[7]
Of importance is the fact that by extending the requirement of the audi alteram partem principle to employment relationships, our law promotes justice and fairness at the workplace. In doing so, the law promotes the
primary objects of the LRA, namely, giving effect to South Africa’s obligations as a member state of the ILO and promoting
social justice at the workplace (s 2 of the LRA). In this context fairness must benefit both the employee and the employer. The process
of determining the actual content of fairness in matters such as this involves the balancing of competing and sometimes conflicting
interests of the employee, on the one hand, and the employer on the other. The facts of a particular case determine the weight to
be attached to such interests on each side of the scale. Expressing the view of this court on this topic in National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others 1996 (4) SA 577(A) Smalberger JA said at 589C-D:
‘Fairness comprehends that regard must be had not only to the position and interests of the worker, but also those of the employer,
in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established
facts and circumstances….
And in doing so it must have due and proper regard to the objectives sought to be achieved by the Act. In my view, it would be unwise
and undesirable to lay down, or to attempt to lay down, any universally applicable test for deciding what is fair.’
[8]
The right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to
afford employees the opportunity of being heard before employment is terminated by means of a dismissal. Should the employee fail
to take the opportunity offered, in a case where he or she ought to have, the employer’s decision to dismiss cannot be challenged
on the basis of procedural unfairness (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Others (1991) 12 ILJ 806 (LAC) at 813C-D).
[9]
In the present case Old Mutual had offered the employee a chance to defend himself against the allegations
of misconduct which led to his dismissal. The employee did not take the opportunity. The crucial question is whether his absence
from the hearing was, in the circumstances of this case, justified; or, differently put, whether fairness to both parties demands
that his dismissal be set aside or not. In order to determine this issue a comprehensive summary of the facts is necessary.
[10]
Old Mutual appointed the employee as a sales advisor on 1 February 1995. He was stationed at
its branch in Mthatha and Mr Sandile Ntombela, the sales manager, was his superior. The evidence led at the hearing held on 29 April 2004
reveals that on 5 March 2004, the employee submitted claims for subsistence and travelling expenses which had to be perused
by his superior before payment could be authorised. His superior spotted a discrepancy in the distance allegedly travelled by the
employee from Mthatha to Mqanduli. He then invited the employee to his office to discuss the matter. The latter refused to have any
discussion with him. Later in the day the employee confronted him in his office about why he had not authorised payment of the claim.
When he said he needed some explanation regarding the claim, the employee became aggressive, shouted and threatened him with assault.
[11]
Following this behaviour, charges of misconduct were preferred against the employee. He was notified
of the charges and invited to a disciplinary hearing set down for 31 March 2004. The employee produced a medical certificate
before the enquiry commenced and he failed to attend. He was summarily dismissed following the hearing which proceeded in his absence.
His representative made written representations to Old Mutual for his reinstatement. In the light of the fact that he did not attend
the hearing, apparently due to illness, Old Mutual withdrew the dismissal and reinstated him but with a view to recharging him. He
returned to work on 25 April 2004 and on the next day he was given notice of a disciplinary enquiry to be held on 29 April.
[12]
At the enquiry the employee was represented by Mr Balekile Mbebe, who described himself as a public defender.
From the moment the hearing started, the employee’s representative adopted an aggressive and combative attitude towards the
disciplinary tribunal. He raised spurious objections which were designed to stop the tribunal from proceeding with the hearing. First,
he demanded that the chairman should produce a letter by the employer appointing him to preside over the hearing. When this was overruled
he complained that the employee was given short notice and that he had not been furnished with the information he had requested from
the employer. The information in question included copies of statements by the employer’s witnesses and a document authorising
that the employee be recharged.
[13]
Displaying contempt for the tribunal, Mbebe stated that the hearing could not proceed without him being
furnished with statements. In this regard the oral exchange between him and the chairman went as follows:
‘Mr Mbebe: We don’t continue if there are no statements, we can’t hide information.
Mr Mfaise [the chairman]: I don’t think we can deny witnesses the right to give evidence verbally.
Mr Mbebe: They must give statements and then come verbally. [If] you refuse to give us those statements then I will ask for 10 minutes.
Mr Mbebe: You know why we came here; we said we wanted to go to court, that is real law.
Mr Mbebe: If you call your witnesses then we will just keep quiet and we will take this matter to court.’
[14]
The chairman granted an adjournment for the employee to consult with Mbebe. The employee failed to return
and because of Mbebe’s lateness the hearing resumed half an hour late. He produced a medical certificate the contents of which
I refer to more fully below. It referred to ‘tension headache and enteritis’. Having perused it the chairman adjourned
the hearing further for about an hour to enable the employee time to recover. The chairman had hoped that the hearing could resume
provided that the employee had recovered from the alleged tension headache.
[15]
Mbebe, whose intention was clearly to prevent the hearing, was unimpressed by the chairman’s gesture.
He made it plain that neither he nor the employee would return. At that stage of the proceedings the following oral exchange occurred
between him and the chairman:
‘Mr Mfaise: Welcome back, thank you Mr Mbebe for coming back, according to this medical certificate Mr Gumbi is suffering from tension
headache and I will give you until 14h00 for your client to take headache tablets, so that by 14h00 we may come back, hopefully he
would have recovered as that is an hour from now.
Mr Mbebe: I won’t be coming back as my client is booked off sick, so you may continue without me.
Mr Mfaise: You say we may continue without you?
Mr Mbebe: Yes you may continue.’
[16]
The court below held that the representative’s ‘consent’ that the hearing should continue
in their absence did not constitute waiver of the right to a hearing. I agree. The employee’s conduct as a whole was inconsistent
with waiver. At the moment he challenged the first dismissal, the employee’s complaint was that he had been denied a hearing
and therefore that the dismissal was invalid for that reason alone. In essence what he was saying was that he was denied a chance
to defend himself. However, when Old Mutual offered that opportunity to him, the employee had a complete change of heart which was
evidenced by the following facts. He refused to take the notice for the second hearing; and with the intention of stopping the hearing,
his representative raised spurious objections of all sorts and was guilty of aggressive and contemptuous behaviour towards the tribunal,
threatening it with legal action. All these facts ineluctably lead to the conclusion that the employee wanted to have the hearing
aborted so as to prevent the fulfilment of the condition – a fair disciplinary hearing – upon which dismissal by the
employer was contractually dependent. In our law a contractual condition is deemed to have been fulfilled where a party deliberately
frustrates its fulfilment. By analogy this may also be the position in a statutory setting. In Scott and Another v Poupard and Another 1971 (2) SA 373(A) Holmes JA said at 378G-H:
‘I come now to the issue of fictional fulfilment of the condition upon the occurrence of which the money was to be paid and the shares
to be transferred to Poupard and Lobel, ie to say, the grant of mining rights….
In essence it is an equitable doctrine, based on the rule that a party cannot take advantage of his own default, to the loss or injury
of another. The principle may be stated thus: Where a party to a contract, in breach of his duty, prevents the fulfilment of a condition
upon the happening of which he would become bound in obligation and does so with the intention of frustrating it, the unfulfilled
condition will be deemed to have been fulfilled against him.’
See also South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA) in paras 33-36.
[17]
Returning to the medical certificate, I agree with the finding by Somyalo JP that little evidential
value can be attached to it. It does not reflect an independent medical diagnosis of the illness or an opinion as to the fitness
of the employee to perform his normal work, let alone his fitness to attend a disciplinary hearing. The certificate appears to be
in standard form containing printed and handwritten parts. It reads:
.RTF of original document