Unfair Dismissal and Unfair Labour Practice is dealt with in Chapter VIII, specifically Section 185 of the Labour Relations Act 66.
Dismissal is referred to as an employer who has terminated a contract of employment with or without notice.
An employer may fairly dismiss an employee for ;
- the misconduct of an employee;
- the capacity of an employee; and
- the operational requirements of an employer’s business.
MISCONDUCT OF AN EMPLOYEE
Every employer is required to have workplace policies and procedures that comply with the Labour Relations Act. Employers must ensure that these policies and procedures are lawful and every employee is aware of them as well as ensuring that the policies and procedures are applied equally across the employer.
An employer may dismiss an employee if the employee has contravened a workplace policy or procedure provided the correct disciplinary procedure is followed.
CAPACITY OF AN EMPLOYEE
For a dismissal to be regarded as fair under “capacity of an employee” there must be evidence indicating the following:
- POOR WORK PERFORMANCE
This means an employee failed to meet a certain performance standard as prescribed by the employer. In order for poor work performance to constitute a ground for fair dismissal the employee must have been aware/could reasonably be expected to have been aware of the performance standard.
An employer needs to ensure that the employee was given a fair opportunity to meet the required performance standard.
An employer may dismiss an employee if the employee is incapable of performing the work; provided that the employee cannot be reasonably accommodated and there is no availability of any suitable alternative work.
An employer may dismiss an employee if the employee is disabled and unable to meet the inherent job requirements and cannot be reasonably accommodated in the workplace.
When an employer finds itself in financial strain it may consider restructuring the organisation by retrenching employees based on its economic, technological, structural, or similar needs.
CORRECT DISMISSAL PROCEDURE
While the three above reasons for dismissal form the basis of “substantive fairness” even if an employer dismisses an employee for fair reason, if it fails to follow the correct procedure, the dismissal will still be deemed to be unfair.
THE GENERAL PROCEDURE FOR MISCONDUCT RELATED DISMISSALS IS:
- An investigation must take place to determine whether there is proof of the suspected misconduct,
- Clear charges in respect of the suspected misconduct must be provided to the employee to ensure the employee has sufficient information to prepare for any disciplinary hearing,
- Reasonable notice of the disciplinary hearing must be given. Notice may be given orally or in writing, usually 48 hours before the disciplinary hearing. 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,
- An impartial third person should chair the disciplinary procedure and allow the employee an opportunity to respond to the suspected misconduct at the disciplinary hearing and to lead evidence. The chairperson must first consider the evidence of both the employer and the employee before deciding whether the employee is guilty or not of the suspected misconduct,
- Once the chairperson has made his/her finding of guilty or otherwise the employee must be provided with an opportunity to give mitigating factors in response to the employer’s evidence in aggravation. 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 chairperson will then provide both the employer and employee with the sanction, preferably in writing.
WHEN TO USE DISCIPLINARY ACTION
Disciplinary action can take several forms, depending on the seriousness of the offence and whether the employee has breached the particular policy or procedure before. The following forms of discipline can be used (in order of severity):
- Verbal warning;
- Written warning;
- Final written warning;
- Suspension without pay (for a limited period);
- Demotion, as an alternative to dismissal only; or
The employer should establish how serious an offence is, with reference to the disciplinary policy or procedure. If the offence is not very serious, informal disciplinary action can be taken by giving an employee a verbal warning. The law does not specify that employees should receive any specific number of warnings, for example, three verbal warnings or written warnings, and dismissal could follow as a first offence in the case of serious misconduct.
Formal disciplinary steps would include written warnings and the other forms of discipline listed above. A final written warning could be given in cases where the contravention of the rule is serious or where the employee has received warnings for the same offence before. An employee can appeal against a final return warning and the employer can hold an enquiry if the employer believes that it is only through hearing evidence that the outcome can be determined.
Written warnings will remain valid for 3 to 6 months. Final written warnings will remain valid for 12 months. A warning for one type of contravention is not applicable to another type of offence. In other words, a first written warning for late coming could not lead to a second written warning for insubordination.
Employees will be requested to sign warning letters and will be given an opportunity to state their objections, should there be any. Should an employee refuse to sign a warning letter, this does not make the warning invalid. A witness will be requested to sign the warning, stating that the employee reused acceptance of the warning.
Dismissal is reserved for the most serious offences and will be preceded by a fair disciplinary enquiry, unless an exceptional circumstance results in a disciplinary enquiry becoming either an impossibility (e.g., the employee absconded and never returned) or undesirable (e.g., holding an enquiry will endanger life or property).
The below constitute Unfair Dismissal;
An employer cannot dismiss an employee for:
- a contract worker whose fixed-term contract is suddenly ended or renewed on less favourable terms, where the worker expected the contract to be renewed because it has often been renewed before,
- an employee who was forced to walk out or resign because the employer made the working environment impossible to tolerate,
- a woman who is not taken back into her job after her maternity leave,
- an employee terminates their contract because the employer has transferred the contract to another employer on conditions which are substantially less favourable.
AUTOMATICALLY UNFAIR DISMISSAL
The following constitute automatically unfair dismissal by an employer when:
- An employee exercising any of the rights given by the LRA or participating in proceedings in terms of the Act,
- And employee taking part in lawful union activities,
- Any employee taking part in a legal strike or other industrial action or protest action,
- Any employee refusing to do the work of someone who was on strike,
- Any employee being pregnant, or any reason related to pregnancy,
- Any employee refusing to accept a change in working conditions,
- For reasons that are due to arbitrary discrimination (except that an employer may retire someone who has reached the normal or agreed retirement age, or if the reason is based on an inherent requirement of the job, for example being able to speak a certain language in order to do the job properly),
- Any reasons related to a transfer following a merger of the employer with another organisation,
- Where the employee is dismissed following a disclosure made by him in terms of the “Disclosure of Information Act”.