the commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with rules made by the CCMA in terms of section 115 (2A) (j) and have regard to (a) any relevant Code of Good Practice issued by NEDLAC in terms of section 203; and (b) any relevant guideline issued by the Commission.
The Commission has now made rules in terms of section 115(2A) (j) of the LRA. Rule 39 confirms that the basis on which an order for costs should be made is “law and fairness”.
In terms of Rule 39 “Order of Costs in Arbitration” as stipulated in terms of the recent amended Rules of the Commission and more specifically Rule 39(3) and (4) were considered and quoted in full infra:
“(3) A commissioner may make an award of costs in respect of the legal fees of a party that is represented in arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner.
(4) An award of costs for costs in terms of sub-rule (3) must be in the amount of –
(a) in respect of the first day of an arbitration (including any arbitration concluded in a single hearing) – R6 000-00 (VAT inclusive);
(b) in respect of each additional day of an arbitration – R4 000-00 (VAT inclusive).”
If a commissioner awards legal fees he or she has no discretion as far as the amount is concerned. Legal fees are awarded at a flat rate in accordance Rule 39(4):
- R6000 for the first day and R4000 for each additional day of the arbitration hearing.
- When legal fees are awarded, no disbursements can be awarded”. [Emphasis added].
Where the requirement is law and fairness the “general rule” is that cost follows the event. This means that the successful party should be awarded his or her costs, but this is not a hard and fast rule – each case must be decided on its own merits.
The courts made it clear that the general rule is tempered by what is called the “basic rule”.
This means that the courts have the discretion to award costs. This discretion must be exercised judicially, which means not arbitrary, unbiased and not acting capriciously.
The overriding factor is to do justice between the parties – fairness to both parties.
Of importance is that Commissioners must address these factors in the award. It must be clear from the award that the commissioner has applied his or her mind and the commissioner must give reasons why costs are awarded.
A commissioner may also make an award of costs in favour of a party who is represented in arbitration by a person contemplated by rule 25(1)(a)* in respect of reasonable disbursements actually incurred in the conduct of its case in the arbitration.
A commissioner who makes an award in terms of this provision must specify clearly the items and amounts in respect of which costs are ordered.
*i) if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member of that close corporation;
- ii) any office bearer, official or member of that party’s registered trade union or registered employers’ organisation;
iii) if the party is a registered trade union, any office bearer, official or member of that trade union authorised to represent that party; or
- iv) if the party is a registered employers’ organisation, any office-bearer or official of that party or a director or employee of an employer that is a member of that employers’ organisation authorised to represent that party.
Rule 39 c) – d) stipulates the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regard to – :
- c) any with prejudice offers that were made with a view to settling the dispute;
- d) whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner –
- i) by proceeding with or defending the dispute in the arbitration proceedings, or
- ii) in its conduct during the arbitration proceedings;
- e) – h).
Therefore it is submitted that the amended rules clarify any uncertainty as to the grounds upon which a Commissioner should exercise discretion in making an order as to costs.
Furthermore, the importance of due consideration of the merits of a matter, having regard to issues such as the prospects of success, the participation in good faith during the conciliation proceedings as well as the conduct during the arbitration of the dispute in the event of non-resolution at conciliation.
It is envisaged that in exercising discretion when considering an application for an order as to costs Commissioners will also take consideration of the conduct of the parties as from the commencement of the disciplinary proceedings, for example a timeous and bona fide “plea of guilty” by the Applicant/employee at the commencement of the disciplinary proceedings, that is before the decision to dismiss has been taken.
PURPOSE OF THE ARTICLE
The motivation to write this brief article emanated from a publication by Kim Lovegrove & Sav Korica “Disciplinary Hearings and Advocacy” Hybrid Publishers.
Kim Lovegrove is a partner of Lovegrove and Lord Lawyers, an advocate in practitioner and professional misconduct matters. He is the Chairman of the Building Practitioners Board in Victoria, in which capacity amongst other things he presides over disciplinary hearings and chairs disciplinary panels.
Sav Korica is a barrister, a co-opted member of the Building Practitioners Board in Victoria, a part-time lecturer at the Victorian University of Technology and, prior to going into the law, was a teacher. He presides over disciplinary hearings with the BPB and one of his principal tasks is the writing of decisions.
About the Book
What happens if your conduct fails to measure up to the standard of professional conduct expected of members of your profession?
What is the difference between professional misconduct and unsatisfactory professional conduct?
The learned authors address the nuances and intricacies of the law that governs untoward practitioner conduct.
Issues addressed in the publication are:
- the object of disciplinary proceedings
- the standard of proof
- differentiating between professional misconduct and unsatisfactory professional conduct
- handing down disciplinary decisions
- to plea or not to plea [See video insert]
- good advocacy
- natural justice
- sound decision making.
According to Professor Kim Lovegrove of Australian based attorneys firm Lovegrove, Smith & Cotton – Construction, Planning & Property Lawyers, there are tens of thousands of building practitioners registered in Australia with various practitioner oversight bodies.
Unfortunately, disciplinary jurisdictions are getting bogged down in processing misconduct enquiries; such is the volume of practitioner recalcitrance particularly in the residential sector.
One of the reasons that matters get bogged down and the main reason that hearings take too long to conclude is the habit of many respondents who are often abetted by their advocates in trying to contest the incontestable and endeavouring to resile from the indefensible. This depletes the public purse, makes decision makers cynical and does not bode well with respect to the decision makers sentencing disposition.
So if a respondent practitioner has a prima facie case to answer, then if he or she has a molecule of intelligence then fessing up is the only way to go. Decision makers will afford no sympathy when they find against a respondent if it was abundantly clear that there was no defence because it is a waste of their time and a waste of the Tribunal’s time.
In the quasi-criminal arena of practitioner misconduct, the joke “what is the tenth commandment? Don’t admit it” is no joke. If you don’t admit it and mitigate with skill and sincerity, it can be the difference between very serious censure and a more constrained finding or sanction. Decision makers are heartened if they feel that an applicant “gets it,” can change and won’t do it again.
“Obfuscations” on the other hand understandably incur the wrath of the decision makers as they don’t “get it.” This leads to a decision maker harbouring a fear that they are dealing with a recidivist who has no regard for public dictates, a person who doesn’t give a damn that they have harmed a fellow citizen.
So what are the essential ingredients of a good plea?
If the evidence imputes guilt and the decision is made to enter a plea of guilt, then it is very important to plead and make mention of any mitigating factors. Here is a list of ingredients on point from the publication Disciplinary Hearings and Advocacy that Lovegrove co-authored with highly regarded barrister Sav Korica.
- Contrition and remorse
- Cooperation with the prosecutor and the investigatory body
- Intimate knowledge of the facts and the law on point
- The availability of apposite fresh references from referees of good repute
- Knowledge of priors or lack thereof
- If no real harm has been occasioned, submissions verifying as much
- Evidence of financials – earnings need to be revealed, outgoings need to be revealed
- Evidence as to whether there are any dependents and the impact an adverse finding will have on them
- Evidence that can be produced that verify the changes that have been introduced systemically to avoid repeat occurrence
- Evidence of any reparation that has been effected
If the applicant invests time in preparing a plea of mitigation that traverses this mitigation terrain, then it will provide most decision makers with some reassurance that the applicant engaged in one-off conduct, has learnt from the experience and would in all likelihood not become a repeat offender.
As there is High Court authority that an early plea translates into a sentencing discount, the election to plea rather than contest the incontestable is prudent.
FAIRNESS OF SANCTION – FACTORS DETERMINING THE FAIRNESS OF SANCTION OF DISMISSAL
In National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd and others 1996 (4) SA 577 (A); 1996 17 ILJ 455 (A) it was held that the approach must be to find a balance between fairness to both the employee and the employer.
In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC);  12 BLLR 1097 (CC) has to determine whether “a dismissal is fair” or not Commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.
