| Abstract: | The aim of this essay is to show that employers in South Africa are, by common law, obliged to give a hearing to an employee they are thinking of dismissing. Provision is already made for such a right by statute. Public servants are given this right by the Public Service Act 111 of 1984. Employees in commerce and industry also have the right, by courtesy of the labour courts. But these protections are not all-embracing: they do not apply to farm workers, domestic servants and teachers at State-funded institutions, who must look to common law for protection. An analysis of a number of court cases dealing with the right to be heard suggests that courts may impose a duty to hear where one of the following factors is present: the decision to dismiss is unilaterally taken by a person who is in a position of power over another; the decision is of sufficient importance to justify the cost of a hearing; the decision will tend to dispose of an issue; the hearing will tend to produce a better decision; public policy demands the giving of a hearing; and there is nothing in the enabling instrument to support a conclusion to the contrary. The author takes these requirements in turn and examines to what extent the contractual duty to hear before dismissal would either meet or circumvent them. He ends with a short description of remedies for a failure to comply with the duty to hear. Notes, ref. |
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