If you run your own company it may happen that you have a desire, for whatever reason to dismiss an employee. No problem, just tell them to pack their bags and but come back. Sorry, it is not as easy as that. Human rights and all that jazz. Whilst this article is written from the employer point of view, obviously the reverse applies to the employee.
So, you have entered into a contract of employment with your employee. The terms for dismissal are noted in this contract and they are in alignment with the Basic Conditions of Employment Act 75 of 1997. [37] states that,
Notice of termination of employment
37. ( 1 ) Subject to section 38, a contract of employment terminable at the instance of
a party to the contract may be terminated only on notice of not less than—
(a) one week. if the employee has been employed for four weeks or less:
(b) two weeks. if the employee has been employed for more than four weeks but
not more than one year:
(c) four weeks, if the employee—
(i) has been employed for one year or more: or
(ii) is a farm worker or domestic worker who has been employed for more
than four weeks.
In the regulations dated 17 February 2020 [5.3.4] notes that the notice of termination of employment by the employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal under the Labour Relations Act 1995 or any other law. [185] states that every employee has the right not to be unfairly dismissed. The LRA is quite extensive when looking at dismissals but most commentators agree that there are 3 grounds for dismissing an employee, namely:
- misconduct
- incapacity
- operational requirements
Here we are going to look at misconduct. To do this we would like to quote (and acknowle in this regard) www.labourguide.co.za. All their normal disclaimers are noted and brought to your attention. For the sake of this article we have removed reference to unions.
Fair reasons
Employers are encouraged to adopt clear rules of conduct that are known to all workers. Some rules may be so well established or obvious that everyone can be expected to know them, for example that violence at work is not acceptable.
Dismissals for misconduct will only be fair if:
- the worker broke a rule of conduct in the workplace
- the rule was reasonable and necessary
- the worker knew of the rule or should have known of the rule
- the employer applied the rule consistently (there are not other workers who have been allowed to get away with this misconduct)
- it is appropriate to dismiss the worker for this reason, rather than taking disciplinary action or imposing a lesser penalty such as a final warning
For minor mistakes the employer must use informal advice. Corrective or progressive discipline must be used for misconduct. The aim of corrective discipline is to correct the worker and help him or her overcome the problem. Progressive discipline can get stronger every time the worker repeats the misconduct.
Workers should not be dismissed for a first offence, unless it is very serious, such as gross insubordination or dishonesty, intentional damage to the employer’s property, putting others’ safety at risk, or physical assault of a co-worker.
Before deciding to dismiss the worker for misconduct, the employer must consider:
- the worker’s circumstances (for example length of service, previous disciplinary record, personal circumstances)
- the nature of the job
- the circumstances in which the misconduct took place
Fair procedure
Employers must keep records for each worker, which say what offences a worker committed, what disciplinary action was taken, and why the action was taken. If there is repeated misconduct, the employer must give the worker warnings. A final warning for repeated misconduct or serious misconduct must be given in writing.
There must be a fair hearing:
- The worker must know in advance what the charges are against him or her.
- The worker must be given enough time to prepare for a hearing.
- The worker must be present at the hearing and be allowed to state his or her case.
- The worker must be allowed to see documents and cross-examine evidence used against him or her.
- The employer should bring all witnesses against the worker to the hearing. The worker should have a chance to cross-examine witnesses called against him or her.
- The worker should be allowed to call witnesses.
- The worker must be given reasons for any decisions taken.
Sometimes, if the employer has only a very small business she or he will not be expected to meet all these requirements.
What steps can be taken if there is an unfair dismissal?
If a worker thinks that the dismissal was unfair, in other words that the employer didn’t follow fair procedures or there is not a ‘good reason’ for the dismissal, then the worker can try to challenge the dismissal.
If a dismissal is found to be unfair, the worker will be able to get reinstated or re-employed, or get compensation money. Reinstatement means the worker gets the job back as if she or he was never dismissed. Re-employment means the worker gets the job back, but starts like a new worker.
The worker is likely to get compensation if:
- the worker does not want the job back
- the circumstances surrounding the dismissal would make the relationship between worker and employer intolerable
- it is not reasonably practical for the employer to take the worker back
- the dismissal is unfair merely because the employer failed to comply with a fair procedure, but there was a good reason for dismissal
The worker can get up to 12 months’ wages as compensation for an unfair dismissal (procedural or substantive unfairness). Compensation for an unfair labour practice claim is limited to 12 months remuneration. If it was an automatically unfair dismissal the worker could get up to 24 months’ wages as compensation.
Just in this short article you can see the complexities of dismissal, and we have hardly scratched the surface. This twice before making a decision that you may come to regret
Learning about “Without Prejudice”
Sometimes you want to write something, say an offer of settlement of some sort, and it comes back to bit you in the backside. Not pleasant. So how do you avoid such unpleasantries?
“Without prejudice” is a legal term used to indicate that a communication or document is made in an attempt to settle a dispute or negotiate a resolution of a claim or dispute, and that it cannot be used as evidence in court or as an admission of guilt or liability.
“The American Blacks Law Directory, first published in 1891 (American or not every South African home should have one) , notes WITHOUT PREJUDICE. Where an offer or admission is made “without prejudice,” or a motion is denied or a suit dismissed “without prejudice,” it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost except in so far as may be expressly conceded or decided.”
If you are unsure, stick it boldly at the top of your correspondence. What have you got to lose.
