Deemed dismissal in the public sector : is it the end to procedural and substantive fairness

Abstract

South African labour law is governed by the Labour Relations Act 66 of 1995 (LRA) as amended. Section 185 of the LRA provides a right to all employees not to be dismissed unfairly. The LRA in section 188 recognises three grounds for dismissal namely the employee’s conduct, capacity and the employer’s operational requirements. For a dismissal to be fair, it has to be both procedurally and substantively fair. Procedural fairness entails that an employee is allowed to be heard in a disciplinary enquiry and substantive fairness means that an employee is dismissed for a fair reason. The Employment of Educators Act 76 of 1998 as amended (EEA), the Public Service Act 103 of 1994 as amended (PSA) and The South African Police Service Act 68 of 1995 (SAPS Act) are legislations applicable to public service. These legislations introduced the so-called deemed dismissal or dismissal by operation of law where an employee is dismissed without being heard. In terms of these Acts, dismissal is by operation of law and not dismissal as expounded by section 186 of the LRA. The deeming provision has some semblance to procedural fairness in that an educator or an officer is given an opportunity after being deemed dismissed for being absent without authorisation to make a written submission to explain his or her absence by showing good cause. But a police officer is deemed dismissed if he or she is convicted of a crime and sentenced to direct imprisonment without the option of paying a fine. The concept of deemed dismissals does not apply to the private sector. The study will investigate whether the provision of deemed dismissals conflicts with the procedural and substantive requirements as expounded in the LRA. In addition, whether the remedies available in the LRA for an employee unfairly dismissed are also available to an employee who has been dismissed by operation of law and if the employer’s refusal to reinstate an employee deemed dismissed amounts to dismissal. The study will conclude by making recommendations to amend the current legislation on dismissal by operation of law.