29/01/2016
SUBSTANTIVE AND PROCEDURAL FAIRNESS (SECTION 188 AND ITEM 2 OF SCHEDULE 8 OF THE LABOUR RELATIONS ACT 66 OF 1995)
In terms of section 188 of the Labour Relations Act, dismissal can be fairly justified on three general ground: the conduct of the employee, the capacity of the employee and the operational requirements of the employer. This is a codification of the jurisprudence developed by the labour courts in terms of the unfair labour practice jurisdiction afforded them by the previous Labour Relations Act. In this regard they adopted the approach of the International Labour Organisation, relating to the fairness of dismissals.
In respect of substantive fairness, therefore, a valid reason or ground for the termination of an employee’s employment must always exist. It is not always easy to establish whether there is a valid reason. Various tests have been proposed, but whether a termination is fair will in essence depend on the specific facts of each case and may require a value judgment from the employer, the court or an arbitrator. An issue which gave rise to a good deal of debate was whether a Court or an arbitrator is entitled to “second guess” a managerial decision to terminate employment. To what extent, in other words, should, or an, arbitrator and adjudicators interfere in operational decisions taken by management?
This question was finally resolved by the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC). The prerogative to dismiss, said the Court, lies with the employer, but the determination of the fairness thereof lies with the arbitrator or adjudicator. Suggestions that a commissioner determining an unfair dismissal case ought to defer in some way to the decision of the employer are incorrect. The commissioner must consider all the circumstances, including the importance of the rule that was breached; the reason the employer imposed the sanction and the employee’s submission. Other relevant factors might include the harm caused by the employee’s conduct, whether counselling or training might avoid a repetition thereof, the employee’s length of service and the effect of the dismissal on the employee.
As far as factual disputes are concerned, arbitration proceedings take place de novo before the commissioner, and the fairness of the dismissal must be decided on the evidence before the commissioner.
This might result in the commissioner hearing different evidence from the heard by the chairperson of the enquiry. For example, a witness who might not have been available at the enquiry might well give evidence before the commissioner, or, conversely, a witness who gave evidence at the enquiry may no longer be available. Part of the evidence before the commissioner might then be that the chairperson of the enquiry heard evidence which may no longer be available, but which may have been recorded and may well be admitted by the commissioner, having regard to the rules and principles relating to hearsay evidence.
In order to dismiss substantively fairly, an employer must not only have a valid reason, but must prove such reason. Section 192 of the LRA provides that the employer bears the onus of proving, on a balance of probabilities, that the dismissal was fair, both substantively and procedurally.
The notion of procedural fairness has been incorporated into South African unfair dismissal law, which has been influenced by English Law, the International Labour Organisation and the rules of natural justice derived from administrative law. In simple terms, each of the three grounds for termination (conduct, capacity and operational requirements) requires an allied fair procedure to be followed before dismissal takes place.
A dismissal will therefore be unfair if it is not both substantively and procedurally fair. In addition, it may be unlawful should it not comply with the terms of the conduct of employment, a statute or a collective agreement.
The relation between substantive and procedural fairness has been considered by the Labour Appeal Court, which held as follows in Unitrans Zululand (Pty) Ltd v Cebekhulu [2003] 7 BLLR (LAC), a case which concerned dismissal for operational reasons:
“In relation to a dismissal, procedural fairness relates to the procedure followed in dismissing employee. Substantive fairness relates to the existence of a fair reason to dismiss. In relation to substantive fairness the question is whether or not, on the evidence before the court (or commissioner), and not on the evidence produced during the consultation process, a fair reason to dismiss existed”.
With regard to procedural fairness, the question is not whether a fair procedure was followed in court (or at the arbitration). The question is whether, prior to the dismissal, the employer followed a fair procedure.
The result hereof is, therefore, that, if the evidence placed before the court establishes a fair reason to dismiss, which was present at the time of the dismissal, the dismissal is substantively fair. It does not matter, for purposes of establishing the substantive fairness of the dismissal, that such reason was not the subject of discussion during the consultation process.
Even if this reasoning is correct as far as dismissals for operational reasons are concerned, recent jurisprudence emanating from the Labour Court is to the effect that one cannot apply it to dismissals for misconduct. An employer may not, during arbitration, therefore, seek to justify a dismissal for misconduct for reasons other than those for which employee was dismissed.
Furthermore, in terms of the decision in FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt River [2010] 9 BLLR 903 (LC), an employer cannot dismiss employee's for operational requirements simply because of the difficulties involved in proving misconduct.
Sometimes a dispute exists regarding whether a dismissal has taken place, and it is necessary to resolve this dispute first, as a dispute regarding the fairness of a dismissal can clearly only be resolved once it has been established that the employee has, in fact, been dismissed.
Dismissal generally takes place when an employer terminates the employment of an employee, either with or without notice. Where an employee has voluntarily resigned the Court or arbitrator is not able to intervene as there has been no dismissal. Resignation is a unilateral act and does not require the acceptance of the employer. The Industrial Court, interpreting the very wide definition of an unfair labour practice in place at the time, found that, in certain circumstances, the refusal by an employer to accept a retraction of the resignation by the employee might be unfair. However, the new Labour Relations Act does not include such refusal among its list of unfair labour practices. The current position is, therefore, that an employer does not have to accept an employee's resignation in order for it to take effect, although it must come to the notice of the employer, and will not be effective until it has, and is generally not obliged to accept the retraction by the employee of his or her resignation. It should be noted, however, that the Labour Appeal Court has held, in CEPPWAWU v Glass & Aluminium 2000 CC [2002] 5 BLLR 399 (LAC), that an ill-considered resignation in the heat of the moment does not terminate the contract if the employee has second thoughts soon afterwards. In that case there was a considerable degree of provocation on the part of the employer. In fact, the employee's termination of employment amounted, held the Court, to constructive dismissal in circumstances that amounted to an automatically unfair dismissal.
A constructive dismissal takes place where an employee terminates the employment but this termination was prompted or caused by the conduct of the employer. The fact that the employee terminated his employment as a result of the employer's actions means that the termination was at the initiatives or behest of the employer. In terms of Section 192 of the LRA, the onus is nevertheless on the employee to establish that there was a constructive dismissal and not a resignation. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. Even if it is established that a constructive dismissal has taken place, it does not necessarily mean that the dismissal is unfair. The question of whether the dismissal was unfair is a separate enquiry.
Similarly, the Court or arbitrator will not intervene where a contract terminates as a result of mutual and voluntary agreement between the parties.
In most cases it is clear that there has been a dismissal. There are, however, a number of situations where this is not self-evident.
RICHARD MOKHELE: LL.B
29 JANUARY 2016
