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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article investigating whether affirmative action must be implemented in the retrenchment as well as the appointment process. We also look at two new cases. The first asks whether procedural irregularity can ever be corrected by the employer. The second investigates just how flexible the concept of procedural fairness is.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
When the hearing follows the decision to dismiss
Can an employer ever ‘cure’ the procedural irregularity when it makes a decision to dismiss before a hearing? Normally we would have said no, but the Labour Appeal Court has handed down a fairly radical decision. Consider these facts in Semenya & others v CCMA & others (2006) 27 ILJ 1627 (LAC):
The employee was employed by a group of 4 advocates as a secretary. She was called to a meeting and told that her contract of employment was cancelled. She regarded this as a dismissal and pointed out that no pre-dismissal procedure had been followed. She asked for a week’s postponement to enable her to respond to the allegations against her. The advocates then offered her a disciplinary hearing to be chaired by an independent person of her own choice. She did not accept the offer because she was of the view that she had already been dismissed in an unfair manner.
The CCMA found that the dismissal was for a fair reason but procedurally unfair. Just because the employee had refused the offer of a hearing did not excuse the employers from holding an enquiry. The Labour Court endorsed the Commissioner’s view. The Labour Appeal Court however found that it is not South African law that an opportunity to be heard that is given after the relevant decision has been taken is never good enough. There are circumstances where it is acceptable to have the hearing after a decision has been taken, provided the hearing was fair and a fresh decision could be taken. Because of the offer of a chairperson of her choice, the court did not agree that the employee’s rejection of the offer was understandable because her dismissal was already a fait accompli. The court also rejected the view that there should still have been a disciplinary hearing after she refused to participate. The court was of the view that the employee had been given the choice of chairperson and after she withdrew, the hearing would have had to be conducted by one of the employers. The LAC thus concluded that the dismissal was procedurally fair.
There has been much talk recently about moving away from ‘formalism’ and this judgment illustrates this. While the norm is still that a hearing must precede a decision, this case says that we should be more flexible. This flexibility emerges in the next case as well.
How much deviation from procedure can there be?
Apart from confirming that the application of any test other than ‘the balance of probabilities test’ by the CCMA renders that decision reviewable by the Labour Court, the recent decision in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC) is the clearest statement in a long time that the LRA 1995 does away with a formalistic, ‘criminal justice’ model approach to disciplinary hearings and arbitrations.
The employee was dismissed for being an accomplice to theft. At the CCMA arbitration the employer produced a videotape showing the employee’s complicity in the theft. The commissioner found that the footage was not conclusive in establishing guilt. The commissioner also found that as the chairperson of the hearing was a subordinate of the initiator of the hearing, this gave rise to a perception of bias and that the dismissal was procedurally unfair.
On review to the Labour Court, the court stressed that the test in such matters was ‘on a balance of probability’ but the commissioner had used the test of whether any doubt existed or whether there was any other reasonable inference.
As regards issues of procedural fairness, the Court pointed out that the employee was relying on authorities that pre-dated the present LRA. The Act itself is silent on the content of the right to procedural fairness. The Code is a fundamental departure from the ‘criminal justice’ model developed under the 1956 LRA. The rules introduced in 1995 did not replicate the criminal justice model of procedural fairness. The court concluded that there was no legal basis for the application of the rule against bias that the commissioner had applied. The court said “There is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex ‘charge sheets’, requests for particulars, the application of the rules of evidence, legal arguments, and the like”. The award was reviewed and set aside.
This case provides a clear statement that hearings need not follow the legalistic, formal approach of the criminal law.
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