Please note that this pertains to South African Labour Relations and Best Practice requirements.
So here we are again – let’s look at what is considered an ‘unfair’ dismissal.
• any dismissal that is not done for a fair reason (like you just don’t like the person) is considered ‘unfair’.
• any dismissal that takes place without the proper and fair procedure, irrespective of whether it is in accordance with any notice period in a contract of employment or in legislation governing employment. So this means that you cannot just come to work one day and decide that George has to go, because he is irritating the hell out of you, so you give him a month’s notice as per his Letter of Appointment and in compliance with legislation – I mean you did give him a month’s notice so what is the problem? Right? Wrong!
Each time you dismiss someone, please understand in order for you to ascertain whether it is fair or not is always determined by the facts of the case and whether dismissal is appropriate or not as a penalty.
I would also like to add in here that it is also determined by precedents that have been set in previous cases. Let me explain. If two years ago one of your employees (let’s call him Philip) was caught stealing say R100.00 out of the till and Philip managed to convince everyone at his disciplinary, that he had ‘borrowed’ the money for taxi fare and that he intended to pay it back the following day and you gave him a ‘Final Written Warning’ in consequence of his actions and now George is caught stealing say R100.00 out of the till and George now also says that he ‘borrowed’ the money for taxi fare and that he intended to pay the money back the next day, but you are fed up with George because his attitude is bad, so you dismiss him – this would be construed as ‘unfair’ dismissal because you did not dismiss Philip for the same offense, two years ago. So be careful when dishing out punishments for first time offences – they may just come back and bite you on the rear end in the future!
You still have to follow the correct procedure and whether the procedure is fair or not is determined by, but not limited to, the following guidelines.
There are three grounds, by which ‘dismissal’ is considered fair and legitimate, by the Act.
• the conduct of the employee (which is why it is of critical importance to have a documented ‘Code of Conduct’ for your Company)
• the capacity of the employee and
• the operational requirements of the employer’s business.
The Act says that a dismissal is automatically unfair if the reason for the dismissal is:
• anything that is an infringement of the basic rights of employees and/or trade unions or
• if the reason is one of those that is listed in section 187.
These reasons include, but are not limited to:
• if the employee participates in a lawful strike
• if the employee intends to become or is pregnant
• any acts of discrimination against the employee.
Where the dismissal is not automatically unfair, the employer has to show that the reason for the dismissal is because the employee’s conduct was in question or that the employee’s capacity was in question or it is based on the employee’s failure to meet the operational requirements of the employer’s business.
If you, as the employer cannot show this or if you cannot prove that the dismissal was performed within the parameters of fair procedure, then the dismissal will be deemed as unfair.
In essence you have to make very sure that you have all your ducks in a row and that you can substantiate and prove anything that needs to be proved in this respect.
Next week we will look at the Disciplinary Procedures prior to dismissal.