Discipline and Dismissal

 

Many arguments arise in the workplace regarding promotion to an existing post, perhaps upon retirement or resignation of the existing incumbent, or even to a newly created post. Most employees are of the opinion that because they are already employed by the employer, or because they are already employed in that particular department, or have a number of years experience in the post just below the vacant post, that they are entitled to be promoted, or that they have an entitlement to receive preference above any other applicants.


This is not so. An employee does not have any legal entitlement to be promoted to a higher post. If there are conditions contained in the employment contract regulating promotion, then of course the employee could make a claim in terms of those conditions.


Employers are perfectly free to choose who they will appoint to any vacant post, whether it is a promotion or not. This however, does not negate the normal requirements of recruitment and selection, and very importantly the requirement of fairness and objectivity. The employer is free to choose and decide which posts he will create, or free to decide even, upon retirement or resignation of an employee, to freeze that post or abandon it altogether.


No employee is entitled to preference regarding career advancement in the employers organization, and no employee is even entitled to preference over job applicants from outside the organization. However, in some cases, the employer may be wise in affording such preference to existing employees – “rather the devil you know than the devil you don't know.” In other words, promotion is at the discretion and decision of the employer - in terms of common law.


Promotion means an elevation to a higher post - usually with an attendant increase in salary and/or benefits - and probably an increase in duty and responsibility as well, and an elevation in status may also be included.


Therefore, the so-called " lateral transfer” is not a promotion. One must also note that a failure or refusal by the employer to promote an employee into a higher post, must constitute an unfair action by the employer. That is why it is termed “ unfair” labour practice. If the employer can show that the selection was made fairly, reasonably, and lawfully, then there cannot be a dispute of unfair labour practice.


This makes it difficult. Often, there is more than one applicant for the post from employees within the organization. The employer must make a decision, in terms of the requirements of the job, what qualifications and prior experience are necessary, and obviously when considering the applications from existing employees, the employer will also take into consideration other factors such as the applicant’s attendance record or disciplinary record, the applicant's management skills if the vacancy entails a management position, the applicants past loyalty to the company, his efforts to contribute value to the growth of the company, and so on.


Although generally an employer would not be able to measure such criteria when considering an outsider, it would be natural for the employer to consider such criteria for his existing employees. The consideration of such criteria would in fact count in favour of internal applicants for the post, and it would be ludicrous to suggest that the employer may not consider such factors in his deliberations on deciding who is the most suitably qualified applicant for the job.


Disputes will arise because all applicants for the job consider themselves to be the best qualified. All applicants consider that they can do the job better than anybody else - and thus the referral of disputes from those applicants or existing employees who failed to be given the post are inevitable.

 

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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