Section 188(1) of the Labour Relations Act (No. 66 of 1995) stipulates that a dismissal would be unfair when an employer fails to prove that a fair procedure was followed, or when there is no fair reason for the dismissal. In Schedule 8: item 4 of the Labour Relations Act (no. 66 of 1995), it is also determined that an employee must receive an opportunity to present his or her case and to defend his or her case during disciplinary procedures. If an employee does not receive such an opportunity, the procedure for the dismissal will be unfair.
The common law principle audi alteram partem is applicable here. If one translates this phrase directly from Latin, it means “let the other side be heard”. According to section 192 of the Labour Relations Act (No. 66 of 1995), the burden of proof is on the employee to prove that he or she was dismissed, and the employer must prove that the dismissal was fair. It will thus be the responsibility of the employer to apply the audi alteram partem principle before the dismissal takes place.
In a more recent case of Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union and Others (JA56/2015, JR1676/2012)  ZALAC 80;  3 BLLR 246 (LAC), employees disrupted their disciplinary hearing violently by assaulting the presiding officer. They even attacked the spectators who wanted to record and stop the commotion where after they were immediately dismissed. The employer and employees previously entered into a collective agreement which determined that a hearing must be held before any dismissal is implemented, but the hearing obviously did not take place. The employer simply declared that they were not up to it to organise a hearing under the circumstances. The Labour Appeal Court found that the dismissal was substantially fair, but it was procedurally unfair. The reason for the procedural unfairness was firstly because the employer was in breach of the collective agreement between the two parties, and secondly, the audi alteram partem principle was not applied. Employees had the right to an opportunity to state their case and to defend the complaints against them, but they were not afforded an opportunity to do so. Due to the scandalous behaviour of the employees during the hearing, the Labour Appeal Court ruled that the employees did not qualify for any compensation.
The opportunity to state or defend a case is thus a requirement for any dismissal to be procedurally fair. If this opportunity is not granted, the dismissal will be procedurally unfair according to section 188(1) of the Labour Relations Act (No. 66 of 1995).
When suspicion arises that a dismissal has been procedurally unfair, the case may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a relevant bargaining council.
Author: Dana Grové