There is no escaping following a fair procedure in dismissal cases

Solidarity obo Joubert / Armscor, the Armaments Corporation of SA (Soc) Ltd (2014) 23 CCMA 7.1.2 is a classic case that, in normal circumstances, may have warranted retrospective reinstatement. However, in this instance, it would be impractical to reinstate or re-employ.

A senior manager’s services were terminated without a hearing when the employer was informed that his security clearance had been withdrawn by the intelligence division of the SA National

Defence Force (SANDF).

The employee claimed that he had been unfairly dismissed.

The employer acknowledged that it had no idea why the employee had suddenly been deemed a security risk, but claimed that his services had been terminated by operation of law.

Whether a person is an employee, and whether an employee has been dismissed, must be determined on the facts of each case.

The statutory definition of “dismissal”

The employer could have suspended the employee pending the outcome of that process (review). Instead, it chose to immediately terminate the employee’s contract on notice, without giving him a hearing

must be widely construed.

The employee had been employed for 30 years. The letter informing him that his services had been terminated had been formulated in the language of a letter of dismissal.

It is accepted that any act by an employer, that results in the termination of an employee’s services, constitutes a dismissal as contemplated by section 186(1)(a) of the Labour Relations Act (LRA).

In this case, the employer retained a discretion after it received notice that the employee’s security clearance had been withdrawn. The employee had, on the employer’s suggestion, sought “review” of the SANDF decision.

The employer could have suspended the employee pending the outcome of that process.

Instead, it chose to immediately terminate the employee’s contract on notice, without giving him a hearing.

The claim that the contract had terminated “by operation of law” could not relieve the employer of its obligation to comply with the audi alteram partem rule.

The employer had accordingly failed to prove that the dismissal was either for a fair reason or in accordance with a fair procedure.

The employee was awarded compensation equal to nine months’ remuneration.

In my view, nine months is minimal compensation in the circumstances. Be cautious of new CCMA rules which make provision for payment of an arbitration fee where dismissal is procedurally unfair.