There is no statutory obligation for a company to provide an appeal process to be followed at company level. Schedule 8 of the Labour Relations Act, the Code of Good Practice: Dismissal is silent on the matter of appeals and many consider the alternative dispute resolution processes offered by the CCMA or bargaining councils to be sufficient for dealing with any employee who feels that his or her dismissal (or any disciplinary action instituted, for that matter) is, for whatever reason, unfair.
However, many companies choose to provide an appeal process internally that may be used by any employee who is subjected to disciplinary action. Should you choose to implement an appeal procedure at your company, you need to ensure that it is fair. Offering an appeal procedure has many benefits to all parties and is well worth considering.
The purpose of an appeal is for any accused who has been subjected to disciplinary action to have their version considered again. The advantage to the employee is obvious, but there are distinct advantages for the employer too, chief amongst which is that by allowing for disciplinary action to be appealed, there is a further check and balance that is built into the company’s internal processes that will ensure fairness applied in each case.
Since there is no statutory obligation to provide an appeal procedure, there is no specific process that need be followed, but there are certainly important points to be considered when ensuring that any process is fair. Furthermore, the more efficient the process, the fairer and better it will be for all concerned. Our suggested 3-step approach and process for lodging an appeal:
1. The appeal should be lodged within the prescribed time period, by the employee (known in this process as the appellant).
It is advisable that employees be given a specific time in which to lodge an appeal. It is problematic to leave this period open ended, as this may lead to employees wishing to appeal against decisions taken weeks, if not months, prior to the appeal. This would lead to unfairness on the employer. Usually, the time period prescribed in a company’s appeal procedure would be 3 to 5 days from the date of the disciplinary action being issued. Since disciplinary action taken should always be in writing, this date of the issuing of the warning or the dismissal should be captured on the documentation issued to the employee at the time. This way, there can be n confusion as to whether an appeal has been lodged within the prescribed period or not.
2. The appeal should be lodged by the completion and submission of the prescribed appeal form.
The appeal procedure should contain a form which guides the appellant in lodging the appeal. The form should make provision for all of the information which is required before an appeal is scheduled.
3. The reason for the appeal should be stated on the form.
The form (and the appeal procedure) should require the appellant to state the reasons for the appeal. It is insufficient for an appellant to simply appeal against a decision without stating the reasons why. The appellant should stipulate on the form the reasons for the appeal, whether he or she is appealing the “guilty” verdict or the sanction imposed. The appellant should also detail on the form if he or she wishes to bring any new evidence to the appeal.
Once the form has been properly completed and submitted, the employer may then apply its mind as to whether the appeal hearing will be convened or not. However, should the appeal be denied, sound reasoning must be given as to why this is the case. Bear in mind that many employees are not experts in these matters and may require assistance in completing the form or explaining why it is that they wish to appeal. When in doubt, it is always better to schedule an appeal and to allow an experienced chairperson to deal with the facts in the hearing.
If the employer is satisfied that there are sufficient grounds for the appeal, the appeal hearing should be scheduled before an impartial chairperson. Ideally, this chairperson should be totally independent, but at the very least must be as senior or more senior than the original disciplinary enquiry chairperson or the manager/supervisor that issued the warning that is being appealed. The reason for this is because a chairperson who is junior to the manager/supervisor responsible for implementing the disciplinary action is unlikely to overrule a superior, even if they do not agree with the action that has been taken.
Finally, the appeal should be scheduled within a reasonable time after the appeal form has been submitted. The disciplinary action taken remains in effect until the appeal chairperson overturn it. Unreasonably long delays in scheduling the appeal hearing will lead to unfairness on the appellant. Please also remember that a failure to lodge an internal appeal does not preclude a person from approaching the CCMA or bargaining council for relief in the case of any perceived unfair treatment.