Increasing sanctions on appeal
May 2009

An employee is found guilty of a disciplinary offence, and the presiding officer issues him with a final written warning. The employee appeals. The appeal tribunal finds that a mere warning was too lenient, and that the employee should have been dismissed. May the appeal tribunal increase the sanction?

This issue arose in Rennies Distribution Services (Pty) Ltd v Bierman NO & others (2008) 29 ILJ 3021 (LC). The court noted that criminal courts of appeal may increase sentences. However, this is specifically permitted by statute.

The court found that the same goes for internal disciplinary proceedings; an appeal tribunal may increase a sanction on appeal only if expressly permitted to do so by the employer's disciplinary code, and only if the employee is warned of that possibility.

But in the absence of an express provision in the code permitting the appeal tribunal to impose an increased sanction, the sanction may not be increased in any circumstances. The court accordingly refused to interfere with an award reinstating the respondent employee subject to the final warning he had originally received.

Juta's Labour Law Update Newsletter, May 2009