Please note that this pertains to South African Labour Relations, the Basic Conditions of Employment Act and Best Practice requirements.
So what does actually constitute a “fair dismissal”?
The CCMA usually looks at two specific aspects of what a fair dismissal is by looking at either whether the dismissal is “substantive” or “procedural”. This means that a commissioner would look at the charges and the evidence and then decide whether the employee was dismissed substantively and procedurally fairly.
Substantively fair would mean “does the punishment fit the crime”? For example, if an employee was dismissed because he reported to work five minutes late for the first time in two years – this would be considered a “substantively unfair” dismissal.
Procedurally fair would mean “were the correct legislative and company procedures followed”? For example, if the employee took money out of the till for taxi fare and was caught and just dismissed there and then, without a formal disciplinary hearing taking place – this would be considered a “procedurally unfair” dismissal.
Also on the table is whether the employer is consistent in the manner in which the discipline is metered out. Gone are the days when some staff can be disciplined and dismissed for a specific transgression and others, committing the same transgression, go unpunished or punished to a lesser degree.
So remember discipline must be the same across every sphere – be it senior management, middle management and right down to the general worker. Being consistent is an absolute must.
Procedural fairness ensures that the manner in which the disciplinary action has taken place together with the compliance of the disciplinary policy within the company is correct and fair.
Many CCMA cases are awarded to the employee, simply because the correct procedures were not followed or enforced. It is therefore in the best interests of the employer to ensure that their policies and procedures are both compliantly correct and procedurally fair.
According to the Labour Relations Act, the consequence of not following procedure and issuing a procedurally unfair dismissal is financial compensation to the employee. The compensation is limited to a maximum of 12 months of the employee’s salary.
The consequence of a “substantive” unfair dismissal is either financial compensation to the employee or the employer will be forced to reinstate the employee. In the instances where the employee is reinstated, the employer will have to also pay the employee from the time that they were dismissed up to, and including, the time that they started working again. Again the compensation (if they remained dismissed) would be limited to a maximum of 12 months of the employee’s salary.
The value of the compensation is governed by the severity of the unfairness of either the procedure or the substantive nature of the employer.
In other words, the less the employer follows the BCEA (Basic Conditions of Employment Act) and the Labour Relations Act, the greater the amount of compensation that will be awarded to the employee.
The high number of cases where the employee is awarded compensation, together with the value of the compensation, evidences that employers are not following the correct procedures and this means that they are then obliged to pay huge fines or penalties.
Losing great sums of money in this manner, in my opinion, is like committing financial suicide.
The bottom line, therefore, is quite simple. Ensure that you have the correct policies and procedures in place. Not only will this ensure that you are in compliance with the law, but it will also remove all the emotion from the workplace and the situation.
Should you require assistance with obtaining templates, procedures or policies at affordable prices, please contact Nikki Viljoen.