The Constitutional Court has held in multiple cases that disciplinary hearings for employees must be held within a reasonable time of the alleged offence. In National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town & Others (2003) (3) SA 1 (CC), the Court held that “by their nature, labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly.” The Labour Court in Mapyane v South African Police Service and Others (JR 1948/10) ZALCJHB (24 November 2023) found that the delay by the South African Police Service in instituting a disciplinary hearing, in contravention of the relevant disciplinary regulations, tainted the procedural fairness of the employee’s dismissal.

On the other hand, it is well established in law that a breakdown of the trust relationship between an employer and an employee can render a continued working relationship intolerable, thus making a dismissal fair. In the recent case of South African Breweries (Pty) Ltd v CCMA & Others (JR 1584/21) [2024] ZALCJHB 383 (4 October 2024), the Labour Court dealt with the question of whether employers can still argue that the trust relationship is broken when there was a long delay in instituting disciplinary proceedings. Specifically, when the employee continued working between the period the misconduct took place and the disciplinary hearing.

In this case, the employee was employed as an Accounts Manager in 2015, and he was provided with a company vehicle to carry out his duties. On the 16th of June 2017, the employee was involved in an accident which resulted in the company vehicle being written off. During an investigation by the employer, the employee provided a statement that he had only consumed one alcoholic beverage before the accident. The employer believed the employee, and their investigation concluded that there was no prima facie evidence of misconduct. The employee could not have exceeded the legal limit, having consumed only one beverage, and no disciplinary action was subsequently taken.

However, in March 2019, the employer received a report from the SAPS indicating that the employee’s blood alcohol level had been 0.23 ml/100 ml at the time of the accident, thus exceeding the legal limit. The employee was then subjected to a disciplinary hearing and found guilty of misconduct, leading to his dismissal.

The employee subsequently referred an unfair dismissal dispute to the CCMA. Although the Commissioner found the employee guilty of the misconduct, the dismissal was found to be an inappropriate sanction. The Commissioner’s justification was that the employer was aware of the elements of the misconduct, except the employee’s alcohol level at the time of concluding the investigation. The employer was aware that the employee had consumed alcohol before the accident happened. Yet, the employer gave the employee another vehicle and allowed him to continue working for about twenty-two (22) months after the accident. Therefore, it could not be said that the continued employment relationship was intolerable. The CCMA awarded reinstatement without back pay as the employee was not innocent in this dispute. 

The employer challenged the award and filed a review application at the Labour Court. The Court found that the Commissioner failed to consider that the employee had been dishonest, and the result thereof earned the employee a further twenty-two (22) months of employment and an award in his favour. The Commissioner, therefore, unwittingly rewarded the employee for his dishonesty. The Court further stated that the employee showed a lack of remorse and integrity in his initial explanation to the employer about the accident. The employer relied on the bona fide nature of his explanation when it closed the investigation in 2017. Therefore, how can the employer be expected to trust the employee to be honest and open in his dealings with the employer in the future? The Court declared the employee’s dismissal fair and the sanction appropriate, and the award of the CCMA was set aside.

It can be concluded that there is room for employers to discipline employees even after a long delay, provided that the employer can show justifiable reasons for the delay. In this case, the employer had no evidence to cast doubt on the employee’s account of events until the SAPS report was furnished to them, albeit much later. Furthermore, a delay in instituting disciplinary proceedings will not prevent the breakdown of the trust relationship, especially in serious circumstances that involve dishonesty. Nevertheless, the above case does not provide “a one size fits all” approach. Therefore, employers are still encouraged to institute and finalise disciplinary proceedings promptly to avoid any risks of inadvertently “mending” the trust relationship.

Written by Buhle Masuku, Dispute Resolution Official (CEO SA)