The Importance of Procedural Fairness in Dismissals

By globalbusiness, 26 October, 2017

In the article, What Is Considered To Be ‘Fair’ in a Disciplinary Hearing?, we discussed the conditions necessary for a disciplinary hearing to be considered to be fair. What this means is that to pass muster, a disciplinary hearing must possess the quality of procedural fairness. It must also be substantively fair.

Does Procedural Fairness Only Apply to Disciplinary Hearings?

In labour law, anything to do with dismissals needs to be both procedurally and substantively fair. If the matter does not possess these two characteristics, you – as the employer – run the risk of facing a charge of an unfair labour practice at the Commission for Conciliation, Mediation and Arbitration (CCMA).

The case of Young/The Barnes Group – (2017)26 CCMA 7.1.13 illustrates this point:

  • The applicant was interviewed for a job as a sales person at the respondent’s company.
  • He alleged that he was offered the position that he interviewed for and that he accepted it.
  • This offer was retracted after the managing director of the respondent company changed his mind.
  • The applicant brought an unfair dismissal case against the respondent.

When Does An Employment Contract Come Into Being?

A contract – whether it be a contract of employment or any other contract – has to have a number of qualities in order to be deemed to be a valid contract. There must be an element of offer and acceptance. The terms of the contract must also be agreed upon. For a contract to be valid, it doesn’t have to be in writing. It can be verbal as well.

  • The onus of proving that a valid employment contract had been effected rested with the applicant in this case.
  • He did not lead any evidence to prove his case however, the circumstantial evidence backed up his version:

– The respondent had gone to the expense of flying a number of senior executives from Johannesburg to East London in order to interview the applicant. After the interview, said senior executives had spoken to the applicant telephonically regarding the position. Thus it can be inferred that the decision to hire the applicant was serious.

– The reasons for the decision not to hire the applicant were not solid and insubstantial.

– The applicant was a credible witness, which gave his version of the facts substance.

  • The CCMA Commissioner thus ruled that a valid employment contract had come into place. The applicant was awarded two month’s compensation at the rate which he would have achieved should be have started work.

This case shows how vital it is for you to have employment contracts that stick. Global Business Solutions’ labour law experts will help you draft contracts of employment that will ensure you remain the right side of the law. Click here for more information.



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