When you could be courting disaster..

Ivan Israelstam

The Labour Relations Act (LRA) provides that "every employee has the right not to be unfairly dismissed; and not to be subjected to unfair labour practice". Section 188 of the LRA deems a dismissal to be unfair if the employer fails to prove that the reason for the dismissal is a fair reason; and that the dismissal was effected in accordance with a fair procedure. This section explains neither what is meant by " 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 if a misconduct dismissal was fair must, among other things, determine 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.
  
  What constitutes fair procedure is more complex. In this regard the code 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. Section 191 (1) (a) of the LRA provides that, should the employee believe his/her dismissal to be unfair, he/she may refer the dispute to the CCMA or bargaining council (if there is one in the relevant industry).
  
  This has been the dispute procedure followed since 1996 when the LRA came into effect. However, a dismissed employee has now found a shortcut that bypasses the CCMA, bargaining councils and the Labour Court.
  
  In the case of Feinberg v African Bank Limited and Another (2004 10 BLLR 1039 T) the High Court decided that it did have the jurisdiction to review the decision of a disciplinary hearing chairperson. While the court's reasoning for this startling decision appears to be most unclear it seems, in part, to stem from the fact that the Labour Court lacks jurisdiction to conduct such a review.
  
  While this is true, it is the CCMA and bargaining councils that have this jurisdiction. That is, it is a well known fact that the LRA gives the CCMA and bargaining councils the jurisdiction to deal with unfair dismissal disputes and does not give such jurisdiction to the High Court.
  
  Thus, in having heard this case the High Court has made the processes of CCMA conciliation and arbitration redundant. This is despite the fact that one of the key purposes and intentions of the LRA is to resolve labour disputes via these CCMA processes.
  
  In the Feinberg case the court found 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 they have to ensure that their hearings are set up by and chaired by labour law experts and that if they fail to apply the law applicable to disciplinary hearings they could be taken straight to the High Court.
  
   
• Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .