Common Sense & Fair Play

Introduction

I adopted the credo “Common sense & fair play” for my labour consultancy in order to depict and encapsulate what, in my opinion, needs to define fairness in the workplace. The concept “fairness”, within this context, is not restricted to fairness towards employees, but includes fairness towards the employer as well. Admittedly, our statutory dispute resolution mechanisms i.e. CCMA / Bargaining Councils and labour courts are exclusively geared to potentially provide relief to the employee. An employer, for instance, cannot refer a dispute against an employee to the CCMA – the employer is always the respondent in a CCMA or Bargaining Council dispute, the latter being the point of entry in respect of any labour dispute. This, however, does not imply that the employer has no incentive to act with fairness towards its employees and that the employer cannot derive benefit from doing so. Later, in this article, I discuss the benefit the employer stands to derive from acting fairly towards its employees in more detail. How then, do we level the playing fields to get to a point where practicing industrial relations or employee relations can logically be associated with the notion of “common sense & fair play”?  

What constitutes “fairness” in the workplace?

  In order to answer this question, we first need to deal with how the operative concept “fairness” is experienced or recognised. What gives the employee or the employer the sense that he or she is being treated fairly? Arguably, it is the fact that you are attentively listened to, that your expressed viewpoint on a matter is taken into consideration to inform a decision or opinion, that you are not subjected to undue prejudice, that conclusions affecting you, are arrived at meritoriously (recognising the merits of one’s expressed opinion, declaration and circumstances), to mention but a few tenets of the concept of fairness, as it would resonate with the reasonable person.  

How does the law enable the concept “common sense & fair play” in a practical way?

  Legal scrutiny, legal assessments and argumentative legal submissions, which we so often come across in court cases are, at its best, utterly confusing and intimidating, especially for the lay person, whether an employer or an employee, who just wants to operate in an employment scenario which makes common sense and constitutes fair play. Removing from the equation the confusing legalese and thinking practically and with one’s in-born sense of justice about what reinforcement our law provides us with to facilitate a labour or employment scenario conducive of common sense and fair play, we are bound to find that, to this end, there are in fact certain enabling principles in our law. Let me unpack this statement for you:

• The principles of natural justice

There are common law principles which were derived over time from judgements and which created precedent governing future cases and circumstances to be decided. The principles of natural justice fit into this category and are said to be expressions of the close relationship existing between common law and moral law. Practically, the so-called twin principles of natural justice are:

• Audi alteram partem (literary “hear the other side”) – Audi principle for short

In practical terms, it implies that the person who has the authority to take a decision which has the potential to affect the rights, liberties and privileges of another person, is obliged to first hear and consider the statement of case, input or explanation of the latter person, before pronouncing his/her decision. It however requires much more than merely giving the other person an opportunity to state a case or to speak out. In order to be “heard” appropriately, the person must be apprised of the subject matter in question in so much detail as would enable that person to adequately prepare a response. In certain circumstances, to be heard properly may require some form of representation, be it legal representation or representation by a trade union official or fellow employee. Obviously, there are rules governing representation in the workplace, hence legal representation in internal disciplinary proceedings is not an established right, while the recourse to such representation can also not be ruled out totally. Each request for legal representation must be determined on its own merits, also taking cognisance of what established rules and internal policy provides in this regard.

• Nemo iudex in causa propria sua (meaning: “not to be a judge in your own case”) – Nemo iudex principle for short This is the other procedural safeguard covered under the principles of natural justice, requiring a decision maker to be free from bias. The person tasked with taking a decision which has the potential of affecting the rights, liberties and privileges of another person must have an uncontaminated, open mind regarding the matter before him/her when hearing the case. For example: the person that caught the employee sleeping on duty, cannot be the decision maker in the disciplinary hearing determining the guilt of such person and deciding on the appropriate sanction. It goes even further in that such decision maker should not have any prior knowledge of the transgression allegedly committed.

  To properly give justice to the application of this principle, the unbiasedness of the decision maker must be so, both in fact and in reasonable perception. Let me illustrate “fact” versus “reasonable perception” by way of two examples: Example 1: In a big corporate company with many branches country-wide, a certain manager is called upon to chair a disciplinary hearing in another region of the company. The branch manager of the branch where the accused employee works is the initiator (“prosecutor”) of the case, but also a friend and colleague of the visiting chairperson. Having arrived early for the hearing, the visiting chairperson joined the branch manager in the latter’s office for a cup of coffee and a chat about times they worked more closely together. The disciplinary case is not discussed between them and the office door is left open. In walks the employee, accompanied by the trade union official and they see the visiting chairperson and branch manager (initiator) in each other’s presence, having a discussion. Unless the total engagement between the branch manager and visiting chairperson was done in a way that it can objectively be verified that the disciplinary case concerned was not discussed by them, it will be impossible to establish the innocence of their engagement factually. The perception however remains that they probably could have discussed the case, as they had the opportunity to do so and because the branch manager obviously had an interest in the visiting chairperson finding in his favour, he potentially had a motive to having used the opportunity to influence the visiting chairperson in his favour. While, theoretically, whoever alleges must provide proof, the mere fact of having allowed this perception to be created (totally unnecessary so), is a gross error of judgement by the branch manager and visiting chairperson, hence the mere existence of this perception of bias could render the appointed chairperson unsuitable to chair the hearing, without necessarily putting the employee to the proof of the alleged bias or collusion. Example 2: In a medium-sized company where everyone basically knows each other, the appointed decision maker in a disciplinary hearing, when entering the room where the hearing is about to take place, jovially remarks towards the accused: “My word John, are you in trouble again?”. Needless to say, this unfortunate remark effectively tainted the prerequisite unbiasedness, open- mindedness and objectivity of the appointed decision maker, albeit by mere perception, rendering him/her unsuitable to officiate as decision maker in this case.

