Although most disciplinary codes of employers do not allow for external legal representation, increasingly legal practitioners are permitted to be present due to some disciplinary hearings involving complicated legal questions, and, in many instances, the seniority of accused employees often warrants the engagement of legal practitioners.

When legal practitioners are involved, preliminary issues are often raised. One such preliminary issue that could be raised is waiver of an employer’s right to take disciplinary action. In the private sector, employers often do not put timelines in which disciplinary action can be taken against an employee, once the employer has become aware of the alleged misconduct.

This leaves the question of whether disciplinary action was taken in a reasonable period of time or not, which can be determined by a Chairperson or a Commissioner once a dispute has been referred in terms of section 188A of the LRA.

Of course, many employers make express provisions on their disciplinary codes as to when disciplinary action should be taken against an employee. In the circumstances, the failure to comply with their own express provisions is a breach of the disciplinary code and the necessary comeuppance will follow.

But what constitutes a waiver? In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another ¹ Kroon J held that:

“… Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the waiver be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish.”

From the above dictum, it is clear that any conduct by the employer that demonstrates an intention to abandon its right to take disciplinary action can be viewed, objectively, as waiver. This can also be viewed as such when an employee is merely reprimanded in a seemingly serious misconduct and thereafter the employer decides that the misconduct is serious, embarks on a formal disciplinary hearing some months later. This scenario could raise the defence of double-jeopardy. ²

In Cassimjee v Minister of Finance ³ the Supreme Court of Appeal said:

“there are no hard-and-fast rules as to the manner in which the discretion to dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognized. First, there should be a delay in the prosecution of the action; second, the delay must be inexcusable; and, third, the defendant must be seriously prejudiced thereby. Ultimately, the enquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefor and the prejudice, if any, caused to the defendant. There may be instances in which the delay is relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight. The court should also have regard to the reasons, if any, for the defendant’s inactivity and failure to avail itself of remedies which it might reasonably have been expected to use in order to bring the action expeditiously to trial.”

A delicate balancing act is therefore embarked upon by the courts in determining this question. The length of the delay weighed against the prejudice of the employee. It can be that the delay is for instance a year but it is found that there was no serious prejudice suffered by the employee. It can happen too that the delay is for two (2) months but the prejudice suffered is serious. In both these scenarios, the employer may likely be found to have waived its rights to discipline.

Given the fact that the defence of waiver is dispositive in nature, employers are advised when they get wind of the misconduct, to take active steps in prosecuting the employee through a disciplinary hearing. If investigations are to be conducted in order to gather evidence, a chronology must be compiled in order to demonstrate the intention which is, for all intents and purposes, to discipline the employee.

It can be very embarrassing for the employer, in its own internal proceedings, to be found to have waived its right to discipline the employee and the employee is vindicated just on those grounds alone.

The defence of waiver, when argued effectively, can be a potent weapon in the arsenal of employees facing disciplinary hearings.

¹ 2009 (4) SA 529 (CC)
² See BMW (SA) (Pty) Ltd v Van Der Walt (2000) 21 ILJ 113 (LAC)
³ 2014 (3) SA 198 (SCA) at Para 11