Before you Dismiss, Be sure you are not saying Hello to the CCMA!

2014-11-15 23:48

In South Africa, Schedule 8 of the Labour Relations Act, that is the Code of Good Practice: Dismissal in simple terms tells us that in order for dismissal to be fair, an Employer may dismiss an Employee for a fair reason after following fair procedure. It follows that  dismissal can be found to be unfair if no fair procedure or fair reason is present for such dismissal. What follows hereunder is a brief explanation of what constitutes a fair reason (Substantive Fairness) and a fair procedure (Procedural Fairness) for dismissal. Substantive Unfairness

Schedule 8 tells us that:

Any person who is determining whether a dismissal for misconduct is unfair should consider-

(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the employer; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

In short, an Employer must be able to prove that an Employee is guilty of an offence and that, this specific offence is so serious that it the mitigating factors of the employee do not outweigh its seriousness and thus warrant the Employee's dismissal. South African Labour Legislation is corrective rather than punitive in nature, hence dismissal is only justifiable were the offence is serious in nature. E.g. In a case of theft.   Procedural Fairness

Generally speaking procedural fairness speaks to the Employer notifying the Employee of the Disciplinary Hearing and the procedures followed at the Hearing itself, for example, allowing employee an opportunity to ask the employer's witnesses questions, etc.

Employers are advised to follow the Labour Relations Act, Schedule 8 in relation to the fairness of dismissals.

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