Can I be dismissed without a disciplinary hearing?

You are correct. In terms of our labour legislation, an employer cannot just dismiss you without a fair disciplinary hearing. Firstly, the employer should conduct an investigation into the allegations against the employee.

Once it has been established that there is a case for the employee to answer to, the employee must be informed of the allegations against him/her and invited to present his/her side of the story in response to the allegations. At the disciplinary hearing, an independent chairperson must be appointed by the employer with the role to direct the hearing process to ensure both parties have an opportunity to present their case, and make a finding on whether the employer has proven that the employee is guilty of the alleged misconduct, as well as the disciplinary sanction to be applied.

If this process has not been followed, and provided there are no exceptional circumstances to justify dispensing with a hearing, you have the right to challenge the dismissal for procedural unfairness and that you were deprived of an opportunity to defend yourself.

The bottom line is that our labour law requires every dismissal to be procedurally and substantively fair and you must therefore have an opportunity to respond to the allegations against you and the allegations must be proven by the employer.

If this was not the case, you may challenge your dismissal at the CCMA or the Bargaining Council. It may also be prudent to obtain the assistance of a labour specialist to assist you with the referral, should you decide to continue to challenge your dismissal.

Richard Jardine is an attorney with Drake Flemmer & Orsmond Attorneys. He can be contacted on (043) 722-4210.