is it always necessary to conduct a hearing before dismissal?

What happens if an employee refuses to be subject to a hearing as the decision to dismiss had already been made?
The above-mentioned questions were discussed by Prof. Luther Backer in his article

“Judgment shows code is not cast in stone.”

The Commission for Conciliation Mediation and Arbitration (CCMA) and the Labour Court tend to regard the code of good practice as an inflexible part of the law.  The Labour Appeal Court, however, in the case Semenga & others v. CCMA & others [2006] 6 BLLR 521 (LAC), by way of an interesting decision pointed out the flexibility of the code of good practice.  A personal assistant for a group of advocates was requested to attend a meeting with her employers and was informed that her employment contract would be terminated.  She protested on the grounds that the correct procedure had not been followed and asked that the meeting be postponed.

The employer then offered to appoint a third party of the employee’s choice to serve as chair of the disciplinary hearing.  She declined the offer.  Her contract was therefore terminated without a hearing.  She then referred an unfair dismissal dispute to the CCMA.  Both the CCMA Commissioner and the Labour Court, which reviewed the CCMA’s ruling, were of the opinion that the employer should have arranged a hearing after she declined their offer and that the dismissal was therefore procedurally unfair.

The employer indicated that they could not conduct a hearing in which the employee was no longer interested and stated that their failure to conduct a hearing under such circumstances had not rendered the dismissal procedure unfair.  The employee’s reaction was that the offer of a hearing had come too late because she had already been dismissed.  It was found that the employer had in fact dismissed the employee without a hearing but that she had in a decisive manner declined the employer’s offer to conduct a hearing chaired by an independent person.

The Labour Appeal Court was of the opinion that the rule that a hearing must precede any dismissal was not cast in stone.  When the employee was offered an opportunity to state her case after already having been dismissed, and she declines such offer, it can not be argued that she had not been given an opportunity to be heard.  The opportunity which she had been granted after her dismissal was, however, so fair that it did not really matter that the offer had been extended after the dismissal.   The Court also rejected the employee’s argument that the hearing would have served no purpose because, according to her, the dismissal was already a fait accompli. The reason is that she could have used such hearing to argue against the fairness of her dismissal. Although the employer had made a mistake by deciding to dismiss her without first conducting a hearing, they had remedied the situation by means of their subsequent offer.

The Court therefore found that both the CCMA Commissioner and the Labour Court had incorrectly interpreted the audi alteram partem (right to be heard) rule by not acknowledging that it is not always necessary to conduct a hearing before making a decision to dismiss.
The appeal was rejected with costs.

Our appreciation to Prof Backer for permission to publish this article.
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