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Accused employee in custody

Compliance with ‘The Audi Principle’ v ‘Accused Employee’ In Custody – ‘Do Nothing’ or ‘Dismiss the Inmate/Employee’ – ‘On What Grounds’ or ‘Adopt a Wait & See Approach?’

By Johann Scheepers


“The respondent employee had been held for six months on suspicion of having participated in an armed robbery. At that point, the employer lost patience. The HR Manager sent the employee a letter, c/o the police cell, informing him that he had been dismissed…the employee reappeared at the workplace several months after that, the company granted him a ‘post-dismissal hearing’, after which the Labour Court declined to interfere with that ruling on review. The LAC held that dismissal was in the circumstances ‘substantively’ fair. However, the employer was still obliged to give the employee some sort of opportunity to make representations, which it had not done. Nor did the subsequent hearing rectify that oversight. The post-dismissal hearing was nothing more than an attempt to ‘rationalise’ the dismissal…”


[See: Dr John Grogan, ‘Dismissal’ Juta, 2014 ed. 288-289].


On appeal, the Labour Appeal Court ruled the dismissal substantively fair but procedurally unfair and ordered the employer to pay the employee compensation equal to six months' salary.


[See Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC)].


The LAC’s judgment did not survive a further appeal to the SCA. That court found that, apart from the that, ‘ that, apart from the fact that the LAC had not identified any reviewable irregularity, that court had based its ruling solely on the alleged ‘mischaracterization’ of the dismissal. The arbitrator had reasoned that the employer had given no reason why the employee’s contract had to be terminated after a mere 10 days’ absence.


The employee’s lack of blameworthiness should also have been taken into account. There was also no proof that the employment relationship had been irreparably damaged at that point. The arbitrator would have reached the same conclusion, however, the dismissal had been categorised. The SCA found that the commissioner’s finding that the employee should have been given a chance to make representations before his dismissal [was reasonable].


The Court noted further that, while it will interfere with decisions of the Labour Appeal Court only in exceptional cases, in this case, the LAC had failed to consider the issue before it, thus depriving the employee of his right to have that issue determined on appeal. This constituted a failure so fundamental that interference on further appeal was warranted.


The appeal was upheld.”


[See: NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others [2011] 11 BLLR 1041 (SCA); referred to by Grogan supra at 289].    


Introductory comments and observations  

The lengthy quotations above from judgments as well as the authoritative publication by the celebrated author Dr John Grogan has been done with justifiable reason and no excuse will follow for the reasons set out hereunder.


The reportedaward, Oberholzer / Central University of Technology, Free State [2017] 6 BALR 678 (CCMA), by V Basholo, Commissioner, should be read and applied within the context of the South African Law of precedence, to wit the doctrine of stare decisis, (which comes from the Latin maxim, stare decisis et non quieta movere) means one stands by (previous) decisions and does not disturb settled points.


HR Hahlo and E Khan in their book ‘The South African Legal System and its Background (Cape Town: Juta (1968) at 244 explain the doctrine of stare decisis as follows:


'In the legal system, the calls of Justice are paramount. The maintenance of the certainty of the law and of equality before it, the satisfaction of legitimate expectation, entail a general duty on judges to follow the legal rulings in previous judicial decisions. The individual litigant would feel unjustly treated if a past ruling applicable to his case were not followed where the material facts were the same. The authority given to past judgments is called the doctrine of precedent .'.


For the reasons set out above, the CUT arbitration award should be read and applied within the peremptory context of the SCA judgment and the reasons as set out in the judgment.


Be that as it may, the CUT award is of importance in that it has been reported and constitutes a well-reasoned arbitration award. For this reason, it has been deemed appropriate to summarise the award for the edification of the reader.


Background Information & Material Facts – [Oberholzer / Central University of Technology, Free State [2017] 6 BALR 678 (CCMA)]:

Editor's Summary: The applicant/employee (the employee), a lecturer, was dismissed after a disciplinary hearing held in his absence while he was in police custody. However, the employee had been invited to make written representations and his legal representative was present during the hearing. The employee was twice invited to present submissions in mitigation.


