Getting dismissed is often referred to as “getting fired!” And although the world of Hollywood would have you believe that firing a worker is as simple as yelling the words “YOUR FIRED!” from your corner office. The reality in South Africa is actually quite different.
In fact, dismissing a staff member in South Africa can be quite difficult. South African employees’ are fortunate enough to be protected by the Labour Relations Act, which some say actually gives workers too many rights. Basically, the act states that in order for an employer to dismiss a staff member the dismissal must be substantively and procedurally correct. Not sure what that means? Not to worry we are going to discuss workplace dismissals in detail in this article.
What is a dismissal?
Quite simply a dismissal is when an employer terminates an employment relationship.
An employment relationship begins when a person offers their services at the use and control of another person in exchange for compensation. Compensation would usually be monetary. The terms and conditions of that employment relationship should be contained in a written contract of employment. However, even if a written contract does not exist there will still be an implied contract between the two parties.
As mentioned earlier, a dismissal is when a contract of employment is terminated by the employer. In other words, against the will of the employee. This should not be confused with constructive dismissal which is when an employee would terminate the contract.
The Labour relations act protects all employees in South Africa against unfair dismissal, and basically states that an employer cannot simply fire a staff member without good reason or without following the proper procedure.
So for a dismissal to be fair, it must be;
- Substantively correct: Have a good reason
- Procedurally correct: Follow the correct procedure
When may an employee be dismissed?
According to the LRA an employer may dismiss an employee for any one of the following reasons:
- Misconduct. This would include any unacceptable or improper behaviour. For example, if the employee is guilty of theft, being absent without authorisation, or refusing to obey the employer’s instructions.
- Incapacity. This refers to the employees’ ability to perform their assigned tasks effectively. These reasons are generally referred to as poor work performance.
- Operational requirements. Also called retrenchment, in this situation the employer basically cannot afford the employee any longer.
Let’s discuss these reasons in slightly more detail.
What is misconduct?
Misconduct is unacceptable or improper behaviour of an employee.
It is important to note that not all misconduct will justify a dismissal, and an employer should always take the seriousness of the misconduct into consideration.
To avoid confusion the rules and regulations of a workplace should be put into writing and signed by the employee.
There must be a breakdown of the trust relationship between the employer and the employee in order for a dismissal to be an appropriate sanction.
What is incapacity?
Incapacity is the inability or the incompetence of an employee to do the work that they are employed to do. There are a number of reasons a staff member could fail to meet the required standards.
1) Incapacity as a result of poor performance:
If an employee is not meeting the performance standards of the employer, the following factors must be considered:
- is the employee aware of the performance standards?
- has the employee been given a chance to meet the employer’s performance standard or to improve?
If the employee still under-performs despite the employer giving them a chance, dismissal will be an appropriate sanction.
2) Incapacity as a result of ill health:
This is when the employee’s poor health or injury makes them unable of performing the work they are employed to do.
Once the employer identifies that the employee is suffering from ill health, the following factors must be considered:
- is the poor health permanent or temporary?
- can the needs of the employee with ill health be accommodated in the workplace?
If the employer is able to find an alternative to dismissal they should be encouraged to do so. Alternatives could include solutions such as repositioning the staff member within the company for example.
What are operational requirements?
Operational requirements can take to form of:
- Economic needs: These are directly related to the companies ability to generate an income. As you can imagine this is the leading reason for retrenchment during the Lockdown.
- Technological needs: This occurs where new technology makes a position in the company redundant. It is becoming quite common these days as new technology is developed, and certainly something the world is going to have to address at some stage.
- Structural needs: Companies will sometimes need to restructure to make them more efficient. Often this leads to a number of positions simply not existing within the new company structure.
Find out more about retrenchment in this guide to retrenchments in South Africa
So now that we understand the substantial requirements, let’s have a look at the correct procedure.
What is the procedure leading up to dismissal?
The general procedure for misconduct related dismissals are:
- Conduct an investigation to determine if there is proof of the misconduct.
- Make the charges clear so that the employee has enough information to prepare for the disciplinary hearing.
- Give reasonable notice of the disciplinary hearing. 48 hours is generally regarded as sufficient notice and can be given in writing or orally.
- Provide the employee with a chance to respond to the suspected misconduct at the disciplinary hearing and to present.
- Grant the employee the right of representation at the disciplinary hearing.
If the chairperson decides that the employee is guilty, the chairperson must consider the mitigating and aggravating circumstances before deciding on dismissal or some other sanction.
The procedure for incapacity related dismissals are generally similar to the procedure in misconduct related dismissals, however, it is longer and a counselling process must be adopted. This means that the employee must be involved with the procedure and give his/her input from the investigation stage to the dismissal.
If the employee is absent on the day of the disciplinary hearing, without a valid reason, the chairperson may proceed with the hearing in the employee’s absence;
What remedy does an employee have if they are dismissed unfairly?
As we mentioned, a dismissal must be substantively and procedurally fair. So if an employer fires a staff member for a good reason but does not follow the correct procedure the employee can claim unfair dismissal. Also if the correct procedure was followed but the reason is unfair again the employee can claim unfair dismissal.
If an employee is of the opinion that their dismissal was unfair, the employee must refer a dispute to the CCMA within 30 days from date of dismissal.
If the staff member wins their case they may have the following options:
- Have the employer reinstate them on the same terms and conditions of employment before their dismissal.
- Have the employer re-employ him/her, on new terms and conditions of employment.
- Have the employer pay compensation to them. The employee may be given compensation, depending on the circumstances, of 12 months or less.
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