While most, if not all, these findings favoured the employee as the applicant, it would seem that, as a consequence, there is a growing perception that employers have carte blanche to regard the company disciplinary code and procedure as simple guidelines. This raises a  number of questions.

“In a matter we dealt with recently, the attorneys representing a large, listed company argued, that the Code of Good Practice and, for that matter, Labour Court precedent, allowed them carte blanche to disregard their own published disciplinary code and procedure when, for reasons of convenience, their preset rules don’t suit them,” noted Botha.

“While we agree that the Labour Court has narrowly ruled that a company’s policies and procedures do not themselves become conditions of employment or binding on the company, as always, the devil is in the detail,” Botha emphasised.

This specific case related to an internal disciplinary process where the employee was precluded from having legal representation, but where the employer chose to set these policies aside and appoint an external council to prosecute and argue their case before the designated chair. 

Botha noted that this creates an imbalance in what is intended to be an internal process, where both the complainant and the employee are simply required to present the facts and evidence on which they rely to the chair. “This breach is also not remedied by management’s arbitrary election to, suddenly and after the fact, allow the employee to be represented should they so choose,” he said.

INMISO recommends that the role of external counsel in internal proceedings be restricted to advisory.

Botha explained that it’s important counsel inform their clients that management (even the executive directors) are also employees and are therefore bound in terms of their employment contracts to abide by the company policies and procedures as they exist at any point in time, and that failure to do so would be misconduct.

“In short, the principle remains simple: all employees, including management, are bound to follow the precepts contained in their contracts, and a simplistic reliance on the Code of Good Practice, or case law, taken out of context, will not prevent a claim of procedural unfairness when, at the recommendation of ill-informed or self-interested counsel, management unilaterally chooses to flout its own rules – nor should it,” concluded Botha.

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