“Just how elusive the objects of the LRA remain and how legalism continues to undermine the purpose of the Act is well illustrated by the facts of this case.  The applicant (a former executive director) was dismissed in July 2006.  Far from the brief pre-dismissal procedure envisaged by the Act, the disciplinary enquiry was chaired by a member of the Johannesburg Bar, and both the applicant and respondents were represented by practising lawyers.  The transcript of the disciplinary hearing extends to some 2 240 pages, the bulk of it devoted to technical legal issues”.

This passage is quoted from para [3] of the judgment of Van Niekerk J, on 18 May 2010, in Tshongweni v Ekurhuleni Metropolitan Municipality ; [2010] 10 BLLR 1105 ; (2010) ILJ 3027 ; [2010] JOL 25847 (LC) where it was held that although the procedure was fair the reason allegedly relating to misconduct was unfair and nine months remuneration was awarded as compensation.

Reinstatement was not ordered for very valid reasons advanced by the Labour Court, including the absence of any reasonable expectation of any renewal of the fixed-term contract (see para [19] onwards).

Because the former executive director had turned down an offer of nine months remuneration prior to the commencement of the “trial” before the Labour Court [see Rule 22A(7)] he was deprived of most of his costs and ordered to pay his former employer’s costs of the “trial”.

The services of the executive director were terminated for a reason alleged to relate to his conduct some nine months before the expiry of his fixed-term contract.   An application for the matter to be heard by the Labour Court and not the CCMA was granted [LRA s 191(6)].

Van Niekerk J stated further in para [3] that:

“The application was granted, for reasons that I am unable to fathom.   None of the criteria set out in section 191(6) apply in the present instance, and there is no basis for the ruling made by the director of the CCMA to refer the dispute to this Court for adjudication”.

This is an important judgment because it also confirmed in para [7] that:

“… a dispute that is referred to this Court in terms of section 191(6) must be heard by this Court on the same terms as an arbitrator would, ie the applicant is entitled to a re-hearing on the merits of the allegations of misconduct brought against him”.

After outlining the facts Van Niekerk J confirmed in para [13] that:

“ … an arbitrating commissioner was entitled to have regard to the record of an internal disciplinary hearing and to the evidence of a witness who had been cross-examined at the hearing – the fact that the evidence was hearsay did not render it inadmissible”.

In para [14] Van Niekerk J had the following to say regarding a fair procedure:

“I did not understand Mr Boda to rely on the records of the disciplinary enquiry to establish the substantive fairness of the applicant’s dismissal.   Rather, he relied on it for the more limited purpose of establishing that the applicant was dismissed after a fair procedure.   In this regard, I have already expressed the view that the procedure adopted by the respondent was not consistent with the objectives underlying the LRA.   The statutory requirements for fair procedure are clearly spelled out in the Code of Good Practice: Dismissal, and are elaborated on in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others [2006] 9 BLLR 833 (LC) ….   In so far as the disciplinary enquiry was chaired by an independent advocate and the parties were represented by legal practitioners, the enquiry far exceeded the procedural standard set by the Act.   It is unnecessary to consider, as would a review court, the issues of lack of authority and bias that occupied so much of the proceedings before Adv West.   The standard against which procedural fairness must be determined is that established by the LRA.   To the extent that the record indicates that the applicant was entitled to respond to the allegations made against him and that the respondent took a decision and communicated it to the applicant, the applicant’s dismissal was procedurally fair”.

Van Niekerk J had the following wry comment to make in the same para [14]:

“The existence or otherwise of procedural fairness is determined by whether or not the employer complies with the relevant statutory requirements.   If an employer in its folly chooses to engage an independent counsel to conduct a hearing to a standard that would make a High Court judge proud, it does not follow that the CCMA (or this Court) must act as if it were the Supreme Court of Appeal when determining whether a dismissal was procedurally fair”.