Dismissal without a proper hearing

called the audi alteram partem rule “hear the other side” – “the audi rule”.
The right to a hearing in disciplinary matters was long fought for in the workers’ struggle.
Even when workers did not have that right written into law, they could still invoke the audi rule because it is a right under common law.
Common law always prevails unless the laws of the country revoke it. When applied to a disciplinary matter, common law states that both parties must be given an opportunity to state their respective cases.
If organisations refuse, neglect and or fail to apply the rule the proceedings will be declared procedurally unfair.
Procedural unfairness could lead to punitive financial measures against the organisation.
Sooner or later the labour law catches up with employers who fail to follow proper disciplinary procedure and to provide good reason for dismissals.
This is because the Labour Act (Chapter 28:01) gives the employer the onus of proving that he has been procedurally and substantively fair in dismissing employees.
The Labour Courts are most intolerant of employers who do not follow their own disciplinary policies and who cannot justify their dismissal decisions based on the facts of the case at hand.
The Labour Act (Chapter 28:01) sought to codify common law. It requires employers to respect the “audi rule”.
If a small company fails to bring in a neutral person to hear the worker’s side of the story, the court will not necessarily hold the employer liable.
Instead it will try and establish whether the worker(s) had a chance to state their case.
In South Africa, the Labour Appeal Court has reiterated this point in the case of Semenya & others v/s NUMSA & others (2006) 15 LAC 1.11.1.
The applicant (employer) and the respondent (employee) met and the former informed the latter that her employment contract was terminated.
The meeting was not a formal disciplinary enquiry with a neutral chairperson. The worker protested that she was dismissed without a formal disciplinary proceeding.
The employer offered her a formal hearing with an independent chairperson. The worker held that the company had already dismissed her and that the hearing would be a mere formality.
She refused the offer. The CCMA (Commission for Conciliation, Mediation and Arbitration) commissioner and the court found in favour of the worker.
However, the Labour Appeal Court reached a different conclusion with costs against the respondent (employee).
Labour Court Judge President Zondo and Acting Judges of Appeal Davis and Nkabinde found that both the Labour Court and the respondent CCMA commissioner were wrong in their judgment.
The judges found that the worker was wrong to refuse the hearing. The independent chairperson could have reached a different finding.
This judgment should therefore educate workers that as much as they think that chairpersons chairing disciplinary hearings are bound to be biased because their services are paid by the company, they need to accept offers for the hearing as long as the chairperson was not involved in the incident.
If they feel the chairperson was biased then they can declare a dispute at the Ministry of Labour or bargaining council after receiving the notice of dismissal.
The judgment is also a reminder to employers that they need to conduct hearings before dismissing employees.
Even in strike situations, regardless of whether the strike is protected or not, the courts have declared that the dismissal of strikers without a hearing is unfair as was the case in Modise and Others v Steve’s Spar Blackheath (2000) 9 LAC 9.3).
No Labour Court decision illustrates these points better than the one delivered in Riekert v CCMA and others (2006, 4 BLLR 353).
In that case Riekert was fired for having gained access to confidential information without authorisation and for undermining the good relations of company management.
He took the employer to the CCMA but after hearing the facts, the arbitrator upheld his dismissal. Riekert then took the arbitrator on review to the Labour Court where the judge made the following findings: The CCMA arbitrator had recognised that the employer had a very extensive disciplinary code in place but had not adhered to it in this case.
Since the employer’s disciplinary code was incorporated in his employment contract the employee was entitled to insist that it be complied with.
Despite the above the arbitrator found that the employer had complied with the basic requirements of natural justice and that disciplinary codes were mere guidelines.
While it is true that disciplinary codes are merely guidelines this does not entitle employers to deviate from the procedures of the organisation as and when they liked.
It was unclear how the arbitrator arrived at the conclusion that the hearing was substantially fair.
This was because, contrary to the employer’s own disciplinary code, the chairperson of the hearing had neither kept any minutes of the proceedings nor provided any explanation for his decisions.
The employer had waited six months from the time he became aware of the misconduct before bringing the charges against the employee.
This was despite the employer’s own disciplinary code that required that charges be brought within a reasonable time.
The employee had been denied the opportunity to call witnesses in his defence.
The CCMA arbitrator had been wrong in accepting the employer’s deviation from its own disciplinary code in the absence of any compelling reason for such deviation.
No witnesses had been brought in respect of the charge of undermining good relations of company management and the arbitrator had heard nothing to provide any basis that would justify that charge.
The arbitrator had not applied his mind to his decision that the employee was guilty of the charge of accessing confidential information without authority.
The employer’s witnesses were not even able to remember the date of the alleged incident.
The arbitrator’s findings that the employee had not been frank in his testimony had neither been justified nor reasoned.
The arbitrator had failed to apply his mind to the evidence at all. The arbitrator’s award was set aside.
The dismissal was found to be both substantively and procedurally unfair. The employer was ordered to pay the employee R100 000 in compensation plus interest. The employer was also ordered to pay the employee’s legal costs.
This case is of great importance as it provides employers with a number of extremely valuable lessons on how to manage the disciplinary process in their organisations.
Among other things, they should not: ignore their own disciplinary codes, allow any unnecessary delays in notifying employees of disciplinary charges, prevent an employee from bringing witnesses to his or her disciplinary hearing.
Employers should also not forget that before attending a disciplinary or arbitration hearing, they should gather and prepare all evidence thoroughly.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.
l Taurai Musakaruka is Human Resources Practitioner. Feedback e-mail to [email protected] or [email protected]