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Procedural Correctness and Substantive Fairness in Dismissals

Possibly the most contentious sentence pertaining to the Labour Relations Act is one incorporated in the “Code of Good Practice: Dismissal”, which Code is appended to the aforementioned Act. Concerning a fair procedure which should precede any dismissal for misconduct or incapacity the sentence is:

“ This does not need to be a formal enquiry.” However, any employer who adheres to what I have quoted from the Code; is in for a rude awakening at the CCMA. The CCMA commissioners adopt a very pedantic approach to procedural aspects and often an employer who justifiably dismisses an employee for gross misconduct; will nonetheless find that a commissioner makes an award of several months’ salary as compensation to a dismissed employee for some minute procedural inadequacy on the part of the employer. Therefore contrary to what the aforementioned Code instructs employers, any employer should adopt the stance of “Before I dismiss any employee for misconduct or incapacity, there does need to be a formal enquiry.” Perhaps a reason for this anomaly is that whereas CCMA commissioners were initially skilled and qualified professionals, it appears that legal qualifications are nowadays dispensable.

For example, an outgoing head of the CCMA was quoted in the “Sunday Times” on the 17th July 2005 as saying:
“ We have had to train some commissioners in how to write reports in simple English because most arbitration awards were not up to scratch…. Now, before we appoint a person as a commissioner we first assess them and take them through a 21-day, 6- module training course….”

However, when an employer considers that in terms of Section 194 (1) of the Labour Relations Act, a commissioner is empowered to make a compensation award of “the equivalent of 12 months remuneration” …..if ....“the employer did not prove that the reason for the dismissal was a fair reason relating to the employee's conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure…”

Although an employer can take a CCMA arbitration award on review to the Labour Court this is of little comfort to any employer for besides it being a costly exercise, the employer is not necessarily guaranteed a more professional approach at the Labour Court.

I quote from an article headed “Judicial Candidates Quizzed”, which appeared in the “Business Day” on the 11th October 2001. In this article 2 candidates were mentioned by name but to spare potential embarrassment, I will deliberately desist therefrom. I quote from the “Business Day” report of that date.

“Two candidates were interviewed for positions as judges in the Labour Court: (name given) and (name given). (Name given) who is an acting judge in the Labour Court was questioned closely on his turnaround time for delivering judgements…… (Name given) said he believed muti could stop AK-47 bullets…..”

Under such circumstances employers might wonder whether it is worthwhile to take CCMA cases on review to the Labour Court.

Whereas a 12 month compensation award might be financially tolerable if an employee is a manual labourer, the converse is true if the employee is a chief executive earning R100, 000 per month.

Consequently, in certain contracts of appointment for senior executives and directors, both the employer and the employee agree to bypass the CCMA in such matters and refer any disputed dismissal to private arbitration; meaning that they can jointly agree to whom they choose to judge the merits of their respective cases. In other words, when an arbitration award has huge financial implications, it is worth their while to jointly pay for a skilled professional of their choice.

Then, of course, the other hurdle to be overcome is that of the substantive fairness or sufficiency of cause to warrant a dismissal. Just as beauty is said to be in the eye of the beholder, the same might be said for fairness. Opinions differ on what constitutes sufficient grounds to dismiss an employee. For example, a waiter was dismissed for stealing a can of coca-cola. I refer to the Boschendal Restaurant case: Anglo American Farms t/a Boschendal Restaurant v M Komjwayo (1992) 3 (6) SA LLR 1 (L.A.C.)

In this case the Labour Court found that theft was theft irrespective of the monetary value of the stolen goods because the “trust relationship has been destroyed”.

However, in other similar cases a different verdict might be given because a judge could, for example, state than an employer did not take mitigating or extenuating circumstances into account. For example, a labourer at a sawmill stole a quantity of paraffin, the monetary value of which was far in excess of a can of coke. It was ruled that dismissal was too harsh a sanction because a mitigating factor was the size of his extended family that he had to support. Such cases are a potential minefield for all employers who are consequently advised to obtain proper advice before committing any errors of commission or omission.