Common law right to a pre-dismissal hearing

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Common law right to a pre-dismissal hearing

The statutory obligations pertaining to being heard before dismissal

In the preamble to the Labour Relations Act (LRA), which represents law governing labour relations, the following statements are made which have a bearing on the right to a pre-dismissal hearing:

  • That the LRA has to give effect to Section 23 of the Constitution of South Africa, where Section 23(1) guarantees that everyone has a right to fair labour practices.
  • That the LRA has to give effect to the public international law obligations of the RSA relating to labour relations. In this regard the ILO Convention on Termination of Employment No 158/1982 requires the employee to be given the right to defend himself/herself before being dismissed (although not an absolute right). South Africa is a member of the ILO.

Section 185 of the LRA establishes a right not to be unfairly dismissed or to be subjected to unfair labour practices.

The Code of Good Practice: Dismissal, annexed to the LRA, commonly referred to as “Schedule 8”, read in conjunction with Section 188(2) of the LRA (obliging decision makers and adjudicators to take heed of the Codes of Good Practice issued in terms of the LRA) contains the following guidelines in regard to dismissal:

  • Employers and employees are to treat each other with mutual respect (par 1 (3))
  • Dismissals have to be carried out in accordance with fair procedure and for a fair reason (par 2(1))
  • Employees should be notified of the allegations against them and be granted reasonable time to prepare a response to these allegations before a decision is taken to dismiss (par 4(1))

Common law obligation to be heard before dismissal

The Audi Alteram Partem-principle (loosely translated meaning: “To hear the other side” and generally referred to as the “audi”-rule) is a common law rule and a principle of natural justice incorporated into employment law.  The “audi”-rule is well-recognised in our labour law and promotes justice and fairness in the workplace.

In practical terms it obliges any person with the authority to take a decision which could affect the rights and interests of another person, to first hear the case or explanation of the latter, before taking the decision concerned.

Commentators on the judgement of the Supreme Court of Appeal (SCA) in the case: Old Mutual Life Assurance Company SA Ltd v Gumbi argue that the common law only requires of the employer to provide the opportunity to be heard. Should the employee unreasonably decide not to utilise this opportunity, nothing more is required from the employer. What exactly the opportunity to be heard entails (so the commentators argue), does not appear from the judgement itself, and depends on the facts of each case.

My sense is that “to be heard” in consequence of the “audi”-rule would at least presuppose access to adequate information about the subject matter of the hearing (the charge) and adequate time to prepare and present a response before a decision is reached. Part and parcel of the information about the allegations brought against the employee is for the employee to hear the case being presented by or on behalf of the employer before a response from the employee is required.

What do we glean from relevant case law regarding the right to a pre-dismissal hearing?

Old Mutual Life Assurance Company SA Ltd v Gumbi (2007) SCA

This matter concerns the procedural fairness of a dismissal in circumstances where the employee chose not to dispute his dismissal through the statutory mechanisms provided for in the LRA but instead approached the High Court (HC) in order to enforce his right to a pre-dismissal hearing under the common law.

Since the hearing, which culminated in his dismissal, was held in absentia, the employee claimed to have been denied the right to be heard prior to his dismissal.

The HC found that the employee, through not returning to the hearing after an adjournment was granted to recover from a headache, wilfully and voluntarily excluded himself from the hearing (despite having submitted a medical certificate).

This decision of the HC was subsequently challenged before a full bench of the HC where it was found that the employee’s absence from the hearing was not wilfully nor voluntary and that his “unchallenged” medical certificate should not have been rejected.

This brought the matter before the SCA.

The SCA found that the right to a pre-dismissal hearing is well-entrenched in our law and stems from the common law (e.g., the “audi”-rule), statute (the LRA) or contract (where the employer and employee opted for certainty and incorporated such right into the contract of employment).

With the harmonising of the common law with the Bill of Rights in the Constitution, as required by Section 39(2) of the Constitution, it is confirmed that the right to a pre-dismissal hearing is protected under the common law through the development of the latter.

Turning back to the Gumbi-case, the SCA found that the medical certificate produced by the employee lacked evidential value as it did not contain an independent medical diagnosis of the employee’s ailment. This finding of the SCA led to the rejection of the employee’s explanation for not attending the hearing.

My personal observation is that the phraseology “as I am informed”, used by the doctor, indicates that the doctor basically saw a relatively healthy person, who related to the doctor (subjectively so) what symptoms were experienced, on the strength of which the doctor issued the certificate.

