Risks of terminating without a hearing

Section 188 (1) of the Labour Relations Act 66 of 1995 (‘LRA’) states that;
“a dismissal which is not automatically unfair is still unfair if the employer fails to prove –
(a) That the reason for the dismissal is a fair reason –
(i) Related to the employee’s conduct or capacity; or
(ii) Based on the employer’s operational requirements; and
(b) That the dismissal was effected in accordance with a fair procedure.”

It should be borne in mind that internal company policies primarily regulate dismissal and the procedures followed. However, it is possible to do away with dismissal policies and procedures, for the sake of this article, let’s consider both options:

Where internal dismissal policies and procedures exist

Riekert v Commission for Conciliation Mediation and Arbitration and Others (JR686/03) [2005] ZALC 90; [2006] 4 BLLR 353 (LC); (2006) 27 ILJ 1706 (LC) (28 September 2005) the Court found that the employer had an extensive disciplinary code which it had deviated from in the dismissal of an employee, and subsequently held, on review, that “the CCMA arbitrator had been wrong in accepting the employer’s deviation from its own code in the absence of any compelling reason for such deviation.” Albeit internal disciplinary policies and procedures act merely as guidelines, this does not permit employers to stray from their procedures as they please.

In the absence of compelling reasons, an employer may not simply disregard its own internal policies and procedures and dismiss an employee in whichever manner it deems fit, where internal policies and procedures are entrenched, the employer is bound thereto and should follow its dismissal procedures accordingly.

Where there are no internal dismissal policies and procedures

Item 4 of Schedule 8 of the Code of Good Practice on Dismissals describes a fair dismissal procedure as “the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed to state a case in response to the claims.

The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken”. Common law, as codified by the Code of Good Practice, dictates that an employee MUST be allowed to be heard for a dismissal to be considered fair. There exists no statutorily imposed approach which should be followed before the dismissal of an employee, mainly where compelling evidence and circumstances exist in support of a dismissal.

Case Study

AUSA obo Melville v SA Airways Technical (Pty) Ltd (2002,6 BALR 573) quoted, “The Code of Good Practice in Schedule 8 makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Case law supports this stance in laying out that the onus placed upon an employer when dismissing an employee is at a basic level, and should one determine that fair process was followed, albeit not per ‘traditional’ dismissal procedures, such a dismissal will be following Section 188 of the LRA and thus considered fair.

In conclusion, an employer CAN NEVER dismiss an employee without having held some form of hearing/inquiry/investigation, the nature of that hearing/inquiry/investigation and the fairness in respect thereof would then be open to interpretation.

Contact our offices today at 0861 737 263 or email us at info@invictusgroup.co.za to learn more about how we can assist you in achieving a fair and favourable outcomes.