EOHCB Discusses Virtual Disciplinary Hearings

Dear EOHCB Member & Industry,

During the COVID-19 pandemic, businesses have had had to drastically adapt and change the way that they functioned to limit their risk of exposure as far as possible. Many businesses have moved over to virtual platforms and work remotely. With many meetings being conducted online it has come into question if hearings and consultations such as disciplinary hearings and retrenchment consultations are possible via video conferencing facilities.

Judgments

The Labour Relations Act does not prescribe the form which a consultation process must assume, as long as the principles of the Act and the Code of Good Practice on Operational Requirements are applied. In an urgent application to the Labour Court in the case of Food and Allied Workers Union (FAWU) vs South African Breweries (Pty) Ltd (SAB) & another (2020) the court stated that although it is preferable to have face-to-face consultations during the section 189 consultation process, the COVID-19 pandemic has seen remote meetings become the ‘new normal’.

The Court held that in the context of the COVID-19 pandemic, where physical consultations were not possible, it is fair to hold consultation proceedings via video conference platforms in the interests of health and safety and to adhere to social distancing.

The Labour Court also dealt with the use of virtual platforms in arbitration hearings in Simmers v Campbell Scientific Africa where the Judge held that while it was not an ideal situation to allow a witness to testify via Skype or a long-distance telephone link, it was justifiable due to the fact that this precedent has been set. In addition, the allowing of evidence to be led via Skype or any other electronic platform may lead to fewer postponements and costs being saved in the form of transporting and accommodating witnesses.

The CCMA has also been given discretion to conduct their processes in this manner.

Considerations

The ‘audi alteram partem’ principle (i.e., the opportunity for a person to state his or her case) has been and remains of utmost importance in cases where the outcome can have adverse consequences to the persons effected as it can affect the substantive fairness of the outcome. Employers need to consider the nature of the matter and if it is possible to communicate effectively via electronic platforms (i.e., are the participants familiar with the platform?) as well as the practicality of conducting processes on a web-based platform due to accessibility to technology in rural areas.

Recommendation

Although the courts have endorsed the conducting of arbitration processes, whether a virtual hearing will be beneficial or prejudicial to a case needs to be determined based on the circumstances at hand.

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