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In the recent decision of Anglo American Platinum Ltd v Beyers & Others the Labour Appeal Court (“LAC”) examined the circumstances under which an employer is permitted to interfere with a disciplinary sanction imposed by a chairperson, in circumstances where the disciplinary code and procedure makes no provision for such interference.

The brief facts were that disciplinary action was instituted against Mr Beyers for an alleged failure to comply with the machine lockout procedure.  Mr Beyers pleaded guilty to the charge and the Company representative presented a written submission which stated that there had been no breach in the employment relationship.  The chairperson imposed a final written warning and required Mr Beyers to undergo retraining on the machine lockout procedure.

The National Union of Mineworkers (“NUM”) lodged a complaint regarding the final written warning which was imposed on Mr Beyers on the basis that its members had been found guilty of the same offence in the past and were dismissed.

Mr Beyers was suspended pending a review of the chairperson’s decision. A review panel was appointed, and a hearing was held.  The review panel recommended dismissal as an appropriate sanction and Mr Beyers was dismissed.

Mr Beyers referred an alleged unfair dismissal dispute to the CCMA. The CCMA arbitrator held that the employer was justified in reviewing and changing the sanction and that Mr Beyer’s dismissal was fair.

The CCMA’s award was set aside on review as the Labour Court found that the employer had not established that there were exceptional circumstances to review and change the disciplinary sanction.  The Labour Court held that Mr Beyer’s dismissal was substantively unfair and reinstated him.

The LAC held that the concept of fairness applies to both the employer and the employee and that:

“[31]     …the threshold of fairness at all relevant times is to be informed by all the established circumstances of the relevant case relied upon by the employer to interfere with the disciplinary hearing sanction. In particular, fairness is informed by established exceptional circumstances”.

At all relevant times, the employer was aware of and accepted the final written warning and acted thereon by retraining Mr Beyers. The employer had no objection to the sanction until NUM raised its objection. To the extent that the employer relied on NUM’s allegations of inconsistency, it had to place this evidence before the arbitrator, which was not done.

The arbitrator failed to determine whether fairness between the parties, informed by exceptional circumstances, justified the review of the sanction. The LAC upheld the Labour Court’s finding that Mr Beyer’s dismissal was substantively unfair.

In conclusion, should an employer wish to change a disciplinary sanction, it must establish that it would be fair to do so based on exceptional circumstances. This is a stringent test which is not to be taken lightly.

For more information please contact Melanie Hart at melanie@bv-inc.co.za.