THE ILLUSION OF OPTIONAL COMPLIANCE WITH POLICIES
The Labour Relations Act (LRA) Schedule 8, Code of Good Practice on Dismissals, outlines procedural standards for termination due to misconduct, incapacity, or operational requirements. Large corporations often impose stricter internal policies. While companies can update their policies, a key question remains: when can they ignore their own rules? A recent case saw corporate attorneys argue that the Code of Good Practice and Labour Court precedent granted them unlimited discretion to disregard their published Disciplinary Code when it suited their needs. However, this interpretation contradicts governance principles and basic fairness.
THE BINDING NATURE OF COMPANY POLICIES ON ALL EMPLOYEES
Labor courts acknowledge that company policies do not automatically form conditions of employment. However, most employment contracts require employees to adhere to company policies, which often specify disciplinary consequences for non-compliance. What is frequently overlooked is that management and executive directors—who are also employees—are equally bound by these policies. Failure to comply constitutes misconduct.
Consider this scenario: A company’s Disciplinary Code, aligning with the Code of Good Practice, explicitly allows representation by a shop steward or fellow employee but excludes legal representation. This restriction, endorsed by the CCMA’s Rule 25, ensures fairness and prevents undue legal complexity in internal proceedings.While appointing a legally qualified external chairperson may sometimes be appropriate, this does not justify disregarding company policy. Case law allows employees to argue for legal representation before a disciplinary chairperson, but it does not grant an automatic right to such representation.
Consider this scenario: A company’s Disciplinary Code, aligning with the Code of Good Practice, explicitly allows representation by a shop steward or fellow employee but excludes legal representation. This restriction, endorsed by the CCMA’s Rule 25, ensures fairness and prevents undue legal complexity in internal proceedings.While appointing a legally qualified external chairperson may sometimes be appropriate, this does not justify disregarding company policy. Case law allows employees to argue for legal representation before a disciplinary chairperson, but it does not grant an automatic right to such representation.
THE DOUBLE STANDARD IN LEGAL REPRESENTATION
If company policy explicitly excludes legal representation, it cannot be fair or legally justifiable for management to unilaterally appoint external counsel to argue their case. Doing so creates an imbalance in what is supposed to be an internal fact-finding process. Even if management subsequently allows the employee to have legal representation, this does not rectify the initial breach. Consider these potential consequences:
- Employees may be forced to engage in a legal battle against experienced attorneys without adequate support.
- Employees may be financially burdened by the cost of securing legal assistance for an internal hearing.
- Employees may face an unfair disadvantage simply due to financial constraints.
The legislature restricted legal representation in misconduct and incapacity hearings precisely to prevent such disadvantages.
- Employees may be forced to engage in a legal battle against experienced attorneys without adequate support.
- Employees may be financially burdened by the cost of securing legal assistance for an internal hearing.
- Employees may face an unfair disadvantage simply due to financial constraints.
The legislature restricted legal representation in misconduct and incapacity hearings precisely to prevent such disadvantages.
THE NEED FOR FAIR AND CONSISTENT DISCIPLINARY PROCESSES
To uphold fairness and procedural integrity, external legal counsel should be limited to an advisory role in internal disciplinary proceedings. If management insists on external representation due to lack of internal capability, fairness dictates that the same opportunity should be provided to the employee, with a reasonable legal budget allocated.
Ultimately, the principle remains clear: all employees, including management, are bound by their employment contracts and company policies. A superficial reliance on the Code of Good Practice or selective case law cannot justify procedural unfairness. Employers must recognise that disregarding their own rules—on the advice of misinformed or self-serving counsel—exposes them to legitimate claims of unfair treatment. A commitment to fairness should not be optional, it must be the foundation of all employment practices.
Ultimately, the principle remains clear: all employees, including management, are bound by their employment contracts and company policies. A superficial reliance on the Code of Good Practice or selective case law cannot justify procedural unfairness. Employers must recognise that disregarding their own rules—on the advice of misinformed or self-serving counsel—exposes them to legitimate claims of unfair treatment. A commitment to fairness should not be optional, it must be the foundation of all employment practices.