The SCA held that no procedural unfairness was found in the way the employer handled the matter.

Boxer Superstores Mthatha & another v Mbenya (2007) SCA

In this case the employee approached the HC seven months after her dismissal on the basis that her dismissal was unlawful – she did not challenge the fairness of her dismissal under the auspices of the LRA.

She argued that after having been charged, she was not asked to plead, she was put in a position to defend herself, while no evidence was proffered against her, and she was cross examined. On this basis, tacitly being denied a right to be heard prior to dismissal, she contended that her dismissal was unlawful.

The employer challenged the jurisdiction of the HC to have entertained the dispute, arguing that the dispute resorted within the exclusive jurisdiction of the Labour Court (LC). Referring the SCA-case:  United National Public Servants Association of SA v Digomo NO (2005) the SCA pointed out that the exclusive jurisdiction of the LC does not preclude the employee’s recourse to the HC in circumstances such as:

  • To sue for a dismissal that constitutes a breach of contract giving rise to damages; or
  • To sue for damages resulting from a breach of the employer’s disciplinary code where the latter has been made part of the contract of employment between the parties.

The Boxer-case introduced another dimension to the recourse to the HC, namely, to challenge the lawfulness of the dismissal without alleging any loss, apart from salary.

The SCA found that this latter recourse to the HC regarding a seemingly unlawful dismissal, does find application in law.

In consequence of the judgement in the Gumbi-case, where the common law employment contract (having been harmonised with the Bill of Rights in the Constitution) now contains the right to a pre-dismissal hearing. The employee now has a common law contractual claim (over and above any claim based on the statutory unfair labour practice right) to a pre-dismissal hearing. This implies that while contractual rights are recognised in the HC, it is now also recognised in the LC, however the unfair labour practice jurisdiction of the LC does not detract from the HC’s jurisdiction within this context.

The HC’s jurisdiction in the matter at hand was confirmed by the SCA.

Gcaba v Minister of Safety and Security & another (CC) 2010

In this Constitutional Court-case the court remarked in its introduction to the judgement that law (in general) serves to regulate and guide relations in a society. To this end, it provides legal remedies and facilitates access to courts and other fora for dispute resolution.

In this regard courts have over the years grappled with the proper interpretation and application of seemingly overlapping constitutional, administrative and labour law provisions, and principles. This is especially so regarding disputes between employers and employees in the public sector, which is the subject matter of this particular case. In this case the CC endeavoured to provide clarity in this regard.

The employee applied for a particular position, but the employer failed to appoint him, which resulted (as happened in the two other cases mentioned above) in the employee approaching the HC for relief.

The HC dismissed this application on the basis that it lacked jurisdiction to entertain the matter, which eventually brought the matter before the CC.

The reason why I make mention of this particular case (which evidently does not deal with a dismissal and the right to a pre-dismissal hearing) is simply to point out that the CC clearly stated that “forum shopping” by the employee while searching for appropriate relief is not desirable.

The HC and the LC do have concurrent jurisdiction, especially where the constitutionality of conduct (executive or administrative in nature) is challenged and arises from employment and from labour relations.

However, the LC still enjoys exclusive jurisdiction in respect of labour matters requiring its determination and Section 157(1) of the LRA serves to protect this special status of the LC.

Where the subject matter of a dispute falls within the exclusive jurisdiction of the LC (as in this case) an application for relief to the HC will be done at the employee’s peril.

In this particular case, the failure to appoint was not regarded as an administrative action to be adjudicated by the HC, but as a matter which essentially has to do with an alleged violation of the right to fair labour practices, resorting within the domain of the exclusive jurisdiction of the LC.

The appeal against the HC’s decision to dismiss the employee’s application to have his non-appointment reviewed and set aside on the basis of lack of jurisdiction, was dismissed and the HC’s decision endorsed.

In conclusion

The right to a pre-dismissal hearing is well-entrenched in our law, to the extent that it not only manifests in common law, but also in statutory law, as well as potentially within the law of contract where this right has been incorporated into the employment contract.

Given this rather broad spectrum of application within our law, there evidently is room for approaching different fora for relief, as is evident from the court cases mentioned above.

Employees should just be aware that opting not to use the dispute resolution mechanism provided for in the LRA, could potentially deprive the employee of the relief sought, where the subject matter of the dispute resorts within the exclusive jurisdiction of the LC.


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