An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts. These rights entail, inter alia: being advised in advance of the allegations; being given adequate time to prepare a response; to participate in a disciplinary hearing or inquiry ‘by responding to the case against them and presenting their version of events’; being represented by a fellow employee or any other suitably qualified person; the right to put questions to persons giving evidence; ‘give evidence/answer the allegations’; call witnesses on their behalf and be provided with the services of an interpreter. The pro forma notice of the disciplinary inquiry repeats the employee’s rights to representation, to give evidence and make representations and accordingly cross-examine witnesses. It also makes provision for the employees to note their objection to the chairperson appointed.
Taking the above into account, if an employer terminates the employment contract without granting the employee the aforesaid rights, what are some of the factors to be taken into account to determine whether or not such dismissal is unlawful?
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The said scenario was considered by the labour court in Mahonono v National Heritage Council and Others (2022) 33 SALLR 162 (LC); (2022) 43 ILJ 2335 (LC), where the labour court, per Lagrange J indicated, inter alia, the following:
- the employer’s disciplinary code was incorporated into the employee’s contract of employment, thus creating contractual rights for both the employer and the employee to be considered when determining whether or not the dismissal is lawful or unlawful
- in casu, the employer was unable to identify any provision in the aforesaid contractual environment indicating that, in certain circumstances, a formal disciplinary enquiry was not required (Lefatola and Another v City of Johannesburg and Another [2018] ZALCJHB 445 (6 June 2018)
- if the employer dismisses the employee in breach of the aforesaid contractual rights, it will constitute a fundamental breach of contract, entailing the dismissal to be unlawful
- the employee would be entitled to the remedy of specific performance (the equivalent of reinstatement in the fairness environment) if it is equitable in all circumstances (National Union of Textile Workers and Others v Stag Packings (Pty) Ltd and Another 1982 (4) SA 151 (T))
- An important relevant factor to be taken into account to determine whether or not specific performance is the appropriate remedy is whether or not the employee is prepared to continue with the required enquiry if the status quo ante is restored.
