Don’t Forget The Basics
It seems that when it comes to disciplinary hearings, some employers are still too inclined to pay attention to the finer detail, and in the process they overlook the basics. The more detail you have in your procedures, the greater the chances that the devil is going to stick his fork where the sun never shines!!
In GIWUSA & another v VM Construction  9 BLLR 99 (IC) the employer failed to observe some of the basic requirements of a disciplinary hearing. Firstly, he failed to give the employee proper notification of the disciplinary enquiry, the employee was not properly apprised of the detail of the charges, and he was not informed of his right to representation. In this matter, a driver collided with another vehicle on the employer’s premises.
The driver was taken to a police station by the site manager, where request was made that an alcohol test be administered. This seems to imply that the employer did not have his own facilities on his premises for conducting alcohol tests on his employees. The police were unable to administer the test and the employer convened a disciplinary enquiry on the following day. At the disciplinary enquiry the employee was found guilty and dismissed for drinking and driving, endangering the lives of others, and damaging the employer’s vehicle.
The employee was only advised of the disciplinary enquiry on the day it was held, he was unaware that he could be dismissed for being under the influence of alcohol, and he was only told of the charges at the disciplinary enquiry. He was also not informed of his right to be represented or of his right of appeal.
Although the court accepted that the employee was to some extent intoxicated at the time of the accident, for a dismissal to be substantively fair the reason for the dismissal would have to be both valid and fair – valid as to the facts, and fair as to both the gravity of the misconduct and the sanction imposed. Other factors such as the employee’s previous disciplinary record must be taken into account, as well as whether or not the employee was aware that he could be dismissed for alcohol abuse.
As we have mentioned a number of times in other newsletters, in determining whether dismissal is the most appropriate sanction, the test is whether the conduct of the employee has damaged the employment relationship to such an extent that continued employment would be intolerable for the employer.
In addition, a substantiated finding would have to be made regarding the element of trust in the employment relationship. An interesting fact in this case is that the Court found that the prevention of alcohol abuse at work was a management responsibility, and it was management who should ensure that employees were not able to commence work if they were drunk or had consumed alcohol prior to commencing work.
This implies that every employer should be properly equipped to carry out alcohol consumption tests on his premises, in accordance with a properly documented procedure, which has been communicated to all employees and is understood by all employees. The court also found that even though a disciplinary rule might provide for the dismissal of an employee for alcohol abuse on duty, the employer must still show that it was reasonable to dismiss in the circumstances of that particular case, and the penalty of dismissal should not be rigidly applied.
It goes without saying – and every employer has a duty to make himself aware of the procedures required prior to dismissal – that no employee can be dismissed unless the dismissal is preceded by a fair procedure.
A fair procedure generally includes a number of rights that the employee is entitled to – including the right to be given notice of the charges in sufficient detail to enable him to prepare a defence, affording the employee sufficient time in which to prepare a defence, informing him of his right to representation and his right to call witnesses to testify on his behalf, and his right to cross-examine witnesses called by management.
The court ordered reinstatement of the employee.