FOLLOWING DUE PROCESS BEFORE DEDUCTING AMOUNTS FROM SALARY: A REFLECTION ON Ngcangula v Mhlontlo Local Municipality; Nqekeho v Mhlontlo Local Municipality (2022) 43 ILJ 2398 (ECM)

Abstract

Procedural fairness in labour disputes is an important requirement that employers must adhere to if they are to pass court scrutiny. Employers often focus only on the substantive part of labour disputes, oblivious that due process must also be followed. Such a process, which takes centre stage in this note, embraces the right to make representations and is derived from the principles of natural justice. In the absence of an opportunity to make representations, the outcome of such a process is flawed. Such deficiencies are scrutinised in this note with a view to warn and sensitise employers that any flawed process vitiates the outcome of a disciplinary hearing. The requirement that employers follow due process before making an adverse decision against employees, even if they have a prima facie case, is often undermined. South African labour law is grounded in the principles of natural justice to the extent that a wrong procedure or failure to adhere to procedural requirements vitiates any outcome or renders it unfair. This discussion examines the case of Ngcangula v Mhlontlo Local Municipality; Nqekeho v Mhlontlo Local Municipality ((2022) 43 ILJ 2398 (ECM)), which illustrates the implications for employers when they fail to give employees the opportunity to be heard before deducting amounts from their salary.