What happens if an employer cannot prove disciplinary charges against an employee or a group of employees? May the employer then dismiss the employees on the basis of operational requirements? In a recent decision of the Labour Court the employer’s key witness disappeared and the employer took the view that it could no longer prove intimidation and assault on the part of employees during the course of a protected strike. The other witnesses were too scared to give evidence. So instead of pursuing the route of misconduct, the employer dismissed the employees on the basis of operational requirements. The Labour Court found, first, that the employer should have held disciplinary enquiries (because there was sufficient hearsay evidence) and that it was not permissible for the employer to bypass the misconduct route and use the operational requirements dismissal instead.
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