Please note that this pertains to South African Labour Relations and Best Practice requirements.
More and more I am getting questions around “when can we dismiss a staff member” or indeed “when should I dismiss a staff member”.
There are a host of reasons for dismissing staff, the question though is whether it will be seen as ‘fair’ or ‘unfair’ dismissal. When faced with a dismissal that is either ‘unfair’ or even borderline ‘unfair’, you can be sure that you might just end up at the CCMA and that brings on a whole different world.
So here are some pointers of what can and cannot be done – please be advised that these are ‘some’ pointers – certainly, not everything will be covered, and always ask advice from a Labour Attorney should you be confused.
There is a ‘Code of Good Practice’ available on the Department of Labour’s website and whilst this deals with some of the key issues around dismissals, specifically those related to an employee’s conduct or their capacity to do a particular function, it remains general. In other words, each case is usually quite unique and there are some instances where the issues of “what took place” are completely outside of what is considered ‘the norm’ in the “Code of Good Practice’. This may include but not be limited to circumstances such as the number of employees and so on and therefore a different approach would be needed to resolve these issues.
For the record, the “Code of Good Practice’ was established as a guideline and it was not intended to be substituted for disciplinary or grievance procedures. These procedures still need to be followed correctly.
For the ‘Code of Good Practice’ to be effective, both employees and employers should treat one another with respect. The spirit of the Code is for both parties to have a ‘win/win’ experience. The employer must be able to operate their business effectively and the employee must be able to work in a safe and efficient environment.
The whole purpose of the ‘Code’ is for employees to be protected against frivolous actions on the part of the employer, however, that said the employer is also entitled to satisfactory work performance as well as acceptable conduct from their employees.
Next week we will look at some of the ‘fair’ and ‘unfair’ reasons for dismissal.