Dismissal: The principle of natural justice Part 2

all of a sudden are no longer required by the organisation”.
In Makovere and Zvimba RDC (LC/H/330/2003), Makovere was absent from work for five days without reasonable excuse.
Council officials suspended Makovere pending a disciplinary hearing.
The suspension was subsequently lifted and he was transferred to another department.The employee objected to this treatment and applied for leave.
Council responded by changing the transfer destination at two days notice (on a Friday, with transport to the new station arranged for Sunday).
They also tore up his leave application forms submitted on that Friday on the grounds that he was back on suspension.
After five days they finally responded to the employee’s letter of objection written the previous Tuesday by seeking (five days later) to dismiss him on the grounds that he was absent for five days without reasonable excuse from the new station which he had been transferred.
The Labour Court held that it was clear that Makovere did not absent himself from work without reasonable excuse.
His employer officially sent him home resulting in him not reporting for duty on the days in question.
As such it should not be allowed to rely on misconduct it had induced as a basis for dismissal.
Another classical case is that of Larcombe vs Natal Nylon Industries (Pvt) Ltd, the employee was dismissed after an alleged fallout with members of the employers’ management team.
This was judged to be unfair. Mr Larcombe alleged incompatibility arose from a tiff with another member of the management team, which led the managing director to conclude that one of them would “have to go”.
The Court held that this was a totally inadequate reason for getting rid of Larcombe.
So too was the dismissal in the issue of Joslin vs Olivetti Systems and Networks Africa.
Mr Joslin was fired because he had conducted himself in a manner considered unbecoming of one of the company’s management team.
His offending actions consisted of among other things, walking about with a fistful of pens crammed into his shirt pocket, promoting a “yes” vote in a national referendum and on one occasion wearing a Springbok cap to work.
The Court found out that the applicant’s behaviour, though odd was merely a “mild form of exhibitionism” not warranting dismissal.
However, incompatibility can give rise to very serious problems, including the spectre of industrial action.
Such was the case in Amalgamated Industries (Pty) Ltd vs Jonker and also in the SA Quilt Manufacturers v Radebe.
In both cases workers demanded the dismissal of employees concerned: Jonker for allegedly releasing information of workers in a previous job.
Radebe because she had allegedly intimidated and harassed her subordinates to an extent that 80 percent of employees demanded her dismissal, failing which they threatened to strike.
Jonker was granted generous compensation and for Radebe the employer complied with the workers’ demand and after disciplinary hearings, counseling and offering Radebe a transfer, which she declined, and was dismissed.
The Court accepted in principle that an employee could be dismissed on the grounds of incompatibility, although Radebe was awarded compensation.
Whilst the principles of “natural justice” are important, particularly at the end of a process such as dismissal, they are less critical in minor or trivial matters such as the first incidence of poor time keeping or the first incidence of absenteeism.
This principle was also highlighted by the Court in Morrin Morrin & Malone (The Barge) and A Worker (CD/03/945).
Here the Court stated that it “is satisfied that the claimant was not given a fair and reasonable opportunity to state his case at the meeting”.
They also found that “the dismissal was an excessively harsh punishment for any misdemeanours he may have committed” and awarded the claimant 3 500 euros in compensation.
Similarly in John Casey Limited and a Worker (CD/05/596), the claimant stated that she was called into the office and was summarily dismissed by the management.
The management at this meeting made a number of allegations about her work performance, which she believed were merely created as a justification for dismissing her.
Management for its part produced a list of errors, which they stated had been brought to her notice and that she had been warned on a number of occasions about her shortcomings in relation to her job.
However, the court found that “it is not acceptable for the company to send for an individual without indicating the seriousness of the meeting, without offering any representation, and then to summarily dismiss the person’ and recommended that the employer pay the claimant 20 000 euros in compensation.
One of the core principles of natural justice, along with the right of reply, is the right to representation.
The Labour Court has noted time and again that such a right cannot be denied to the employee.
This was noted in Morin et al, in John Casey et al (CD/05/596) and again in Cellular World and a Worker (CD/01/718).
In the Code of Practice, such a representative includes a colleague of the employee’s choice including a person from a registered trade union or workers committee.
This right should be included in the organisation’s Grievance and Disciplinary procedures.
The code excludes ‘any person or body unconnected with the enterprise”.
However, in Burns and Hartigan vs Governor of Castlerea Prison ([2005] IEHC 76), the High Court found that due to the gravity of the sanction that faced the employees, a legal representative should be allowed at disciplinary hearings.
As a general rule, the Code of Best Practice requires that, where any performance or behaviour deficiencies are identified, companies should not proceed straight to a disciplinary procedure but should attempt to resolve any issue first through a coaching and support process. Dismissing for the sake of dismissing will lend you in trouble with the law.
(Disclaimer: I do accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein. I am committed to regularly update all information that is subject to change from time to time. The information contained herein does not serve as alternative to legal advice.)
l Taurai Musakaruka is Human Resources Practitioner: For feedback e-mail to [email protected] or [email protected]