Thursday, September 24, 2020

High Court Judge compares dismissal from work to death sentence

A dismissal from work is equivalent to a death sentence, treating striking employees as an undifferentiated mass could lead to grave injustice; this was said by High Court judge Key Dingake this week as he ordered back to work scores of public sector workers who were fired for defying a court order directing them to report for duty.

Dingake said that dismissing striking workers without a hearing especially where provided for by the statute could lead to serious injustice.

The judge said that a wholesale dismissal of employees taking part in an illegal strike is not what the Trade Disputes Act contemplated.

Dingake said that while government had issued an ultimatum urging the employees to return to work, government’s ultimatum could not replace a hearing. He said that there was no evidence that the ultimatum reached all the fired union members.

The judge added that even if the ultimatum had reached the Union members, the dismissals were unfair because no attempts were made to reach Union officials as well as give the employees time ‘to cool down, reflect and take a rational decision with regard to their continued employment’.
According to the Judge, union officials should have been informed that government was planning to fire Essential service employees for their continued defiance.

“With respect to the argument advanced by the respondent that a disciplinary enquiry or a hearing could not be held where there was a crisis occasioned by the employees embarking on Industrial action, my only comment is that a crisis is inherent in any strike situation.”

Dingake said that although a hearing on an individual basis would have been taxing and not readily practicable, the employees should have been allowed to make representation.

“There is no reason why the applicants’ members, facing in effect a death sentence in the employment context, should not be entitled to make representations before being dismissed. It would have been easy to write a letter to the unions that represented the employees who embarked on the illegal strike to show cause why the employees should not be dismissed,” Dingake said in open court on Thursday.

“There is no evidence to suggest that a hearing even in the form of a letter to the Unions that represented the employees could not be done on account of any violence or rioting,” he stated.
He said the employees were entitled to a hearing.

“It is in my mind probable that some of the dismissed workers may not have participated in the strike, some may have been intimidated to participate, whilst others may have been absent for reasons unrelated to the strike. It is only when the employer has all the facts at its disposal, that he or she can take an informed decision,” the judge stated.

Dingake said that government had failed to demonstrate that the situation that existed prior to the dismissals was one of emergency and that the employees were dismissed in order to save lives or property.

He said that the strike was largely peaceful and there was no evidence to suggest that it was impossible to hold a hearing.

The court said that before dismissing employees, the employer needed to establish if such employees took part in the strike as well as consider other relevant factors that may result in less punishment than dismissal. Dingake said that such could include the nature of the job, length of service and effects of dismissal on an employee’s benefits such as medical aid or pension.

“In my view, the duty to be heard, in this case, was reinforced by the fact that the decision to dismiss the employees affected their livelihoods. It is a decision that should not have been taken hastily,” he stated.

He said without observance of natural justice, the dismissed employees lost their jobs, their dignity and a sense of self esteem.

“Essential service employees such as medical doctors constitute the most valuable professions whose rights must be jealously guarded and protected by this court. They constitute the backbone of our very existence as people,” he said.

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