Verhouding tussen outomatiese ontslag en prosedurele billikheid by afwesigheid van die werkplek

Abstract

To what extent should an employee be entitled to a disciplinary hearing in case of automatic termination of a contract due to absenteeism in the workplace? Here the focus is on the relationship between automatic dismissal and procedural fairness in the absence of the workplace. Section 185(1)(a) of the LRA states that no employee may be unfairly dismissed. This means that each worker may only be dismissed in a fair manner that would imply that all prescribed substantive and procedural rules are followed. Section 188(2) of the LRA provides that the employer must follow fair procedure before dismissal occurs. Procedural fairness requires that an employee is entitled to a disciplinary hearing, where the employee has the opportunity to state his or her side of the case. Therefore a disciplinary hearing is part of the procedural fairness process in labour law. The automatic termination of an employment contract without notice may be justified if a serious breach of contract occurred. In terms of procedural fairness the employee must get the opportunity to state his or her case in a disciplinary hearing according to section 188(2) of the LRA. In circumstances where an employee's employment contract provides that his or her employment contract would automatically terminate after a number of days of absence (without reason) will not correlate with section 188, which clearly stipulates that fair procedure must be followed. Procedural fairness implies that dismissal must be preceded by a disciplinary hearing at which the employee should be able to state his or her side of the case. This situation is however complicated by circumstances where an employee is seriously ill, hospitalized, in a coma, arrested or public transport to work was declined. In these cases the employee cannot be held responsible for his or her absence. The fact is that the employee should get the opportunity to state his or her side of the case in a disciplinary hearing. The purpose of this research report is to indicate that an employee is entitled to a disciplinary hearing in cases of automatic termination of a contract due to absenteeism in the workplace. The study will be characterized by a literature review of the relevant South African legislation, case law, textbooks, journal articles and electronic materials.