Discipline and Dismissal

                    

We receive numbers of enquiries from employers wanting to know what is meant by “substantive  fairness” and how does the Chairperson of a hearing decide that the sanction he has decided upon is “substantively fair.” In short, it can be taken to mean that “the penalty must fit the crime.” Substantive fairness usually comes under scrutiny in cases of dismissal – rarely, if ever, on sanctions of warnings, suspension or demotion. Therefore, the first thing to examine is “on what grounds did the employer decide to dismiss?”

      

Thus we must firstly establish the reason for the dismissal, and secondly decide if that reason was a sufficient reason to justify a dismissal. It follows therefore the Chairperson of the hearing must consider many factors. He is required, for example, to first consider whether a sanction other than dismissal would achieve, or is likely to achieve, the required result. The required result, obviously is that, whatever action is taken, it must ultimately correct the employee’s behaviour. The matter under consideration may be a matter of misconduct, or it may relate to the capacity or incompatibility of the employee, and each case has it’s own merits to be considered, and it’s own mitigating, aggravating and extenuating circumstances.

       
A dismissal on a first offence is seldom considered to be substantively fair, unless the matter is of such gravity and seriousness, that it is impossible for the employment relationship to continue. Instances might be sexual harassment, fraud, assault, theft, drunkenness on duty, and so on. By the same token, a dismissal for a relatively minor offence such as absence without authority, or habitual late-coming, or a minor insubordination, would also be found to be unfair, and probably re-instatement would be awarded.

      
The Labour Relations Act does make provision in section 187 for circumstances where a dismissal effected for one of the listed reasons is never fair, and employers should be aware that should they dismiss for any of the listed reasons, irrespective of circumstances, the Act states that such a dismissal is automatically unfair and the dismissed employee could be awarded up to 24 months salary in compensation.

  
The employer must be able to show that the decision to dismiss was a reasonable decision based on all the circumstances of the matter, and the Chairperson should be able to commit to writing all the reasons upon which his finding is based. His finding should include his reasons for rejecting sanctions other than dismissal. The Arbitrator, at a CCMA Arbitration hearing, will consider the reasons put forward by the employer for deciding upon dismissal, and such consideration will include the reasons why the employer rejected other less harsh sanctions.

         
The employer will also be required to show that  affair procedure was followed, that the evidence advanced by the employer actually proves guilt of the employee based on the balance of probability, and that the employer has been consistent in the past on the application of other instances of similar misconduct.

                  

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Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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