The employee claimed that his dismissal was procedurally unfair because he was not afforded an opportunity to state his version.


The Commissioner noted that the Code of Good Practice: Dismissal merely requires an employer to conduct a pre-dismissal investigation and afford the accused employee an opportunity to "state a case".


It was common cause that the employee was not in a position to attend the hearing. He was afforded the opportunity to make representations. The employee was an admitted advocate and could have done so. The date on which he would be available to attend a hearing was unknown.


The Commissioner found that the employer, CUT had not acted unfairly by proceeding with the inquiry in the manner in which it had done.


The application was dismissed.


The Arbitration Proceedings

The employee, Advocate Christiaan Mauritz Oberholzer was represented by Advocate S Grobler. The employer was represented by Ms JP Monahadi, an Attorney.


For reasons explained above the parties did not present oral evidence, but agreed to submit heads of argument.


The issue to be decided

Whether a proper procedure was followed when the employee, who was incarcerated, was dismissed. Substantive fairness was not in dispute.


Survey of the evidence

The employee was charged with 8 counts of serious misconduct and his disciplinary hearings were scheduled for 11 March 2016 and 8 April 2016 while he was incarcerated. He was aware of the charges.


They were served on him at his legal representative's address. The parties agreed to postpone the hearing scheduled for 11 March 2016. On 8 April 2016, the employee was absent and his legal representative applied for a postponement which was rejected. His legal representative withdrew as his representative, but he was allowed to sit through the disciplinary proceedings as an observer.


He was found guilty on 7 charges and he was dismissed on 11 May 2016.  The outcome of the hearing was sent to his legal representative by email on 25 April 2016.


Written submissions in respect of the sanction were due on 29 April 2016, but none was received from him or his representative.


The employer complied with item 4(1) of Schedule 8 of the LRA.


He was given an opportunity to present his version. Although the employee was incarcerated, he was given an opportunity to make written representation but he chose not to do so.


A second opportunity to submit written representations was on 8 April 2016 at the disciplinary hearing. Another opportunity to present his version or to argue against the sanction of dismissal was when the employee was served with the outcome of the disciplinary hearing.


His legal representative was allowed to observe the disciplinary proceedings and hear the respondent's evidence. The reasons for his incapacity (incarceration) were intrinsically linked to his employment.


Substantive fairness was not in dispute.


The period of incarceration/incapacity could not be determined, therefore making it impossible to determine when he would be in a position to attend a disciplinary hearing and/or resume employment.


The employee was employed as a lecturer which is a key position in the delivery of the employer’s core business.


As confirmed in Samancor supra it was not unreasonable to proceed with the disciplinary hearing in the absence of the employee when considering the importance of his position in the framework of the employer’s organisation.


Applicant's case

  • In matters with a severe procedural flaw, dismissals have been held to be substantively unfair.

  • Decisions such as Samancor do allow for the dismissal of incarcerated employees, unable to render service, on the ground of incapacity. This is however it is submitted fundamentally different from dismissal for misconduct. The employee was dismissed for misconduct.

  • He was not charged with absenteeism. He was charged with allegations related to specific incidents of alleged misconduct. The charge sheet itself almost supinely set out the nature of these alleged transgressions, and the substance of the charges was only explained during the disciplinary enquiry. It did not record even a paraphrased version of the evidence the respondent was intent on leading.

  • The employer did not provide a synopsis of what evidence it intends leading, what exactly the charges related to and who would testify in that context for the employer

  • Thus, the employee was left with a holistic statement of misconduct related not to his incarceration per se, but to alleged incidents unrelated to the reason for his "incapacity".

  • The reason for his incarceration was related only to one charge bringing the employer’s name into disrepute.

  • His representative could not defend him in his absence, as he could not get proper instructions as to the charges.

  • He could not have made written representations or submissions related to the charges.

  • How was he to know under those circumstances what the evidence entailed? The employer did not wish to conduct the hearing by means of written representations.

  • Nothing stopped the respondent from adding affidavits to its charges, allowing the applicant to deal with such allegations under oath.

