DISMISSAL IN ABSENTIA

WORKING ON FIRE (PTY) LTD V MAFISA AND OTHERS (JR2132/20) [2024] ZALCJHB 104 (6 MARCH 2024)
The employee worked as a Regional Manager.
The employee wrote an email that amounted effectively to an open letter addressed to all staff of the employer complaining about the appointment of the Regional Manager. In so doing, he questioned the judgment and integrity of both senior management and the Regional Manager.
Instead of dealing with the matter appropriately, the employer decided to dismiss the employee in absentia without a hearing and without any supporting evidence.
The employee referred the matter to the CCMA. The Commissioner issued an award in which he found that the dismissal was both procedurally and substantively unfair. He ordered the employer to reinstate the employee with full retrospective effect, including back pay.
The employer sought to review and set aside the arbitration award.
The employer later summoned him to a disciplinary hearing, setting out details of the charges against him, including one concerning the writing of the email challenging the authority of senior management.
The employee advised the employer that he was unable to attend this hearing as he had been booked off sick.
Another hearing was duly arranged, and the employer attempted to deliver the notice of the revised hearing to the employee personally but was unable to do so.
The employer by its free admission conceded that it dismissed the employee without a hearing and in his absence.
The first implication was for procedural fairness. The employer should investigate whether there are grounds for dismissal and that it is only in exceptional circumstances if the employer cannot reasonably be expected to comply with these guidelines, that the employer may dispense with a pre-dismissal procedure.
No exceptional circumstances were present in this case and the Commissioner could not be faulted for reasoning that procedural fairness, at a minimum, required that further notice should have been given to the employee.
The dismissal was deemed unfair due to the employer’s violation of the nemo judex in propria causa rule, which mandates an impartial tribunal to hear an affected party. A breach of this rule invalidates the entire proceedings, leading to the proceedings being set aside. The Commissioner’s reasoning was unquestioned in this matter.
It appeared that the Regional Manager was amongst the panel of four people who were involved in deciding on the employee’s fate and dismissal. The Regional manager was the very person whose competency as a manager the employee was said to have challenged.

J Goldberg