The Labour Court recently held, in the judgment of Broadcasting, Electronic, Media & Allied Workers Union and others vs South African Broadcasting Corporation and others (2016) that the South African Broadcasting Corporation (SABC) was justified in departing from the provisions of its  disciplinary code and procedure when it disciplined more than 100 employees for alleged medical aid fraud.

The SABC's disciplinary code provided employees with the right to individual hearings presided by a panel of three chairpersons. In terms of the code, employees should have the opportunity to provide viva voce (oral) evidence with the right to cross examine the SABC representative and /or the witnesses (where applicable).

Despite what was contained in its disciplinary code, the SABC did not hold individual disciplinary hearings and instead invited the employees to respond to the charges in writing which were then submitted to an independent Chairperson for consideration.

The independent chairperson considered the SABC's allegations and the employees' representations in response thereto and thereafter made a decision on the individual guilt of each employee. Once a determination on guilt was made, representations on the sanction to be imposed were conducted in the same manner (in writing).

On receipt of a notice to some employees advising them that the outcome of the process would be delivered on 18 January 2016, the Broadcasting, Electronic, Media & Allied Workers Union ("the Union") applied to the Labour Court, on an urgent basis to interdict the disciplinary proceedings on the basis that the SABC's deviation from its disciplinary code was procedurally unfair.

Upon consideration of the submissions made by the respective parties, the Labour Court held that although the process adopted by the SABC in this case was different to its normal approach, it could not be said that the process (which was in writing) was not a "formal disciplinary hearing" as the process envisaged a hearing chaired by an independent and experienced Chairperson (albeit on paper). This in the Labour Court's view satisfied the requirements as set out in the Code of Good Practice of the Labour Relations Act which was endorsed in the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006).

The Labour Court went on further to hold that to have individual hearings for more than 100 employees would impede "workplace efficiencies". The presiding Judge reiterated that the Labour Court will only intervene in an incomplete disciplinary hearing in exceptional circumstances or in circumstances where a failure to intervene would lead to grave injustice.

The Labour Court concluded that it was satisfied that the deviation of the prescribed procedure still ensured that discipline would be exercised fairly and in accordance with the rules of natural justice.  

This case serves as a reminder that although an employer may prescribe procedures to be adopted in a disciplinary enquiry, these procedures may, when circumstances permit, be deviated from provided that the accused employees have the right to be heard before a decision is made.