The Labour Appeal Court recently clarified a chairperson's powers to reject a lenient sanction following a so-called “plea-bargain” reached between parties in a workplace disciplinary hearing.
The case involved an SAPS employee charged with misconduct. The parties' representatives reached a successful plea bargain: the employee changed his plea from not guilty to guilty on all five charges in exchange for a lenient sanction - a suspended dismissal valid for six months and a R500 fine. The chairperson was informed and asked to endorse it. While accepting the guilty plea, the chairperson rejected the proposed sanction as too lenient and imposed dismissal instead.
The main issue that the LAC was required to consider was whether the chairperson could reject the lenient sanction in the plea-bargain agreement. Drawing parallels to criminal trials, the Court noted that judges are not bound by such agreements and can reject unduly lenient sentences, allowing parties to withdraw and start afresh.
Key Considerations by the Court
The LAC held that a chairperson of a disciplinary hearing, like a trial judge, is not bound by a plea-bargain and must independently assess sanctions under applicable disciplinary codes and procedures, weighing mitigating and aggravating factors.
However, rejecting only the sanction while keeping the guilty plea collapses the entire agreement, breaching the so-called audi alteram partem rule (i.e. the right to a fair hearing).
To address this procedural gap in labour law, the Court proposed clear guidelines for chairpersons with reservations about a proposed lenient sanction:
- First, inform the parties of the disinclination to endorse the sanction and provide reasons.
- Second, allow parties to review positions and options, such as reopening discussions for a revised sanction or terminating the agreement.
- Third, if terminated, permit the employee to withdraw the guilty plea.
- Finally, recommence the enquiry afresh before a different chairperson, unless the employee consents to the same one.
Key Takeaways
- Plea-bargain agreements in disciplinary hearings are not automatically binding on the chairperson, who must scrutinize sanctions for fairness.
- A partial rejection (guilty plea accepted, sanction overridden) is procedurally unfair—treat it as collapsing the deal.
- Follow the LAC's step-by-step guidelines to ensure natural justice and avoid review risks.
- Employers and employees should endeavour to negotiate with these procedures in mind to prevent hearings starting from scratch.