Employer Options

In employment law, disputes that arise from disciplinary hearings can be intricate and heated. Many employers opt to hire independent chairpersons to prevent the possibility of ending up in the CCMA (i.e. the Commission for Conciliation, Mediation, and Arbitration). Nevertheless, when employers are displeased with decisions that these disciplinary chairpersons make, seeking recourse can become a challenging matter. At this point, a significant amount of money may have been spent, and a lot of productive time may have been lost.

There is very limited scope for appealing the hearing (in most circumstances), and taking it on review in court may also not be possible.  However, recent cases in South Africa have reshaped the landscape of employer remedies in such situations, mandating a careful reconsideration of available options.

The Legal Position

Historically, as illustrated by the case of Branford v Metrorail Services (Durban) and Others[1] employers faced with unfavourable disciplinary rulings had the recourse of re-instituting disciplinary hearings. However, in subsequent rulings, notably South African Revenue Services v Commission for Conciliation, Mediation and Arbitration and Others,[2] and Opperman v CCMA and Others,[3] have significantly altered the legal terrain.

In Branford, the Labour Appeal Court sanctioned the option of a second disciplinary hearing, affirming its viability under specific circumstances, as delineated in BMW SA (Pty) Ltd v Van der Walt.[4] This decision underscored the importance of fairness in disciplinary proceedings and highlighted the permissibility of a second hearing when deemed equitable. However, the court’s reference to potential ultra vires actions under the employer’s disciplinary code hinted at the necessity for procedural fairness.

In the context of labour laws and regulations, the SARS case demonstrated the importance of adhering to contractual obligations and following proper procedures. In this case, an employer’s decision to unilaterally dismiss an employee, despite a collective agreement in place, was deemed to be substantively unfair. This highlighted the significance of disciplinary decisions and the need to comply with established protocols.

The Opperman ruling was a pivotal moment in defining the boundaries of employer interventions in disciplinary sanctions. The ruling stated that an employer can only modify disciplinary outcomes if it is explicitly provided for in the disciplinary procedures. Additionally, the court emphasised the need for procedural transparency and employee engagement in cases where sanctions are escalated.


The legal precedents mentioned above provide important guidance for employers when dealing with disciplinary disputes. Firstly, it is essential to have clear and specific disciplinary procedures that outline the employer’s right to intervene in disciplinary outcomes. Secondly, it is crucial to follow procedural fairness and contractual obligations to avoid any claims of unfair dismissal. Lastly, re-hearing should be considered only in exceptional circumstances and with procedural safeguards in place.

Contact an expert at SchoemanLaw for all your legal needs.

[1] [2004] 3 BLLR 199 (LAC)

[2] [2016] 3 BLLR 297 (LAC) 

[3] (C530/2014) [2016] ZALCCT 29 (17 August 2016) 

[4] (2000) 21 ILJ 113 (LAC)