It is very difficult to fire a reinstated employee

Do it right the first time to avoid being found guilty of an unfair dismissal

By Ivan Israelstam

It is important for employers in South Africa to understand the following basic points about the country's labour laws:

• Labour law definitely does allow employers to dismiss employees provided, as is explained later in this article, the dismissal is for a fair reason and the proper procedure is followed.
• The CCMA has frequently upheld the dismissal of employees fired for misconduct.

My consultancy has been directly involved in a great many cases where employees have been fired and, after appealing to the CCMA, claiming that the dismissal was unfair, they have, in fact, remained fired.

• It is not the firing of employees that the law has a problem with. It is not dismissals themselves that raise the ire of CCMA arbitrators, leading to reinstatement and compensation.

Instead, it is unfair dismissals that result in the employer being forced to reinstate the employee and/or being forced to pay the employee exorbitant amounts of money in compensation.

• In order to be justified in firing employees who deserve to be dismissed, employers need to understand and accept the difference between a fair dismissal and an unfair dismissal.

This is because if the employer has an employee who is causing mayhem or is costing the employer money, or is threatening the security of the business or is otherwise undesirable, the employer cannot afford for the employee to be reinstated. The main reason for this is that it is exceptionally difficult later to dismiss or discipline an employee who has been reinstated by the CCMA or another tribunal like a Bargaining Council.

So while the law does allow for the dismissal of employees, it also requires that the employer be able to prove that the dismissal was both procedurally and substantively fair. "Procedurally fair" relates to whether the employee was given a fair hearing - that all the steps of the required procedure, as laid down in the act, are complied with in a fair manner.

Whether a dismissal is "substantively fair" relates to the fairness of the dismissal decision itself rather than to the disciplinary procedures. This means that the reasons for the dismissal have to be seen to be fair.

Specifically, for the dismissal to be adjudged to be substantively fair, the employer would have to show that:

• The employee really did break a rule that is clearly laid out in the employer's code of conduct.
• The rule was a fair one.
• The penalty of dismissal was a fitting one in the light of the severity of the offence.
• The employee knew or should have known the rule.

Properly trained CCMA arbitrators consider all the above factors together with the circumstances of each individual case in deciding if a dismissal was fair and whether the employee should stay dismissed or should be reinstated. A case in point is that of White v Pinnacle Point Investments (Pty) ltd (2008, 1 BALR 91).

White took up a post with the employer as CEO. Thereafter, the employer discovered that White was in dispute with his previous employer, which just so happened to be the bank used by the new employer. The new employer then dismissed the employee, claiming that the reason for the dismissal was the employee's refusal to divulge the true reason for the dispute with the old employer. It also claimed that it had failed to hold a disciplinary hearing because of the exceptional circumstances.

The arbitrator decided that:

• There were no exceptional circumstances justifying the failure to hold a hearing.

Believing the outcome to be a fait accompli does not exempt the employer from giving the employee an opportunity to be heard.

• The reason for the dismissal was not that the employee had failed to divulge the true reason for his dispute with the bank.

Instead, the true reason was pressure from the bank on the employer to fire the employee.

• The employer had not held its own investigation into the bank's allegation that the bank's money had found its way into the employee's bank account.
• The dismissal was procedurally and substantively unfair.
• The employer was to compensate the employee for the unfair dismissal.

The outcome of this case shows that employers will lose if they merely take the word of a third party as to the guilt of an employee or if they succumb to pressure from the third party to dismiss the employee.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it
• Our appreciation to Ivan and The Star newspaper for permission to publish this article