What the law says about dismissals

MTN accountant, Brendan Ruth Moshabane leaves the Specialised Crimes Court with her face covered with a scarf. Photo: File, Belinda Pheto.

 

The embattled former MTN accountant, Brendan Ruth Moshabane is embroiled in another legal battle with her former employer – this time for unfair dismissal.

She has subsequently launched a case of unfair dismissal with the Commission for Conciliation, Mediation and Arbitration (CCMA) against her former employer. Moshabane, who is accused of stealing R54 million from MTN, currently also faces charges in a criminal and a civil case.

According to Moshabane’s lawyer, Pierre Smit she was dismissed in absentia. Smit also alleges that his client was not given a fair opportunity to give her side of the story during a disciplinary hearing.

MTN SA, however, maintains that due process was followed in Moshabane’s axing. In a statement, MTN SA said Moshabane was dismissed after a properly convened disciplinary hearing. “Ms Moshabane has now taken the matter to the CCMA and MTN is opposing the relief which she seeks from that body… It would be inappropriate for us, in these circumstances, to comment any further at this stage.”

How are dismissals ordinarily handled? What the law says on dismissals

Jayson Kent of Cowan Harper Attorneys said Schedule 8 of the Labour Relations Act (LRA) provides guidelines for dismissals for reasons related to, amongst others, misconduct.

He said it is important that the employee is notified of the allegations against him/her, and that the allegations are clear and in sufficient detail to allow the employee to properly prepare. The law also stipulates that the employee is entitled to a reasonable time to prepare a response.

“What is reasonable will depend on the complexity of the issues in a particular case. It is common practice to provide an employee with 48 hours’ notice of a disciplinary hearing, but the circumstances peculiar to a given case may require that more notice is given. When an employee has not been given ‘reasonable’ opportunity to prepare, this will usually render their subsequent dismissal procedurally unfair,” Kent explained.

He also said where an employee requires additional time to prepare or has a legitimate reason for being unable to attend a disciplinary enquiry, he or she should approach the employer in this regard at the earliest opportunity to request more time.

If an employee feels that they have not been given sufficient opportunity to prepare, a more prudent approach would be to attend the disciplinary hearing, explain the circumstances to the chairperson, and request a postponement of the hearing. “If this is unreasonably refused, this factor will be considered in a subsequent determination of the fairness of a dismissal.”

Also read:

Alleged MTN fraudster launches bid to have some of her money unfrozen

Former MTN accountant now faces fraud charges of R54 million

  AUTHOR
Belinda Pheto

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