Factors impacting on fairness:
Amongst the factors relevant to the determination of fairness are:
- The general vulnerability of employees to unfair decision making;
- The importance of security of employment;
- The importance of the rule that was breached;
- The reasons for establishing the rule including its reasonableness;
- The harm caused by the employee’s conduct;
- The impact that it had on the trust relationship;
- The effect of setting a precedent;
- The reason why the employer imposed the sanction of dismissal;
- The basis of the employee’s challenge to the dismissal; [pleading of relevance]
- Whether additional training and instruction may result in the employee not repeating the misconduct;
- The employee’s service record;
- The effect of dismissal on the employee;
The generally applicable industrial norms of which commissioners will have knowledge through the institutional knowledge of the CCMA.
These norms can be found inter alia in the pronouncements of the Constitutional Court, the Supreme Court of Appeal, the Labour Appeal Court and the Labour Court as well as awards of other Commissioners. In terms of section 138(6) of the LRA. It also appears from the Codes of Good Practice; CCMA Guidelines: CCMA Guidelines: Misconduct Arbitrations.
DISCIPLINARY SANCTION – DISHONESTY: IMPORTANCE OF SHOWING REMORSE – CASE LAW
First National Bank, a Division of First Rand Bank Ltd v Language & others
 JOL 28156 (LC);
First National Bank, a Division of First Rand Bank Ltd v Language & others
 5 BLLR 478 (LC)
||Timothy v Nampak Corrugated Containers (Pty) Ltd  8 BLLR 830 (LAC)
 The arbitrator further ignored evidence that the employee sought approval for his conduct after the fact when he learnt that discipline was being considered against him. Had this been a genuine effort in recognition of real wrongdoing on his part it may very well have served as a mitigating circumstance when considering the appropriate penalty.
However, his act of reversing the charges was done in a devious manner with no indication that he acknowledged his wrongdoing. He persists with his lack of remorse and it is likely that he will repeat this conduct if given the opportunity in the future.
 The remedy of reinstatement indicates that the arbitrator clearly failed to apply her mind to the facts before her. Where an employee seeks reinstatement but remains unrepentant for his flagrant transgression of workplace rules and dishonesty, Mr Brassey submitted that the arbitrator was required to have applied her mind to this factor. The employee’s attitude throughout the proceedings was one of contempt for the bank’s rules, and he suggested that latitude should have been extended towards him.
He suggested that the fact that he was disciplined was somewhat reprehensible and persists with his denial that he had committed any misconduct. The principle that the lack of remorse for serious misconduct renders progressive discipline pointless was established in Timothy v Nampak Corrugated Containers (Pty) Ltd 2 when the Labour Appeal Court held that the purpose of progressive discipline was to reintegrate the employee into employment where the employment relationship can be restored to that which pertained prior to the misconduct. In the context of his blatant dishonesty and lack of contrition, which destroyed the trust relationship, reinstatement is hardly an appropriate remedy.
 In Sidumo (supra) Navsa J held:
“In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that has been breached. The commissioner must, of course, consider the reason the employer imposed the sanction of dismissal.
There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair.
In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”4
 In relation to the further alternative conclusion reached by the arbitrator, i.e. that the sanction of dismissal was grossly disproportionate, even if he had been found to be guilty of the offence with which he was charged, having reached the conclusions above I am not required to determine this issue save to state that the issue of whether reinstatement is appropriate in the light of mitigating and aggravating factors becomes relevant.
The considerations then of remorse and his lack of contrition (which has been held by the LAC to apply when determining the appropriateness of sanction for misconduct in, inter alia, Toyota South Africa Motors (Pty) Ltd v Radebe & others) 6 would arise in determining whether the arbitrator applied her mind to the totality of facts and circumstances before concluding that reinstatement was appropriate.
If the employee had been found guilty of the misconduct and the arbitrator was required to determine whether the sanction of dismissal was appropriate, his conduct and attitude to the proceedings, to his employer and his colleagues would undoubtedly have become relevant.
In this regard, Mr Brassey made much of the applicant’s vitriolic and intemperate remarks made during the course of the proceedings.