  • As an alternative to dismissal, and if the true reason was related to his temporary absenteeism, the employer could simply have refused to remunerate him and placed him on unpaid leave. The employer knew that he could not defend himself.

  • It moreover is somewhat of a chimaera to suggest that the applicant admits that he was guilty of any charges levelled against him. His criminal proceeding is sub judicae and it would have been daft indeed of him to submit himself to any kind of examination on inter alia that question under such circumstances. This is essentially the reason why substantial issues of the dismissal had not been raised.

  • As a consequence, the employee sought ten months compensation.


The Arbitration Award


Substantive fairness

Substantive fairness was not in dispute.


Procedural fairness

Code of Good Conduct, Schedule 8, Item 4 Fair procedure states that the employer should conduct an investigation, notify the employee of the allegations and that the employee should be allowed the opportunity to state a case in response to the allegations.


In the matter of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);[also reported at [2006] 9 BLLR 833 (LC) Ed], the court held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.


The question is, given the abovementioned whether the respondent had followed a fair procedure in respect of the employee who was incarcerated.


It was common cause that the applicant was incarcerated on 17 November 2015 and could not attend the hearings scheduled for 11 March 2016 and 8 April 2016.


A referral was made to Samancor Tubatse Ferrochrome v MEIBC and others(2010) ILJ 1838 (LAC) [also reported at [2010] 8 BLLR 824 (LAC) Ed], the court found that an employee who was incarcerated was dismissed without a fair procedure, he was merely given a letter of dismissal.


The award:

The Commissioner found that in the case of the employee the employer followed a proper procedure in that:


The employee was afforded an opportunity to make written representation but argued that he did not know under the circumstances what the evidence entailed. It was argued that the employer did not wish to conduct the hearing by means of written representations.


It was further argued that nothing stopped the employer from providing affidavits to its charges, allowing the applicant to deal with such allegations under oath. The employer did not follow such procedure.


The employee was an Advocate and he was represented by an Attorney [sic]. He was facing allegedly serious charges and there was no proof that he communicated in writing to the respondent that, due to his incarceration and him not being able to attend the hearing, he requested the respondent to provide affidavits to the charges, allowing him to respond under oath and that the employer refused.


It was further found that the employer did follow a proper procedure given the chain of events and the circumstances.


It was not submitted that the employee would be available from a specific date to attend the hearing and that the employer was unreasonable and unfair not to wait but proceeded with the hearing.


Therefore, the dismissal of the employee was procedurally fair.


Substantive fairness was not in dispute.


The application was dismissed.



The award is of significant importance in that it deals with the seemingly never-ending fixation with unnecessary formalism insofar as procedural fairness is a requirement for a fair dismissal.


The presiding Commissioner referred to the judgment Avril Elizabeth Home for the Mentally Handicapped v CCMA and others(2006) 27 ILJ 1644 (LC);[also reported at [2006] 9 BLLR 833 (LC) Ed], by Van Niekerk, J which by now could be labelled a locus classicus insofar as the judgment extensively stipulates the procedural requirements of a fair hearing.


Of equal importance is the ratio in the judgment NUM & another v Samancor Ltd (Tubatse Ferrochrome) & others [2011] 11 BLLR 1041 (SCA) where the SCA pronounced on the employer's duties and obligation in the event of a situation where the employee has been arrested and incarcerated over a lengthy period.


In conclusion, the reader hereof is advised to peruse the judgment, Samancor Tubatse Ferrochrome v MEIBC and others(2010) ILJ 1838 (LAC) [also reported at [2010] 8 BLLR 824 (LAC) Ed, that was overturned on appeal in order to be fully aware of the events that led to the matter being pronounced upon by the SCA.


If the reader for some or other reason is very much interested in the historical development of the requirement of procedural fairness in South African Labour Law then he/she is welcome to read the article, "The Deformalisation of Disciplinary Proceedings - Demise of the Criminal Justice Model." Scheepers J, ILJ Vol 33, July 2012 Juta, 1539 – 1760.



Copyright reserved by the writer and SA Labour Guide hereof. No part of this article/guide may be reproduced, without prior written permission of the author and SA Labour Guide.

The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.

The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.




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