Discipline and Dismissal

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 Information provided by Para Legal Advice

 What is a dismissal?

An employer can take these options to dismiss a worker:

  • give the worker notice
           

This means the employer tells the worker to leave work after a certain period, like a week or more. The worker must get wages for the time he or she worked, plus any leave pay (if he or she has not taken all the leave that is due). The worker will not get notice pay.

Or

  • give the worker notice pay (this is also called payment in lieu of notice)
          

This means the worker leaves immediately and is paid out instead of getting notice. The notice pay must be for as long as the notice time required, for example 1 week's pay instead of 1 week's notice. The payment must include the value of payment in kind. So the worker must get wages for the hours worked, plus any leave pay, plus payment in lieu of notice, or payment for accommodation (30% of basic wage).

       

or

  • retrench the worker
        

The employer must pay the worker severance pay of at least 1 week's remuneration for every full year that the worker worked for the employer. The payment must include the value of payment in kind. So the worker must get wages for the hours worked, plus any leave pay, plus notice or payment in lieu of notice, plus severance pay.

                  

Workers in the following circumstances are also entitled to fair dismissal reasons and fair dismissal procedures under the LRA. An employee could claim unfair dismissal through the CCMA in the following circumstances:

  • 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
  • a worker 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
  • a worker terminates his or her contract because the employer has transferred the contract to another employer on conditions which are substantially less favourable.

        

Automatically unfair dismissals

The following reasons for dismissal are invalid. he dismissal will be regarded as automatically unfair if the worker is dismissed for:

  • exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
  • taking part in lawful union activities
  • taking part in a legal strike or other industrial action or protest action
  • refusing to do the work of someone who was on strike
  • being pregnant, or any reason related to pregnancy
  • refusing to accept a change in working conditions
  • 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)
  • a reason related to a transfer following a merger of the company with another organisation
  • where the employee is dismissed following a disclosure made by him in terms of the “Disclosure of Information Act”.

         

When is a dismissal fair?

The LRA has a Code of Good Practice for Dismissals that employers must follow.

The 'fairness' of dismissal is decided in two ways:

 

1. Substantive fairness
(was there a 'fair' reason to dismiss the worker?

was dismissal appropriate under the circumstances?)

The employer must have a proper and fair reason for dismissing the worker.

A 'fair' reason can be one of these:

  • misconduct (the worker has done something seriously wrong and can be blamed for the misconduct.)
  • incapacity (the worker does not do the job properly, or the worker is unable to do the job due to illness or disability)
  • retrenchment or redundancy (the employer is cutting down on staff or restructuring the work and work of a particular kind has changed)

        

Even if the worker is at fault, the employer must still pay the right wages, leave pay and notice pay.

2. Procedural fairness (was there a fair procedure before the worker was dismissed?)

The worker must always have a fair hearing before being dismissed. In other words, the worker must always get a chance to give his or her side of the story before the employer decides on dismissal. Other aspects of a fair procedure are explained below under the different reasons for dismissal. The worker is allowed to refer the proposed dismissal to the CCMA for conciliation.

       

Dismissal for Misconduct

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.

 

Workers can be dismissed for misconduct if they go on strike without following the procedures. The employer must contact a trade union official and tell the official of the planned dismissals, and try to give workers an ultimatum with enough time to consider the ultimatum.

 

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:

  • If the worker is a shopsteward, the employer must first inform or consult the union.
  • 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 be represented at the hearing by a shopsteward or co-worker.
  • 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.

 

Dismissal for incapacity

Fair reasons

 

A dismissal for incapacity can be for:

  • poor work performance
  • physical disability or ill health
  • incompatibility

 

When deciding whether a dismissal for incapacity was fair or not, the following must be considered:

  • whether the worker failed to work to a required standard
  • whether the worker was aware of the standard
  • whether the worker was given a fair chance to meet the standard
  • whether dismissal is the right punishment for failing to meet the standard

 

Fair procedure

 

Dismissals for poor performance will only be fair if the employer:

  • has given the worker proper training, instructions, evaluation, guidance and advice
  • assessed the worker's performance over a reasonable period of time
  • investigated the reasons for continued poor performance
  • investigated ways of solving the problem without resorting to dismissal
  • gave the worker a chance to be heard before deciding to dismiss

 

Dismissals for (temporary/permanent) ill health or disability will only be fair if the employer:

  • investigated the degree and duration of the injury or incapacity
  • considered ways of avoiding dismissal, for example getting a temporary worker until the sick worker is better
  • tried to find alternative work for the worker to do
  • tried to adapt the work so that the worker could still do it
  • gave the worker a chance to be heard before deciding to dismiss

 

How badly ill or disabled the worker is (degree of incapacity) and for how long he or she is likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered when deciding whether the dismissal is fair or not. More effort is expected of the employer if the worker was injured or got sick because of their work.

 

Retrenchment or redundancy dismissal

Fair reasons

 

An employer is allowed to retrench workers for 'operational requirements' based on the employer's 'economic, technological, structural or similar needs'. For example, maybe the employer says the business is losing money (economic reason), the employer is getting a machine to do work that workers did by hand before, or the employer's new machines need different skills to operate them than the existing workers' skills (technological reasons), or the employer is restructuring the business by combining two departments so she doesn't need two Heads of Departments anymore (structural reason).

 

Fair procedure

 

When an employer considers retrenchment, he or she must consult:

  • whoever a collective agreement says must be consulted, or if none exists:
  • the workplace forum, or if none exists:
  • the union, or if none exists:
  • the workers themselves

 

The employer must issue a written notice inviting the other party to consult with it and make all the relevant information available in writing at the consultations, including:

  • reasons for retrenchment
  • alternatives considered including redeployment
  • number of workers to be retrenched
  • how it will be decided which workers to retrench
  • when the dismissals will take place
  • severance pay
  • what other help the employer will give to the workers who will be retrenched
  • possibilities of future re-employment for these workers
  • number of workers employed by the employer
  • number of workers the employer has retrenched during the past 12 months’

 

The people the employer is consulting with must be allowed to have their say and make suggestions on any of these issues. If the employer rejects what they say, he or she must give reasons in writing if the workers have submitted their representations in writing.

 

He consultation process is a ‘joint consensus seeking’ process. In other words the parties try and reach an agreement on the different issues, such as: (bullets follow)

  • whether retrenchment is justified and ways to avoid retrenchments
  • ways to reduce the number of people retrenched
  • ways to limit the harsh effects of retrenchment
  • the method and criteria for selecting workers to be retrenched: if there is no agreement, the employer must use fair and objective criteria
  • severance pay: workers can negotiate for higher severance pay than the LRA prescribes (which is 1 week's pay for every year of service)

 

If workers and the employer cannot agree, disputes over retrenchments and severance pay can be referred to the CCMA. Section 189A of the Labour Relations Act, has special provisions for retrenchments in companies that employ more than fifty employees. The provisions can be used by parties, if both agree to this, to help them reach an agreement. The provisions allow for an outside facilitator to help facilitate the process and the right to strike over retrenchments as a final resort.

 

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. You (as the paralegal) should report this to a union if there is one. If there is no union or the union cannot help the worker, then you can try to help the worker to get his or her job back.

        

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.

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