The fact that his outrage was justified in the context of allegations that the outcome of the disciplinary enquiry had been deliberately withheld and that there had been an attempt to falsify documents in order to set him up, as submitted by his counsel, would not entirely justify it. Its impact on the trust relationship would have become material had he been found guilty.
 In my view, therefore, in reaching her main conclusion that the employee was not guilty of misconduct, the arbitrator cannot have said to have failed to comply with the duties and responsibilities required of commissioners as set out in Sidumo. Indeed, as Mr Brassey stated, she was undoubtedly conscientious but the question is whether she misdirected herself and therefore abrogated her responsibilities as a commissioner. For the reasons set out above I am of the view that this has not been established in relation to her primary finding of procedural and substantive unfairness.
The court dismissed the review application.
1 My underlining.
2 (2010) 31 ILJ 1844 (LAC) [also reported at  JOL 25711 (LAC),  8 BLLR 830 (LAC) – Ed].
3 (2006) 27 ILJ 1644 (LC) [also reported at  JOL 17623 (LC),  9 BLLR 833 (LC) – Ed].
4 Sidumo, supra, at paras  – .
5 See in this regard County Fair Foods (Pty) Ltd v CCMA  11 BLLR 1117 (LAC) [also reported at  JOL 5274 (LAC) – Ed].
6  3 BLLR 243 (LAC) [also reported at  JOL 5876 (LAC) – Ed] at para .
In the matter Southern Sun Hotel Interests (Pty) Ltd v CCMA & others  11 BLLR 1128 (LC), Van Niekerk, J found in a matter where inconsistency in disciplinary sanction was one of the issues in contention that, in relation to one of the employees used as a “comparator” at the arbitration, the commissioner had failed to note that the comparison had not been put to the company’s representative and that the alleged inconsistency was not raised during the disciplinary hearing, and to assess the credibility of the respective witnesses.
The employee cited as a comparator had consumed company beverages during a schizophrenic attack, and had also expressed remorse. Of the respondent employees, only three had also raised “medical” explanations for their conduct, and these had justifiably been rejected as spurious.
As to the employee who was given a final warning, the Court noted that senior management had expressed shock at the presiding officer’s decision, had “counselled” him, and had immediately issued a general circular to explain to the staff that the sanction was an “aberration”.
The arbitration award was set aside.
From the case law referred to above it is submitted that the importance of showing ‘genuine’ remorse as well as submitting a plea of ‘guilty’ timeously may lead to a decision of a lesser sanction than that of dismissal due to the possibility of a restoration of the trust relationship.
Of importance is that the plea of guilty should be bona fide, the remorse should not be as a result of being ‘caught in the act.’
The remorse should be presented as an unreserved acknowledgement of wrong doing with an accompanying undertaking that the misconduct will not be repeated.
The employee is nevertheless at risk as eloquently edified in the quotation from De Beers Consolidated Mines Ltd supra in that the presiding chairperson of the disciplinary enquiry in the exercise discretion as to the appropriate sanction may find that notwithstanding the ‘plea of guilty’ the sanction of dismissal is appropriate having regard to the seriousness of the misconduct.
Of importance is that the sanction of dismissal will only be justified and appropriate if the employer can prove that the trust relationship has irretrievably broken down.
The video insert by Lovegrove is of considerable value insofar as it contains information as to the substance and nature of a ‘compelling plea of guilty.’
Doing a Plea of Mitigation
Legal costs are notoriously high and a punitive order as to costs may have dire financial consequences for the unsuccessful litigant.
Therefore, the persistent denial of wrongdoing notwithstanding knowledge of ‘guilt’ is discouraged.
The better option is to ‘throw oneself’, so to speak ‘at the mercy’ of the presiding officer.
Most presiding officers appreciate it when the employee takes him/her into its confidence and dismissal may not be handed down as a sanction.
CCMA Commissioner – Tshwane Region
[Updated: October 30, 2016]
* The views and opinions expressed by the writer hereof are not necessarily that of the Commission for Conciliation, Mediation, and Arbitration and constitute that of the writer in his personal capacity
Copyright reserved by the writer hereof. No part of this article/ guide may be reproduced, without prior written permission of the author.
The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.
The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.