Onus overlooked: When procedure fails justice in dismissal disputes

In the recent Labour Court judgment of Solutions Group Events v Naude and Others, the court reviewed and set aside an arbitration award that had granted eight months’ compensation to an employee for what was found to be an unfair dismissal. The central issue was whether the employee had been dismissed or whether her fixed-term contract had simply expired.

This case underscores the importance of correctly applying procedural rules in dismissal disputes, particularly the statutory onus set out in section 192 of the Labour Relations Act (LRA). It also highlights the need for clarity in employment contracts and the risks of misinterpreting probationary arrangements.

Legal implications

Misallocation of the onus of proof under section 192 of the LRA

Section 192 of the LRA provides a clear framework for dismissal disputes:

• The employee must first establish the existence of a dismissal.
• Only once this is proven does the burden shift to the employer to prove that the dismissal was fair.

In this case, the commissioner erroneously ruled that a dismissal had been established merely because the employee alleged it. This was despite the employer’s consistent position that the employment contract was fixed-term and had expired by effluxion of time. The commissioner directed the employer to begin leading evidence on the fairness of the dismissal, before the existence of the dismissal had been proven.

This misallocation of the onus was a gross procedural irregularity. It deprived the employer of a fair hearing and violated the statutory framework. The Labour Court, relying on the precedent set in Pikitup Johannesburg v Muguto and Others, held that the statutory onus under section 192 cannot be circumvented for convenience or expedience. The employee should have led evidence first to prove the dismissal’s existence.

Contractual ambiguity and employment status

Although the contract was titled “Fixed-Term Contract,” it included references to a probationary period and lacked a clearly defined end date. This ambiguity contributed to the employee’s claim that she had a reasonable expectation of continued employment and that the termination constituted a dismissal.

The commissioner accepted the employee’s version without properly resolving the factual dispute. The Labour Court did not make a final determination on the nature of the contract but instead focused on the procedural flaw. The matter was remitted for a fresh arbitration before a different commissioner, who must correctly apply the statutory framework and allow the employee to first prove the existence of a dismissal.

Key takeaways

For employers

• Ensure contractual clarity: Employment contracts must clearly state whether they are fixed-term or permanent and include both start and end dates where applicable.
• Respect procedural fairness: Even in cases of contract expiry, employers should communicate clearly and avoid actions that may create a perception of dismissal.
• Understand the legal framework: The burden of proof only shifts to the employer once the employee has established that a dismissal occurred.

For employees

• Know your burden of proof: In dismissal disputes, you must first prove that a dismissal occurred before the employer is required to justify its fairness.
• Document verbal assurances: If you are told something different from what is written in your contract, keep records and seek clarification.
• Be consistent in your claims: Whether you are alleging unfair dismissal or non-renewal of a fixed-term contract, your case must be coherent and supported by evidence.

For commissioners and legal practitioners

• Apply section 192 correctly: Misallocating the onus of proof undermines the fairness of proceedings and renders awards reviewable.
• Avoid procedural shortcuts: Expedience must never override statutory obligations. A fair trial of the issues requires adherence to legal principles.
• Guide parties appropriately: Where disputes exist over the nature of termination, commissioners must ensure the correct party begins and that the hearing is structured accordingly.

Final thoughts

This case serves as a cautionary tale about the importance of procedural integrity in labour disputes. The Labour Court’s decision reinforces that the statutory onus under section 192 of the LRA is not negotiable. Missteps in applying this framework can have serious consequences, including the invalidation of arbitration awards.

As the matter returns to the CCMA for a fresh hearing, it offers a timely reminder to all stakeholders, employers, employees, and commissioners alike, that fairness begins with following the law.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.