Can an employer abandon a part-heard disciplinary hearing and terminate the employment contact due to things the employee said at the hearing? This is the question that faced the Labour Court in an urgent application in which a employee sought to have the National Heritage Council’s termination of employment for repudiation set aside.
The employer had suspended and charged the employee with allegations of misconduct. During the hearing, the employee accused the employer of being on a witch-hunt; keeping documentation away from her and acting in bad faith when it amended the charges.
The employer subsequently wrote to the employee and stated that these allegations are baseless and amount to a repudiation of the employment contract by the employee. It terminated the contract based on the alleged repudiation.
The Labour Court accepted that the employer’s disciplinary code was incorporated into the employment contract. It found that the employer had breached that contract by abandoning the disciplinary process, ordering as follows:
Considering the above, I am satisfied that the Council was in all likelihood tired of the length of time the inquiry was taking and decided to try another way of obtaining the result it sought, which would make it unnecessary to complete the inquiry. However, it could not escape the fact that ultimately the new reasons it advanced for the applicant’s dismissal, still concerned alleged misconduct on her part and it was bound to submit those to the tribunal it had established under the chairmanship of the fourth respondent and argue her dismissal in that forum, or alternatively, before another tribunal established under its disciplinary procedures. Those procedures were incorporated in the applicant’s contract of employment and, apart from remedies relating to unfair disciplinary action, she was entitled to approach the Court on the basis that her dismissal, in the absence of the procedures being followed, was a fundamental breach of her contract of employment and to seek contractual remedies for that breach.
It ordered that the termination of the employee’s employment was a fundamental breach of contract of employment, and that the dismissal was unlawful.
A full copy of the judgment can be viewed here:
J 742.22. Mahonono v NHC and others (urgent) Lagrange J (18.07.2022) – AMENDED
