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Proper dismissal procedures

(Information taken directly from the CCMA website)

Fair reasons for dismissal

  • The Act recognizes 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.

Misconduct

Disciplinary procedures prior to dismissal

  • It is essential that all employers adopt disciplinary rules and establish the standard of conduct required of their employees. These rules must create certainty and consistency in the application of the discipline. The standards of conduct must be clear and be made available to all employees in a manner that is easily understood.
  • 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' behavior through a system of graduated disciplinary measures such as counseling 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.

Dismissals for 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
    • willful damage to the property of the employer,
    • willful 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.

Fair 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.
  • n exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.

Disciplinary records

  • Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

Dismissals and industrial action

  • Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including-
    • The seriousness of the contravention of this Act;
    • Attempts made to comply with this Act; and
    • Whether or not the strike was in response to unjustified conduct by the employer.
  • Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

Guidelines in cases of dismissal for misconduct

  • Any person who is determining whether a dismissal for misconduct is unfair should consider-
    • whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    • if a rule or standard was contravened, whether or not-
    • the rule was a valid or reasonable rule or standard;
    • the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    • the rule or standard has been consistently applied by the employer; and
    • dismissal was an appropriate sanction for the contravention of the rule or standard.


Incapacity: Poor work performance

  • A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. When appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counseling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee.
  • After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has-
  • given the employee appropriate evaluation, instruction, training, guidance or counseling; and
  • after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
  • The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.
  • In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.

Guidelines in cases of dismissal for poor work performance

Any person determining whether a dismissal for poor work performance is unfair should 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.

Incapacity: Ill health 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 referred to in subsection (1) 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, counseling 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.

Guidelines in cases of dismissal arising from ill health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider-

  • whether or not the employee is capable of performing the work; and
  • if the employee is not capable-
    • the extent to which the employee is able to perform the work;
    • the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

the availability of any suitable alternative work.

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