THE RIGHT TO A PRE-DISMISSAL HEARING IN TERMS OF THE COMMON LAW: ARE THE CIVIL COURTS MISDIRECTED?

Abstract

This article explores the overlap between the unlawful termination of a contract of employment and the unfair dismissal of an employee. The Supreme Court of Appeal has in a sequence of cases developed the common-law contract of employment to include the implied right to a pre-dismissal hearing. Owing to the fact that labour legislation already regulates unfair dismissal law, this in effect creates a dual system of dispute resolution in relation to the termination of contracts of employment. The focus of this contribution is on the factors that allure dismissed employees to the civil courts and it highlights the problems that are associated with the overlap of the High Court’s and the Labour Court’s jurisdictions. Future developments are traversed and the Constitutional Court is called upon to bring an end to the development of parallel dispute resolution systems in respect of dismissal disputes.