A comparative study on dismissal by operation of law in terms of the Public Service Act: South Africa and Namibia

Abstract

The right to fair dismissal in South Africa is prescribed in the Labour Relation Act 66 of 1995 as amended. Employees may only be dismissed on grounds of misconduct, incapacity and operational requirements. The requirements for dismissal of employees based on misconduct and incapacity are further addressed in Schedule 8 to the LRA, the Code of Good Practice: Dismissal. Dismissal for misconduct needs to be fair in terms of both procedure and substance. Procedural fairness generally involves holding a disciplinary hearing before dismissing an employee. In terms of the South African Public Service Act 103 of 1994 as amended, an employee who absents him-/herself from official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month is deemed dismissed by operation of law. Employees dismissed as such by operation of law in terms of the PSA are therefore not afforded the right to appear in the disciplinary hearing as provided for in the LRA. South African courts have dealt with a number of cases relating to dismissal by operation of law in the public service. Some of the employees dismissed were reinstated by the courts. Reasons for reinstatement included failing to meet the jurisdictional requirements before invoking dismissal by operation of law. The research will attempt to clarify the substantive and procedural steps required to render a dismissal by operation of law in terms of the PSA fair in South Africa.