The Constitutional Court reminded employers in the recent judgement of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (1) that employees must be granted a fair opportunity to be heard and state their case in full, even when the misconduct was of a very serious nature, failing which they may end up paying compensation to a guilty employee.
Except in exceptional circumstances, employees have the right to be heard and present their evidence in full, prior to them being dismissed. This is in line with the Code of Good Practice: Dismissal contained in the Labour Relations Act, 1995 (as amended,) which sets out the basic guidelines that employers must follow prior to dismissing an employee. The employer must also comply with the prescripts contained in its own Disciplinary code, workplace agreement or a collective agreement that it is party to, when instituting disciplinary procedures.
In this particular case the applicant, one Dr. McGregor, was employed by the Department of Health. He was charged with sexual harassment and consequently dismissed following an internal disciplinary inquiry. He was, however, not allowed to present all relevant evidence during said hearing. His internal appeal was dismissed.
Dr. McGregor challenged both the substantive and procedural fairness of his dismissal in the Public Health and Social Development Sectoral Bargaining Council. Even though the arbitrator found him guilty on most of the allegations, he concluded that the dismissal was substantively unfair, because of inconsistent treatment in that Dr. McGregor had been dealt with differently than another employee facing a similar charge. It was also procedurally unfair, because the employee was denied the opportunity to present relevant photographs during the internal hearing. Compensation equivalent to 6 months was awarded. Due to various legal arguments, the matter escalated through both the Labour Court and the Labour Appeal Court, ultimately ending up in the Constitutional Court. Dr. McGregor believed he must be reinstated. The Department of Health did not want to pay compensation to a senior employee who had made himself guilty of gross misconduct.
The Constitutional Court held that “sensitivity and care” are required when the fate of people’s livelihoods is at stake. It reaffirmed, amongst other, the right of an employee to be heard before disciplinary action is taken against them. Dr. McGregor’s dismissal was ruled to be substantively fair, but procedurally unfair. The Court decided to reduce the compensation award from 6 months to 2 months, on the basis that 6 months’ compensation for “minor procedural hiccups in respect of gross misconduct, is entirely too generous and exorbitantly high and at odds with the principles of equity and justice(2)”. The more minor the employer’s deviation from what was procedurally fair, the smaller the potential compensation award. The nature and degree of the deviation from procedural requirements are relevant when determining the monetary value of any compensation awarded. The reason for his dismissal, namely sexual harassment, was also considered when the Court decided to reduce the compensation due to him. Employees who perpetrate sexual harassment do so at their own peril.
A key learning
The judgement is an important reminder that employers must take care to adhere to procedural fairness principles. Even in the case of alleged highly egregious transgressions such as sexual harassment, allow the alleged offender to be heard and heard in full. Once a finding is made that a dismissal is unfair, an arbitrator or court must exercise discretion as to whether to reinstate, re-employ or to award compensation and, in the latter instance, the monetary value thereof.
Avoidable procedural mistakes may prove costly to the employer in the long run.
1 –  42 ILH 1643 (CC) (17 June 2021).
2 – .