Can an employee be dismissed without a fair procedure?

The answer is no. It holds significant importance for an employer to be aware of the necessary procedures to adhere to when considering the dismissal of an employee. The employer must substantiate its case. This stems from the provision in section 188 of the Labour Relations Act (LRA), which places the burden on the employer to demonstrate the procedural and substantive fairness of employee dismissals.

The Labour Courts exhibit little tolerance for employers deviating from their established disciplinary procedures or failing to adequately justify their termination decisions in light of the case’s specific circumstances.

Ensuring Due Process in Employment Matters

Failure to follow such a procedure could lead to the employee taking the matter to the relevant council, CCMA or Labour Court, resulting in a potential outcome that typically includes (1) reinstatement, (2) re-employment, or (3) compensation for up to 12 months. Therefore, it is paramount for the employer to abide by a set procedure, even though our legal system may not explicitly define the same. Common law principles that the employer should ensure compliance with exist.

“Audi alteram partem” is a Latin legal principle that translates to “hear the other side.” It emphasises the importance of giving both parties in a legal dispute an opportunity to be heard and present their side of the argument before making a decision. This principle ensures fairness and due process in legal proceedings, allowing for a balanced and informed judgment.

What is the procedure to follow?

The steps an employer must take before terminating an employee’s employment are clearly outlined in Schedule 8(4) of the Labour Relations Act 66 of 1995, known as the Code of Good Practice. This code delineates the crucial procedural criteria that employers need to adhere to before carrying out a dismissal, which includes the following:

  1. The employer must inform the employee of the misconduct allegations in a manner and language that the employee can readily comprehend. This is to ensure the employee has clarity and understands the allegations against him/her so the employee can provide a response to state their case.
  2. The employee should have the opportunity to present their perspective in response to the allegations and be granted a reasonable amount of time to prepare their response. The duration considered reasonable often hinges on the complexity of the allegations and their relevance to the case at hand. A minimum period of 48 hours notice is typically required to ascertain if the employee has been afforded sufficient time.
  3. The employee should be permitted to use the support of a trade union representative or a fellow employee when preparing their response and presenting their case during any inquiry.
  4. Following the inquiry, the employer should communicate the decision reached to the employee, and it is advisable to provide the employee with written notification of this decision.
  5. If an employee is dismissed, they should receive an explanation for the dismissal, along with a reminder of their rights to refer the matter to an appropriate council with jurisdiction, CCMA, or any dispute resolution procedures outlined in a collective agreement.

During the disciplinary inquiry, it is essential to note that the employee should be given a fair chance to present their case by giving his/her testimony necessary evidence and the opportunity to call witnesses if necessary.

In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

Case Study

In the recent bargaining council decision of National Union of Furniture & Allied Workers South Africa obo Javulani / Dreamworx Bedding (Pty) Ltd (2020) 12 BALR 1257 (FBC), an employee was dismissed after he was accused of violence in the workplace, bullying colleagues and abusing female employees as well as making explicit death threats against foreign employees within the organisation.

In this case, no formal disciplinary hearing was conducted, nor was the accused formally notified of said hearing taking place. The employer held a meeting whereby the complaints brought against the accused were heard, whereafter a second meeting was held where the accused was informed of the complaints.

The accused denied the allegations. However, the consistent and corroborated versions of the complaints brought by various employees were deemed true on a balance of probabilities. The Council found that Item 4 of Schedule 8 provides for exceptional circumstances whereby a formal disciplinary inquiry can be deviated from due to witness intimidation or unwillingness to testify in formal proceedings. The dismissal was found to be fair in the circumstances.

Upholding Procedural Fairness

In summary, it is of utmost importance for employers to consistently adhere to the proper procedures when considering the termination of an employee. Procedural fairness stands as an essential prerequisite in any dismissal scenario. This entails allowing both the employer and the employee to present their perspectives and to be heard.

In instances where the stipulated procedures are not diligently followed, and the employee escalates the matter to the appropriate council or the Commission for Conciliation, Mediation and Arbitration (CCMA), a commissioner, upon detecting procedural deficiencies, may decide to grant compensation to the employee. This compensation serves as an award against the employer due to their failure to uphold the essential principle of procedural fairness in the context of a dismissal.

Please contact us if you are unsure of proper conduct while upholding procedural fairness. We are here to assist you during every step of the process.