Semenya and Others v Commission for Conciliation Mediation and Arbitarion and Others (JA26/2003) [2006] ZALAC 2; [2006] 6 BLLR 521 (LAC); (2006) 27 ILJ 1627 (LAC) (23 March 2006)

Semenya and Others v Commission for Conciliation Mediation and Arbitarion and Others (JA26/2003) [2006] ZALAC 2; [2006] 6 BLLR 521 (LAC); (2006) 27 ILJ 1627 (LAC) (23 March 2006)

The Labour Appeal Court held that the appellants' offer to the third respondent of a disciplinary hearing chaired by an independent person of her choice, even though made after the decision to dismiss, was as fair as, or fairer than, the opportunity she was entitled to before dismissal. The audi alteram partem rule does not require that the opportunity to be heard must always precede the decision; it may be satisfied by a sufficiently fair hearing offered afterwards, especially where the decision-maker is independent and can make a fresh decision. The third respondent's rejection of this offer meant she could not later complain of procedural unfairness. Both the commissioner and the...

Citation
[2006] ZALAC 2
Parties
Appellant: I.A.M Semenya SC; Appellant: I. V Maleka; Appellant: L. T Sibeko; Appellant: L. J. Bokaba; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Tshila Monyai NO; Respondent: H. N Hlatswayo; Respondent: Third Respondent (unnamed, former employee)
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
23 March 2006
Case Number
JA26/2003
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Dismissing Review Application; Appeal Granted by Petition to Judge President
Outcome
Appeal upheld; arbitration award and Labour Court order set aside; costs ordered against third respondent.
Judges
Zondo JP, Davis AJA, Nkabinde AJA
Legal Topics
Procedural Fairness, Audi Alteram Partem, Disciplinary Hearing, Unfair Dismissal, Code of Good Practice Dismissal
Labour Law Civil Procedure Procedural Fairness Audi Alteram Partem Disciplinary Hearing Unfair Dismissal Code of Good Practice Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

I.A.M Semenya SC

Appellant

I. V Maleka

Appellant

L. T Sibeko

Appellant

L. J. Bokaba

Appellant

Commission for Conciliation, Mediation and Arbitration

Respondent

Tshila Monyai NO

Respondent

H. N Hlatswayo

Respondent

Third Respondent (unnamed, former employee)

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Dismissing Review Application; Appeal Granted by Petition to Judge President

Legal Issues

  1. 1 Whether the appellants' dismissal of the third respondent was procedurally unfair.
  2. 2 Whether offering a disciplinary hearing after the decision to dismiss can cure procedural defects.
  3. 3 Whether the audi alteram partem rule was satisfied in the circumstances.

Ratio Decidendi

The Labour Appeal Court held that the appellants' offer to the third respondent of a disciplinary hearing chaired by an independent person of her choice, even though made after the decision to dismiss, was as fair as, or fairer than, the opportunity she was entitled to before dismissal. The audi alteram partem rule does not require that the opportunity to be heard must always precede the decision; it may be satisfied by a sufficiently fair hearing offered afterwards, especially where the decision-maker is independent and can make a fresh decision. The third respondent's rejection of this offer meant she could not later complain of procedural unfairness. Both the commissioner and the...

Court Disposition

Appeal upheld; arbitration award and Labour Court order set aside; costs ordered against third respondent.

Orders

  • The appeal is upheld.
  • Each party is to pay its own costs in regard to the appeal.