BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvice.co.za The drafters of the Labour Relations Act of 1995 (LRA) expressly provided for a right to be heard in the statute. That is, section 188 of the LRA states that a dismissal is unfair if the employer fails to prove that it was effected in accordance with a fair procedure. The Code Of Good Practice: Dismissal in Schedule 8, which must be considered when decisions on dismissal are taken under the Act, makes it clear that, while the process can be informal, the employee should nevertheless be told what case he has to meet and be given a proper opportunity to prepare and present his response.” Important elements of this include:
- The employee’s right to be heard emanates directly from the Constitution of South Africa and is the employee’s primary right
- The employee must be told what case he has to meet
- The employee must be given a proper opportunity to prepare and present his case
- The Code Of Good Practice: Dismissal in the LRA does not require the process at which the employee is heard to be a formal one.
- The right to be informed as to what the charges are – Proof would be a written charge sheet, receipt for which has been signed by the accused employee
- The right to a proper opportunity to prepare – Proof would be a written notice of hearing, given to the employee well in advance of the hearing, receipt for which has been signed by the accused employee well in advance of the hearing date.
- The employee’s right to be heard and to present a defence – proof would be minutes of the hearing showing that the employee had a chance to state his case, use an interpreter and representative, bring witnesses and cross-examine evidence brought against him/her
- The right to be fairly judged – proof would be minutes of the hearing showing that the person was even-handed and treated the accused without bias.