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11 August 2020

Can employers conduct disciplinary proceedings virtually?

Enforcing and maintaining workplace discipline remotely

A quick glimpse into world news on the Covid-19 pandemic reveals encouraging support by various world governments for scientific efforts to find a vaccine.  And, as the momentum picks up on scientific efforts, some entrepreneurs have swiftly adopted innovative ways of keeping their operations afloat.

The government-imposed lockdown restrictions since March 2020 have also seen a surge in the number of companies adopting remote working. Most employees have welcomed remote working because of its various advantages, such as reduced fuel costs and reduced traffic headaches, not to mention those precious extra seconds in bed every day. However, some employers have been struggling with remotely managing employees – an unfamiliar territory for most employers here in South Africa.  

One question that has been posed in relation to remotely managing employees is whether employers can conduct disciplinary proceedings virtually. The answer to this question is in the affirmative.

Conducting disciplinary hearings where the giving of evidence is through video link and other social media platforms is relatively new in South Africa. However, the good news is that technology has become very advanced. This enables participants to present evidence from another country or province and cross-examination can take place whilst the witness is visible and audible to all.

Labour Court and Bargaining Councils’ support for virtual proceedings

There have been a number of cases, both from Bargaining Councils and the Labour Court dealing with the presentation of evidence or conducting proceedings via social media platforms. All these cases have not only accepted but supported the value of technology in conducting employment law processes or enquiries.

In our previous blog discussing whether an employer may hold virtual retrenchment proceedings, there is reference to the Labour Court’s judgment in Food and Allied Workers Union (FAWU) v South African 
Breweries (Pty) Ltd (SAB) and another [2020] JOL 47365 (LC). In this case, the Labour Court endorsed the conducting of employment relations proceedings through virtual social media and related platforms.

More specific to the issue of virtual disciplinary proceedings however, the pertinent ruling is found in MTWU obo Nonyane v Star Express CC (Case no: GPRFBC25323). In this matter, the arbitrator ruled that the holding of a disciplinary hearing through Skype was procedurally fair.

Similar to the above, the Labour Court in Simmers v Campbell Scientific Africa (Pty) Ltd and others [2014] 8 BLLR 815 (LC) also endorsed the use of alternative methods of presenting evidence. In Simmers’ case, the complainant presented her evidence via a telephone call. This was despite the fact that the parties had initially indicated the manner of leading evidence by the complainant as through Skype.

Are virtual disciplinary proceedings fair across the board?

Regardless of the above, specific circumstances of each case must be considered in determining what is convenient, fair, and equitable. Therefore, disciplinary proceedings via social media platforms will not always be fair and equitable in all circumstances. The exigencies of each case will determine the fairness and equitability of the process in each case.

In Simmers’ case for example, it became convenient to hear evidence in the arbitration by telephone, because the Skype connection could not be established. Further, the arbitrator also acted within the powers granted to him in terms of the Labour Relations Act 66 of 1995 (“LRA”). These are the powers granted to an arbitrator to conduct arbitration proceedings in a manner that he/she may consider appropriate in order to determine the dispute fairly and quickly.[1]

Preserving the essence of disciplinary proceedings virtually

Considering the above, it becomes clear that in present times where Covid-19 has transformed the way we work, it has by necessity also transformed the manner in which disciplinary proceedings are conducted.

We must, however, be clear as to the exact nature of this transformation that we are discussing. The essence of disciplinary proceedings is to enforce and maintain discipline in the workplace. It is quite clear that the above is very much achievable through conducting disciplinary hearings via social media and related platforms.

Conducting disciplinary proceedings in such a manner is relatively easy, thanks to leaps in technological advancement, and the existence of the current pandemic presents a vital need to maintain high levels of health and safety standards and practices. Arguably, the foregoing presents a strong case for the acceptance of the use of social media and other related platforms to conduct disciplinary proceedings. 

Maintaining compliance with the dictates of fairness in virtual proceedings

Irrespective of the above, it remains extremely important for employers to ensure compliance with all the requirements for conducting substantively and procedurally fair disciplinary processes. These include, but are not limited to:

  • ensuring that the rule or standard of conduct an employee is alleged to have contravened is known to him/her or he/she is reasonably expected to know the rule;
  • ensuring that the rule is a valid or reasonable rule or standard;
  • consistent application of the rule or standard; and
  • imposing an appropriate sanction which is proportionate to the nature of the rule or standard breached or the seriousness of the breach.

In light of the risks involved with the spread of COVID-19, there is no question that employers are justified, and indeed obligated, to conduct disciplinary enquiries remotely. The Covid-19 pandemic demands that employers take deliberate precautionary steps to create a safe and healthy working environment. It is therefore arguably necessary that employers conduct disciplinary hearings by video conference where doing so is a safer option than conducting the disciplinary hearing in person.

Notwithstanding the above, employers are required to clearly set out the details of a disciplinary hearing and the charges laid against the employee. In addition to this, where an employer intends on holding a virtual disciplinary hearing, he/she must ensure that:

  • the employee is duly informed in time that the disciplinary hearing will be held via Skype or other social media platforms;
  • the employer must ensure that the employee has an adequate and compatible laptop or tablet to join and stay connected for the entire duration of the hearing; and
  • the employee has sufficient data bundles or Wi-Fi/fibre connectivity to join and stay connected for the entire duration of the hearing.

It goes without saying that if an employee is unable to properly hear any questions during the hearing and thus fails to correctly answer to the questions in cross examination or any part of the hearing, he or she may be prejudiced.

No doubt, conducting a disciplinary hearing virtually may save time and costs for both the employer and employee and may continue even after the pandemic is over (hopefully, soon). However, whilst the Covid-19 pandemic remains widespread, conducting disciplinary hearings via video conferencing makes absolute sense. 

Sudden Mutsengi – 11 August 2020

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[1] Section 138 (1).