Employers may find themselves in situations where discipline can only be instituted sometime after the fact due to various reasons such as information pertaining to the employee’s misconduct coming to light at a later stage or due to the length of an investigation into such misconduct. The question however remains, how long after the fact may an employee be disciplined for their conduct? After all, justice delayed is justice denied.
It is imperative that after misconduct has come to light an employer should do a thorough investigation into the matter in order to ensure the substantive fairness of the disciplinary actions.
Employers should bear in mind that disciplinary action should be taken within a reasonable time frame as held by the Constitutional Court in Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (2019) (4) BCLR 506 (CC) as this also contributes to the procedural and substantive fairness of the proceedings.
In view of the Labour Court, serious prejudice may occur against the employee being disciplined due to the unreasonable delay in disciplinary action relating to the principle that justice delayed is justice denied. The unreasonable delay in disciplinary action may also lead to an employer deserting their right to disciplinary action against an employee.
The Constitutional Court also held that there is no hard or fast rule to determine if a case is procedurally unfair based on the delay in disciplinary action and that the following should be taken into account when deciding if the delay is unreasonable:
- There must be an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
- Did the employee take steps to assert his or her right to a speedy process?
- Did the delay cause material prejudice to the employee? Establishing this includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.
- The nature of the alleged offence must be considered. The nature of the offence could, in itself, justify a longer period of investigation, or in collating and preparing proper evidence, thus causing a delay that is understandable.
- All these considerations must be applied holistically.
Thus in an effort to answer the original question, it has become clear that although a thorough investigation should be done into the alleged offence, it should be done speedily. The employer should also allow an employee enough time to prepare for disciplinary action and to apply their mind to prepare a defence. This may be seen as a justified reason to delay proceedings should it be properly motivated.
Cases will also have to be judged on a case by case basis as the Constitutional Court made it clear there is no hard or fast basis and no set time period wherein disciplinary action must take place.
It is clear from the above that having expert labour law advice from the onset is crucial in ensuring a proactive and efficient resolution of disciplinary action in the workplace.
Contact Invictus on 0861 737 263 for any queries/assistance regarding the initiation and finalization of your disciplinary inquiries.