The national lockdown caused by the COVID-19 pandemic has posed a significant number of novel problems for companies across the country. Sailing unchartered technological territories has become the norm as companies turn to virtual means to continue business under lockdown conditions.
With no definite end to the lockdown in the foreseeable future, one of the questions that has arisen out of this unique situation is whether a disciplinary hearing be held virtually? The answer is, yes.
Although conducting a disciplinary hearing and the giving of evidence through video link and other social media mechanisms is a novelty in South Africa, technology is so advanced to a point that direct evidence can be taken from a witness in another country and cross-examination can take place whilst the witness is visible to all. There have been a number of cases, both from Bargaining Councils and the Courts, that have not only acknowledged but supported the value of technology in the conducting of disciplinary enquiries and other disputes.
In the case of MTWU obo Nonyane v Star Express CC (Case no: GPRFBC25323), an arbitrator of the National Bargaining Council of the Road Freight Industry was called to make a ruling on the fairness of a disciplinary hearing that was conducted via Skype. The Arbitrator ruled, after having considered a minute of the hearing that was presented to him, as follows:-
“The minute does not deal with the issue of Skype at all, but both the applicant and Tsoa [the applicant’s witness in the enquiry] raised it as an issue. I would however find that Skype would be acceptable for an inquiry of this nature as it is a video call.”
In Smitters v Campbell Scientific Africa and 2 others (case no: C 751/2013), the Supreme Court of Appeal dealt with a matter wherein the complainant in a disciplinary enquiry gave evidence via Skype during the course of the subsequent arbitration. In this regard, the court stated as follows:
“It must be borne in mind that these are arbitration proceedings – designed to be informal and conducted with the minimum of legal formalities. Markides was in Australia. It would have been unacceptably costly and time-consuming for her to be flown back to South Africa to give evidence. The arbitrator allowed her evidence in the manner envisaged by section 138 (1) of the LRA. Section 138 (1) of the LRA provides that the arbitration may be conducted in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly. The court found that the arbitrator had conducted the arbitration in a manner that he considered appropriate in order to determine the dispute fairly and quickly…. It was not an ideal situation, but it was one that is envisaged by the LRA. It did not prevent Simmers from having a fair hearing. It does not constitute a reviewable irregularity.”
Holding a disciplinary hearing through video conferencing means, however, does not mean all the substantive and procedural requirements are thrown out of the virtual window. In terms of the Code of Good Practice: Dismissal contained in the Labour Relations Act, a fair procedure requires an employer to notify the employee of the allegations against him or her using a form and language that the employee can reasonably understand. The employee should be allowed, with the assistance of a trade union representative or fellow employee as the case may be, the opportunity to state a case in response to the allegations and the employee should be entitled to a reasonable time to prepare the response. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
There is no legal provision which prohibits an employer from conducting a disciplinary enquiry via Skype or by any other video conference means, provided that the employer complies with all the obligations outlined in the Code of Good Practice: Dismissal and if it was convenient, fair, just and equitable in the circumstances. Any tribunal/decision-maker would agree that an employer would be justified, if not obligated, to conduct an enquiry in this manner in light of the risks involved with the spread of COVID-19. This pandemic demands that employers take deliberate precautionary steps to create a safe and healthy working environment and it is arguably necessary therefore that employers conduct disciplinary hearings by video conference.
In these circumstances it would be appropriate to inform the employee concerned, in the notification to attend a disciplinary enquiry, that the hearing will be held via Skype (or via any video conferencing means you choose) with the intention of protecting all the parties involved from any possible exposure to COVID-19.
Conducting a disciplinary hearing virtually will not only save time and costs for both the employer and employee but with the lock down conditions firmly in place and video conferencing easily available, conducting your disciplinary hearing virtually makes absolute sense.
Contact GA&A on firstname.lastname@example.org for more information or to book us to chair a virtual disciplinary hearing.