Introduction
The principle of audi alteram partem, Latin for “hear the other side,” has long been a cornerstone of administrative and employment justice. Nowhere is this more evident than in the South African labour context, where the principle has been both legislatively codified and judicially reinforced to ensure that employees are afforded a fair opportunity to be heard before adverse decisions, such as dismissals, are taken. The procedural safeguards enshrined in Schedule 8 of the Labour Relations Act 66 of 1995 (LRA), as well as the broader framework of constitutional and common law, place a heavy burden on employers to comply with this doctrine of natural justice. This article examines the scope, exceptions, and judicial interpretation of the audi alteram partem rule in the context of employee dismissals, with a particular emphasis on procedural fairness, case law analysis, and the evolving jurisprudence on the formulation of disciplinary notices.
1. Procedural Fairness and the Audi Alteram Partem Rule in the LRA
Schedule 8 of the LRA, particularly Item 4(1), requires that an employer investigate to determine if there are grounds for dismissal and that the employee be afforded an opportunity to respond to the allegations. This embodies the audi alteram partem rule, which is fundamental to procedural fairness. Section 188(1)(b) of the LRA explicitly states that a dismissal must be procedurally fair, placing the onus squarely on the employer to prove compliance with this requirement in any subsequent dispute resolution forum.
The importance of affording employees a hearing has been entrenched in numerous court decisions. The jurisprudence reflects a consistent insistence that the accused employee must be notified of the charges, afforded time to prepare, and given an opportunity to present their case. This principle not only serves to protect employee rights but also legitimises the employer’s disciplinary processes.
2. Exceptions to the Rule: When May an Employer Dispense with a Hearing?
While the general rule mandates a hearing, Item 4(4) of the LRA’s Code of Good Practice acknowledges that there may be exceptional circumstances where adherence is not feasible. These include:
- Unprocedural strikes resulting in workplace chaos;
- Situations where the employee appears to have absconded and cannot be contacted after reasonable attempts;
- Refusal by the employee to attend the hearing, amounting to a waiver of their right to be heard;
- Non-attendance by the employee without an acceptable excuse.
However, these exceptions are not a carte blanche. Employers are cautioned that each case must be assessed on its unique facts, preferably with expert labour law advice. Even in exceptional situations, an employer must demonstrate diligent attempts to afford the employee an opportunity to be heard; failing which, the dismissal may still be found procedurally unfair.
3. Judicial Guidance: Misuse of Absenteeism and Bad Faith
The misuse of the hearing process by employees, particularly deliberate absenteeism to frustrate proceedings, has been addressed by the courts. A seminal decision in this regard is Old Mutual Life Assurance Co. (Pty) Ltd v Gumbi (2007), where the Supreme Court of Appeal considered the procedural fairness of a dismissal where the employee had failed to attend the hearing. The Court held that although medical certificates had been presented, the circumstances under which they were submitted were questionable, and the employee had used them to wilfully frustrate the process. The Court ruled in favour of the employer, holding that the hearing in absentia was justified.
However, the Court was clear: employers must assess the validity of the excuse, and not automatically dismiss employees who fail to attend. A legitimate reason, such as verified illness, may warrant postponement, whereas spurious or unsupported excuses may justify proceeding without the employee.
4. Comparative Insight: Namibia’s Embrace of Natural Justice
The Namibian legal framework provides a valuable comparative perspective. Article 12 of the Namibian Constitution enshrines the right to a fair trial, while Article 18 provides for fair and reasonable administrative action. In Namibia Food and Allied Workers Union v Novanam Limited, the court found that a dismissal effected without affording the employee a proper hearing was unlawful and ordered reinstatement. Similarly, in Namibia Breweries Limited v Seelenbinder, Henning and Partners, the failure to allow the employee to be heard during an internal investigation was held to violate audi alteram partem, affirming its fundamental role in employment justice.
These decisions highlight the universality of the principle and its integral role in ensuring accountability and legitimacy in employer decision-making.
5. Expanding Procedural Fairness: Hearing Notices and the EOH Abantu Judgment
A further dimension of procedural fairness pertains to the content and accuracy of disciplinary hearing notices. In EOH Abantu (Pty) Ltd v CCMA and Others, the Labour Appeal Court clarified that while charges must be specific enough to inform the employee of the case they must meet, a strict technical approach should be avoided. The court held that it is not necessary for employers to list all possible competent verdicts in the notice, provided that the essence of the charge is understood and the employee suffers no prejudice.
Thus, while it is best practice for hearing notices to be clear, specific, and linked to applicable policies, errors in legal terminology or categorisation will not necessarily render a dismissal procedurally unfair, so long as the employee was able to understand and respond to the allegations meaningfully.
6. Procedural Justice as a Moral Imperative
Beyond legal compliance, the audi alteram partem rule represents a broader ethical commitment to justice and dignity in the workplace. Employers are not only agents of economic productivity but also custodians of fair treatment. By affording employees the opportunity to be heard, even in cases where the outcome may seem predetermined, employers foster a culture of accountability, transparency, and trust.
The rule also protects employers by providing a defensible framework should disciplinary action be challenged. A procedurally fair process mitigates the risk of legal liability and reinforces the legitimacy of managerial authority.
Conclusion
The audi alteram partem rule remains a pillar of procedural fairness in South African labour law. It serves as a vital bulwark against arbitrary and unjust dismissals, ensuring that employees are not condemned unheard. While the law provides narrow exceptions to the requirement for a hearing, these are circumscribed by principles of reasonableness and good faith. Employers must exercise discernment, seek expert advice when in doubt, and above all, uphold the dignity and rights of their employees. In doing so, they do not merely comply with statutory obligations, they affirm the foundational values of justice and fairness upon which South Africa’s democratic labour framework is built.
If you need any assistance or advice regarding labour law, contact an attorney at SchoemanLaw.
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