Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The law entitles charged employees to a fair and sufficient opportunity to prepare for the disciplinary hearing. They must also be allowed to testify on their own behalf, bring corroborative evidence and cross-examine the employer’s witnesses.
In addition, employees have the right to use an interpreter, receive representation and have an impartial chairperson preside over the matter. Employers who ignore these rights risk falling off the procedural tightrope and violating the principles of labour law.
Court findings and legal implications
In the case of Madonsela vs the Legal Practice Council (Lex Info, 2 September 2025, Labour Court case number 2025-125891), Madonsela faced charges of fraud, accepting money from legal practitioners and a conflict of interest. The employee delayed the disciplinary hearing several times, costing the employer both time and money.
In response, the Legal Practice Council (LPC) abandoned the hearing and terminated Madonsela’s employment, arguing that she had vexatiously delayed the proceedings. This decision, however, placed the employer on the procedural tightrope once again.
Madonsela approached the Labour Court for relief. The court acknowledged that her delaying tactics showed bad faith. However, it still ruled in her favour.
The court held that the LPC could not lawfully terminate her employment without giving her the opportunity to answer to the new charge of delaying the hearing. In failing to do so, the employer slipped off the procedural tightrope. The court declared the termination void and ruled that the employment contract remained valid and enforceable.
Lessons for employers and decision makers
This case reinforces an important principle in employment law. No matter how gross an employee’s misconduct may appear, the employer cannot lawfully terminate employment without first giving the employee a chance to defend herself.
The decision also highlights how easily employers can lose balance on the procedural tightrope when they neglect due process.
It is troubling that, even thirty years after the inception of this fundamental right, some employers continue to disregard it. This ongoing non-compliance suggests that workplace decision makers still lack a full understanding of their legal obligations. Furthermore, they may not appreciate the serious consequences of ignoring the procedural tightrope that labour law demands they walk carefully.
