Labour Compass 4 - Fair Dismissal - August 2011
The Labour Relations Act defines dismissal as follows:
- an employer has terminated a contract of employment with or without notice;
- an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
- an employer refused to allow an employee to resume work after she-
- took maternity leave in terms of any law, collective agreement or her contract of employment; or
- was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;
- an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
- an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
- an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.
It is easy to dismiss an employee on the basis of the definition for dismissal as stated above. The challenge is to ensure that the dismissal is a FAIR dismissal.
For any dismissal to be fair it must be proven to be both procedurally fair and substantively fair. If the dismissal is not fair BOTH procedurally and substantively, you are at serious risk. The risk could entail reinstating a dismissed employee with back pay or reemploying a dismissed employee or compensating a dismissed employee.
Let us look briefly at the concept of procedural and substantive fairness.
Procedural fairness relates to the steps of progressive discipline taken against an employee for minor or less serious offences. This entails the process by which you tried to correct the employee's bad behaviour through counselling, verbal warnings, written warnings and a final written warning.
Effectively you need to show that you attempted to get the employee to work according to your rules and standards by corrective disciplinary measures. You need to keep proper record of such counselling sessions, and verbal and written warnings.
Further to this, the actual disciplinary hearing that led the employee's dismissal should also be procedurally fair. This means that you should have notified the employee (preferably) in writing in a form or language that the employee understands of the following:
- The nature of the allegations against the employee
- The employee's rights to, amongst others, state his case, to call witnesses, to an interpreter, the question those making accusations against him, the right to a finding, etc.
In addition to the above, the employee must be given sufficient time to prepare his defence against the allegations. Usually 48 hours is sufficient for this but an extended time may be granted. The disciplinary hearing itself should then be conducted in a manner that fully allows the employee to state his case and challenge the allegations. The chairman should be fair to both parties in the disciplinary hearings.
This relates the reason for the dismissal. Was the employee dismissed in for a fair reason? To determine this, a person deciding whether it is/was fair to dismiss an employee on substantive grounds should consider the following:
- Was there a rule in place?
- Was the employee aware of the rule or could he reasonably be expected to have known the rule?
- Was the rule reasonable and of relevance to the workplace?
- Did the employee break the rule?
- Has the rule been consistently applied?
- Is dismissal the appropriate sanction under the circumstances? (The merits of the case)
The above is a general overview of the elements of a fair dismissal. You ignore these at your own peril. Labour Relations is a specialised field with many technicalities that may influence one case from the next. It is best to always seek advice from a Labour specialist when considering the dismissal of an employee.
Should you have any further queries, kindly contact our office.