The Labour Relations Act (LRA),provides that “every employee has the right not to be-
(a) unfairly dismissed; and
(b) subjected to unfair labour practice.”

Section 188 of the LRA deems a dismissal to be unfair  if the employer fails to prove-
(a) that the reason for the dismissal is a fair reason; and
(b) that the dismissal was effected in accordance with a fair procedure.

This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is. However, fairness guidelines have been codified in Schedule 8 of the LRA. For example, this Code includes a requirement that any person deciding whether a misconduct dismissal was fair must, amongst other things establish whether:

• the dismissal was an appropriate sanction for the contravention of the rule that was contravened by the employee
• a fair procedure was followed before the employee was dismissed.

The law also requires that the employer should:

• Conduct an investigation to determine whether there are grounds for dismissal
• Notify the employee of the allegations
• Afford the employee sufficient time to prepare his/her response to the allegations
• Give the employee a chance to state his/her case
• Allow the employee representation by a trade union shop steward or fellow employee.

In addition, there are other procedural requirements not mentioned in the Code that have been laid down via common law.

In the case of Feinberg vs African Bank Limited and Another (2004 10 BLLR 1039 T) the High Court decided that Feinberg’s dismissal was unfair because:

• Feinberg had, with the full consent of his superiors, committed the act for which he was fired
• The chairperson of the hearing had been biased
• The employee had not been given a proper opportunity to prepare for the hearing.

The above case is a warning to employers that:

• it is the employer that must prove the substantive and procedural fairness of the dismissal
• such proof is only possible if the disciplinary process is properly followed
• they have to ensure that their hearings are set up, prosecuted and chaired either by employees thoroughly trained in discipline and dismissal or by external labour law experts
• if they fail to apply the law applicable to disciplinary hearings they could be taken straight to the High Court.

To book for our LABOUR LAW UPDATE seminar in Durban on 11 September 2015 please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to www.labourlawadvice.co.za.