Every employee has to be heard before a decision of dismissal is taken
In the field of employment law, the general rule applies that before any decision is made, the employee must be heard. The Latin phrase, audi alteram partum, means both sides must be heard. When in doubt, it is always better to have a disciplinary hearing or at least a discussion before a decision is made.
There is however an exception to this rule. When, in certain circumstances, a decision is made without affording the other person affected, an opportunity, it normally does not necessarily make the decision invalid if the opportunity is afforded at a later stage
In other words, the employer can cure the deficient hearing through appeal or a new hearing or through a hearing in the first instance. There must be no disregard for the fundamental principles of justice and that it can be corrected.
In certain urgent or emergency situations, a decision can be made, thereafter a disciplinary hearing should be heard to either validate the decision or to reverse it. Obviously, if there is no urgency, the Courts have often said that natural justice has to be observed beforehand.
In an interesting Court Case, Semenya & Others v CCMA, Labour Appeal Court said that the opportunity to state the case after the dismissal was acceptable. Facts of the hearing were pointed out to the employer who then decided to have a proper hearing to revisit the decision. The employee refused such an opportunity and she did so at her own peril.
Although the employee said that this offer was merely lip service, the Court found that an offer of a fair hearing chaired by an independent chairman of the employee’s choice, would not have been rejected. This case has been recorded in many other judgments and although it is a risky set of circumstances, a mistake such as an inadequate hearing or no hearing at all, can be rectified.
Obviously the disciplinary hearing to be held after the decision to dismiss, has to chaired by someone who had nothing to do with the original decision and who was completely independent.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)