A phrase commonly used in law is “Justice delayed is justice denied”, meaning that by delaying to charge and finalise an employee’s hearing would be to deny their justice and therefore denying a fair hearing.
But what constitutes a delay?
Section 188 of the Labour Relations Act (LRA) sets out strict requirements to ensure that a dismissal is fair. However, none of these requirements deals with the time limit between the commission of the misconduct and the date on which the notice of hearing must be served. When there is no legislated answer we turn to case law.
In the case of The Department of Public Works, Roads and Transport v Motshosa and others [2005) BLLR 957 (LC) the employer charged the employee 3 years after alleged misconduct. The arbitrator in this matter had repeatedly asked for an explanation for the delay. The employer failed to provide an answer and the dismissal was later found to be unfair and the employee was reinstated.
Riekert vs CCMA and Others (2006) 4 BLLB 353 is another example whereby an employer was unable to provide a reason for the delay. In this matter, the employee was charged 6 months after the employer learned of the alleged transgression. The Labour Court found the dismissal to be unfair for various reasons but one of these reasons was the unreasonable and unnecessary delay between learning of the alleged transgression and notifying the employee of the charges.
In the above cases, the same question was asked – “What is the reason for the delay?”
A delay may be found to be acceptable and overlooked on condition that the employer can provide a sound reason for it.
The misconduct itself will also be considered when determining whether a delay is reasonable. Minor transgressions such as late-coming or absenteeism would not require lengthy investigations and an employer should become aware of this wrongdoing promptly, therefore, a considerable delay will not be justified. Serious misconduct on the other hand, such as negligence or dishonesty may require a comprehensive investigation, which requires time, especially if the act is complicated such as fraud. Should a chairperson in a disciplinary inquiry question the reason for a delay in charging an employee, the employer will need to provide a satisfactory explanation. It could have a negative impact on the outcome of the hearing if there isn’t an explanation.
This is not the only consequence of an unreasonable delay, below are a few more important consequences to bear in mind:
- Witnesses’ recollection of the matter may begin to fade which could cause them to falter under cross-examination.
- A witness may resign and no longer be reachable on the day of the hearing.
- An unreasonable and unnecessary delay could cause doubt as to whether the trust relationship has truly broken down to such an extent that a continued working relationship is impossible and dismissal is, therefore, the only appropriate sanction. In other words, “If this transgression is so bad, why did it take the employer so long to charge this employee?”.
Trying to avoid a delay should not cause an employer to rush haphazardly through an investigation to the detriment of the case nor should it hinder the employee’s right to prepare their own defence adequately.
In summation, an unreasonable or unnecessary delay will be determined according to the circumstances and the complexity of the case and whether there is a sound reason for the delay. Therefore, once a transgression is discovered an employer must act swiftly by performing a thorough investigation in a timeous manner and without unnecessary delays. The charges must be formulated and put to the employee as soon as possible.
ABOUT THE AUTHOR
Victoria Thompson joined the SEESA Cape Town Labour Office as a Legal Assistant in 2016. After obtaining her LLB degree from the University of South Africa in 2017 she got promoted to a Legal Advisor.