Disposing with pre-dismissal procedures

Section 4(4) of the Code of Good Practice (Schedule 8 of the LRA) provides that:

“In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with the pre-dismissal procedure.”

The Code however does not elaborate on what would be considered exceptional circumstances. Through case law, however, we are able to identify some of the circumstances that have been accepted by the courts in the past. These include:

• Refusal or failure to state a case.
• Failure to attend a disciplinary hearing.
• Crisis-zone cases.

A waiver in law occurs when a person, with full knowledge of a legal right, abandons it. This principle applies where an employee either chooses not to attend a disciplinary hearing, or in such a disciplinary hearing refuses to participate and state his case.

In Mphepya v The South African Weather Service (2010), the employee was dismissed in absentia on charges of gross negligence, dereliction of duties, and breaching procurement policies. The employee had declined to attend his disciplinary hearing because he believed he would be unfairly treated, yet he had presented no evidence or basis for this claim. The chairperson and initiator were both external parties appointed to ensure fairness as the employee was very senior. The commissioner found that the employee had waived his right to be heard by walking out of the hearing. Postponement would have been futile as there was no way of knowing if the employee would ever agree to attend the hearing to state his case. In these circumstances it was found that the employer was entitled to decide the matter without hearing the employee’s side, and there was no procedural unfairness.

It must be confirmed however that an employee’s absence from a hearing is due to the employee’s choice, and not due to circumstances out of the employee’s control. It would be unfair, for instance, to continue a hearing in an employee’s absence where they are too ill to attend or have been detained by the police.

Crisis-zone cases refer to instances where an employer must act immediately to protect life and property. This usually involves a large number of employees involved in serious and continued misconduct such as a wildcat strike. In those circumstances the employer may dismiss immediately without procedure to resolve the immediate crisis.

In Lefu & Others V Western Areas Gold Mining Co Ltd – (1985) 6 ILJ 307 (IC), 205 employees were summarily dismissed without a hearing hours after a riot had been quelled during which nine people were killed and 304 employees had been injured. Production loss and damages to buildings and equipment also amounted to several million rands. The Court held that the circumstances of the case provided an example of exceptional circumstances which allowed for the departure from the general rules of fairness. The company could not reasonably have been expected to provide applicants with an opportunity to state their case prior to dismissal. The Court conceded that dismissing the 205 persons out of a workforce of 14 000 may have eliminated fresh unrest and this approach was justified under the circumstances.

The excuse of a crisis-zone situation will only be accepted by the CCMA in truly exceptional circumstances, and it will always be the onus of the employer to show that such a crisis situation existed. Essentially it must be proven that the employer had no other choice but to dismiss without a process.

Written by LabourNet

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)