Can an employee be dismissed without a disciplinary hearing?France Ntuli

Common law lays down that a person must be afforded an opportunity to state his or her side of the story. This is 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 was a common law right. 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 companies refuse, neglect and/or fail to apply the rule the proceedings will be declared procedurally unfair. And procedural unfairness could lead to punitive financial measures against the company.The Labour Relations Act of 1995 sought to codify common law. Its Code of Good Practice requires employers to respect the “audi rule”.The Code does not give workers the automatic right to a formal hearing. If a small company fails to bring in an independent 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.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. The former informed the latter that her employment contract was terminated. The meeting was not a formal disciplinary enquiry with an independent 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 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 CCMA or bargaining council within 30 days 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. (see Modise and Others v Steve’s Spar Blackheath (2000) 9 LAC 9.3.)However there are instances where the courts have established that an employer can dismiss workers without a hearing.These are:* if the worker walks out of the hearing or does not turn up for the hearing* If the worker himself/herself waives the right (rejects) the hearing * in crisis situations where workers are on strike and the strike has turned violent and the employer has taken reasonable steps to stop the violence and where there are barriers to entering or leaving the employer’s business premises because of the strike.

France Ntuli is one of Numsa’s National Legal Officers francen@numsa.org.z

Briefs: Cosatu takes crucial unfair dismissal judgment to Constitutional Court

Cosatu is appealing to the Constitutional Court over an unfair dismissal case of a security worker, Zandise Sidumo, who was employed by Rustenburg Platinum. The case has been set down for May 8 2007. At arbitration the CCMA found Sidumo was guilty of misconduct but that dismissal was not an appropriate sanction. It ordered the company to reinstate him and pay him three months backpay. The company then took the matter on review to the Labour Court and when this court threw it out, to the Labour Appeal Court (LAC). However, the LAC also upheld the view of the CCMA. Undaunted, the company then went to the Supreme Court of Appeal (SCA) which found in the employer’s favour. The SCA said that CCMA commissioners should “display a measure of deference to the employer’s sanction” – in other words, commissioners should respect the reasons of the employer. Cosatu believes that such a judgment undermines the role of CCMA commissioners and wants the Constitutional Court to resolve on these questions:* What is the function of a CCMA commissioner in deciding an unfair dismissal dispute?* How is a CCMA commissioner to approach an employer’s decision to impose the sanction of dismissal? Is the commissioner limited in any way by the employer’s view of the matter, or is that merely evidentiary material to be taken into account in deciding whether the dismissal was fair?* What principles govern the review of a CCMA commissioner’s arbitration award?* What approach should be adopted by a Court hearing an appeal against a judgment of the Labour Court in a review application?

This damaging judgment follows that of a Numsa-organised company Fry’s Metals where the company first tried to change the shift pattern and when workers refused, said that the change to the shift pattern was “an operational requirement”. It then called for consultations (as opposed to negotiations) and threatened dismissal.

The Supreme Court of Appeal found in favour of Fry’s Metals. Numsa took this important case to the Constitutional Court and lost it here as well. It fears that many employers will now use the loophole created by this judgment to bypass genuine negotiations.