Avoid the hassle of unfair dismissal disputes being laid against you and follow this guide to ensure that the dismissal is done the right way, the legal way.
*This is not intended to be legal advise and is for information purposes only.
1. Disciplinary Stages
2. Misconduct & Action to be taken guideline
Failure to carry out a lawful and reasonable instruction satisfactorily | Verbal Warning Written Warning Final Written Warning Disciplinary Enquiry |
Refusal to carry out a lawful and reasonable instruction | Final Written Warning Disciplinary Enquiry |
Failure to follow company policies, procedures or statutory requirements | Final Written Warning Disciplinary Enquiry |
Insubordination | Final Written Warning Disciplinary Enquiry |
Gross Insubordination | Dismissal |
Late to Work / Leaving Early / Extending Lunch Breaks | Verbal Warning Written Warning Final Written Warning Disciplinary Enquiry |
Not Reporting wrongful, improper or unlawful conduct | Warning |
Negligence (Cause Damage / pain / loss to a person or company) | Final Written Warning Disciplinary Enquiry |
Bribery, Theft, Fraud, Dishonesty, disclosure or confidential information, false evidence during a disciplinary hearing | Dismissal |
Unauthorised use of company property | Final Written Warning Disciplinary Enquiry |
Wilfill damage to company property | Dismissal |
Misappropriation of company funds / property | Dismissal |
3. Labour Relations Act Code - Fair Reasons for Dismissal
A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty.
Whether or not the procedure is fair is determined by referring to the guidelines set out below.
The Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.
The Act provides that a dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.
In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
4. Disciplinary Procedures
All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.
The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings.
Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline.
Repeated misconduct will warrant warnings, which themselves may be graded according to degrees of severity.
More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal.
Dismissal should be reserved for cases of serious misconduct or repeated offences.
5. Misconduct
Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
6. Dismissal without Warning
7. Fair Dismissal Procedure
Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal.
This does not need to be a formal enquiry.
The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
The employee should be allowed the opportunity to state a case in response to the allegations.
The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee.
After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
8. Poor Work Performance
Consider—
whether or not the employee failed to meet a performance standard; and
if the employee did not meet a required performance standard whether or not—
the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
the employee was given a fair opportunity to meet the required performance standard; and
dismissal was an appropriate sanction for not meeting the required performance standard.
9. Incapacity - Health and/or injury
Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury.
If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.
In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
In the process of the investigation the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
The degree of incapacity is relevant to the fairness of any dismissal.
The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.
Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
Chanel Pereira
23/09/2022
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