Compliance with ‘The Audi Principle’ v ‘Accused Employee’ In Custody – ‘Do Nothing’ or ‘Dismiss the Inmate/Employee’ – ‘On What Grounds’ or ‘Adopt a Wait & See Approach?’
By Johann Scheepers
“The respondent employee had been held for six months on suspicion of having participated in an armed robbery. At that point, the employer lost patience. The HR Manager sent the employee a letter, c/o the police cell, informing him that he had been dismissed…the employee reappeared at the workplace several months after that, the company granted him a ‘post-dismissal hearing’, after which the Labour Court declined to interfere with that ruling on review. The LAC held that dismissal was in the circumstances ‘substantively’ fair. However, the employer was still obliged to give the employee some sort of opportunity to make representations, which it had not done. Nor did the subsequent hearing rectify that oversight. The post-dismissal hearing was nothing more than an attempt to ‘rationalise’ the dismissal…”
[See: Dr John Grogan, ‘Dismissal’ Juta, 2014 ed. 288-289].
On appeal, the Labour Appeal Court ruled the dismissal substantively fair but procedurally unfair and ordered the employer to pay the employee compensation equal to six months’ salary.
[See Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC)].
The LAC’s judgment did not survive a further appeal to the SCA. That court found that, apart from the that, ‘ that, apart from the fact that the LAC had not identified any reviewable irregularity, that court had based its ruling solely on the alleged ‘mischaracterization’ of the dismissal. The arbitrator had reasoned that the employer had given no reason why the employee’s contract had to be terminated after a mere 10 days’ absence.
The employee’s lack of blameworthiness should also have been taken into account. There was also no proof that the employment relationship had been irreparably damaged at that point. The arbitrator would have reached the same conclusion, however, the dismissal had been categorised. The SCA found that the commissioner’s finding that the employee should have been given a chance to make representations before his dismissal [was reasonable].
The Court noted further that, while it will interfere with decisions of the Labour Appeal Court only in exceptional cases, in this case, the LAC had failed to consider the issue before it, thus depriving the employee of his right to have that issue determined on appeal. This constituted a failure so fundamental that interference on further appeal was warranted.
The appeal was upheld.”
[See: NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others [2011] 11 BLLR 1041 (SCA); referred to by Grogan supra at 289].
Introductory comments and observations
The lengthy quotations above from judgments as well as the authoritative publication by the celebrated author Dr John Grogan has been done with justifiable reason and no excuse will follow for the reasons set out hereunder.
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