Dispensing with pre-dismissal procedures

Abstract

Almost 80 percent of all labour disputes referred to the Commission for Conciliation Mediation and Arbitration and Bargaining Councils are related to unfair dismissal disputes. For a dismissal to be deemed fair, it must be for a fair reason and in accordance with a fair procedure which is also known as substantive and procedural fairness. Situations can however arise where an employer dismisses an employee without following any procedures. Can it ever be justified to dismiss an employee without adhering to the audi alteram partem principle? The answer to this is not very simple. Item 4(4) of schedule 8 makes provision for dispensing with pre-dismissal procedures in exceptional circumstances. These exceptional circumstances are, however, not listed or defined. From the research it would appear that the courts and the CCMA have condoned the dispensing of pre-dismissal procedures under very specific circumstances. The circumstances could include amongst others the following: - When an employee refuses to attend a disciplinary inquiry - When there are threats against the life of any party in the inquiry The main aim of this dissertation was to identify those circumstances where the courts and the CCMA have condoned very specific incidents where no pre-dismissal procedures were followed. It is clear that these circumstances are exceptional and it should serve employees well not to “create” exceptional circumstances and not to act over hastily. One of the most basic universal labour rights of every employee is the right to state a case against the allegations made by the employer. It would ultimately fall on the employer to justify why the pre-dismissal procedure, as contained in Schedule 8 of the Labour Relations Act, has been dispensed with.