• Other principles in our law facilitating common sense & fair play The following legal principles or legal premises are, strictly speaking, not principles of natural justice, as it is formally coined, but they are inextricably linked to the twin principles of natural justice discussed above, both in cause and in effect.

 

• Innocent until proven guilty Where someone is formally tasked to preside at a disciplinary hearing, the point of departure should be that, unless and until guilt is proved at least on a balance of probability, the accused is presumed innocent. Do you see the connection with the Audi principle (first hear the other side before reaching a conclusion) and with the Nemo iudex principle (being unbiased in fact and in perception)?
• Whoever alleges must prove Where someone is formally accused and subjected to a trial process, decisions are based on verifiable evidence and nothing is taken for granted. Even when, in the (subjective) knowledge of the presiding officer or decision maker, a certain allegation may be factual, it must still be objectively proven by the person who makes the allegation, thus enabling the decision maker to base his/her finding on sufficiently proven evidence presented at the hearing. Again, this legal principle ties in nicely with the twin principles of natural justice.
• The accused to be afforded the benefit of doubt Again, there is a distinct inter-connectedness with all four of the previous principles, when considering this principle. Because the accused is regarded innocent until proven guilty, he or she will remain innocent when there remains, on a balance of probability, sufficient doubt regarding the accused’s guilt. Only once the guilty threshold is overcome, following due assessment of the evidence presented and verified, the doubt will appropriately be disposed with.

Armed with these legal principles in one’s arsenal, knowing that it is your legal entitlement to be protected by principles that not only makes perfect sense, but also facilitate the levelling of the playing fields, one cannot escape the conclusion that employee relations/industrial relations, when practised correctly, is characterised by common sense and fair play. The benefit of aligning internal processes, policies and procedures with what is expected of decision-making bodies in the statutory dispute resolution mechanisms (CCMA, Bargaining Councils & labour courts) At this point you may wonder how then the employer stands to benefit from the fairness accomplished by adherence to the legal principles referred to above, realising that, predominantly, it is the employee’s rights, liberties and privileges that are protected. Granted – this is fair comment, especially since the employer, as respondent in the legal procedures of first instance, is always in reactive mode. The consolation, however, is that the employer’s adherence to and observance of the principles discussed above, is not a mere act of altruism, favouring only the employee. Fact is, it dramatically increases and almost ensures the prospect of success in any litigation process. Furthermore, the mere fact that the employer purposefully and sincerely adhered to the said legal principles, aimed at providing procedural safeguards of fairness, serves as a deterrent to those who wish to dispute managerial decisions, merely for the sake of challenging it as a matter of course. On the other hand, to those employees who are taking their role in the organisation seriously and are forming the backbone of the organisation, the employer’s adherence to these principles instils a sense of job security and legal certainty, which leads to stability, productivity and ultimately profitability. Lastly, by adhering to the legal principles discussed herein (which more profoundly apply to decision-makers and adjudicators officiating in the statutory dispute resolution mechanisms), employers are essentially aligning their modus operandi with that of those officials who are tasked to scrutinise and evaluate the fairness of their managerial decisions. Such alignment can only bode well for the employer and will, at the same time, simplify the task of the adjudicator. To me, at least, the adherence to the legal principles discussed above equals common sense and creates an environment for fair play.  

Author’s clarifying note

  From the onset, it was my intention not to get embroiled in legalese that tends to mystify and obfuscate what I aim to convey. There is a school of thought that advocates a watered-down, over-simplification of procedures dealing with employee matters, reinforced by complicated legal arguments regarding to what extent the mentioned legal principles find application in the workplace. I am acutely aware of these arguments and I am not doubting its legal correctness. Practical experience over more than 40 years, however, taught me that valuing your employees and treating them with fairness and respect, as is ably facilitated by observing the legal principles discussed in this article, spontaneously lead to reciprocity from the workforce’s side. There are obviously certain principles, beliefs and practices which are not mandatory to adhere to, but are commitments embraced voluntarily, from which value can be derived. The Codes of Good Practice annexed to the Labour Relations Act are examples in this regard. Similarly, the adherence to the legal principles concerned, as if it is legally incumbent on you to do so, is advisable. There is much truth in the statement: One not only must be fair, but you must be seen to be fair. If it makes sense to you, consider incorporating the legal principles discussed in this article into your interaction with your employees, whether you do so formally or merely adopt it as part of your managerial philosophy. Just as charity begins at home, so does fairness. It is not someone else’s responsibility to ensure that you have a stable and secure workforce, capable of performing optimally. Seize this opportunity to become an employer of choice. Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za. Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP