ABR 224

1. ABR 224 Discipline and Dismissals Lecture 12

2. DISMISSALS • Must be fair. • RSA courts have decided that “Fairness” constitutes: • Substantive Fairness - Pertaining to reason; • Procedural Fairness – Pertaining to procedure; • Dismissals are thus unfair if there is no valid reason for it OR if (the prescribed) fair procedure was not followed during the dismissal. • LRA recognises 3 grounds for dismissal: • Misconduct; • Incapacity / poor work performance; • Operational requirements of the employer.

3. Definition of dismissal • Employer terminated contract of employment with or without notice • Employeereasonably expected employer to renew fixed term contract of employment on same/similar terms and employer offers less favourable terms or do not renew • Employer refuse to allow employee to resume work after maternity leave ito law, collective agreement, contract of employment • Employer dismissed number of employee for same/similar reasons and re-employ some and refuse to re-employ others (selective re-employment) • Employee terminated contract of employment with or without notice because employer made continued employment intolerable (constructive dismissal) • Employeeterminated contract of employment with or without notice because the new employer if, after transfer, employment conditions are substantially less favourable

4. Automatically unfair dismissals • In terms of section 187 of the LRA some dismissals are automatically unfair. In the main a dismissal is automatically unfair if an employee is dismissed because he/she has exercised his or her rights.

5. Automatically Unfair Dismissals • Dismissal because an employee is exercising his right to freedom of association • Dismissal because employee disclosed information that he is lawfully required or entitled to give to another person • Dismissal because employee is exercising any of his rights conferred by the LRA • Dismissal because employee participates in or supports a protected strike • Dismissal because an employee refuses to perform the duties of other employees while they are participating in a protected strike or during a lock-out • Dismissal because of the employee’s pregnancy or intended pregnancy • Dismissal because of the employer’s unfair discrimination • Dismissal in the context of a transfer or reason related to a transfer ito section 197 or 197 A;

6. Date of Dismissal • Date of dismissal to be the earlier of the date on which the contract of employment is terminated or the date on which the employee left the service of the employer • Fixed term contracts: date on which the employer offered less favourable terms or the date the employer notified the employee of his intention not to renew the contract

7. Requirements for fair dismissal • Burden of proof: on employer to prove tat dismissal relates to employee’s conduct, capacity, or employer’s operational requirements and fair procedure was adopted during dismissal • Categories of dismissal: • Misconduct • Incapacity/poor work performance • Employers’ operational requirements. • Requirements to ensure fairness of dismissal • Substantive fairness • Procedural fairness

8. Substantive Fairness • Substantive fairness as a requirement for a fair dismissal can be described as a “valid and fair reason” : employer can dismiss his employee only if he has a valid and fair reason to do so. • Valid reason • Lawful reason that will justify dismissal • Lawful in accordance with common law, statue law, collective agreement, contract of employment • Misconduct, incapacity, poor work performance, (if it is of serious nature) operational requirements of employer • Fair reason • Considering all the circumstances dismissal is the only appropriate sanction; no alternative sanction can be considered • Dismissal justified where employment relationship has become intolerable or where the trust relationship between employer and employee has irretrievably broken down

9. Procedural Fairness • Indicates the adoption of a fair procedure during a dismissal. • Opportunity to state case in relation to the charges brought against him and to bring mitigating circumstances to employer’s notice. • Natural justice: audialterampartem rule: let both sides be heard.

10. . • Requirements • Notice in writing • Notification of rights to: • Representation; • To call witnesses; • Interpreter; • Appeal- if so provided for); • The charges; • To have unbiased chairman • Prompt, fairly timed disciplinary hearing – sufficient time to prepare case

11. Dismissal for misconduct • ER must adopt necessary measures to curb misconduct - through Disciplinary Code or Procedure • Misconduct will be serious enough if it has made a continued employment relationship intolerable. • Dismissal for less serious offences will only be justified if there were previous convictions on the same/similar grounds. • Summary dismissal – ONLY in case of gross misconduct / where a criminal element is involved (theft/assault, etc); • An employee may not be dismissed for not taking part in/executing an illegal act.

12. . • Requirements for SUBSTANTIVE FAIRESS: • “Valid reason”, like theft, assault, et. • Continued employment relationship = intolerable; • There are previous similar cases of misconduct; • ER must act consequently; • All circumstances must be taken into consideration; • ER must prove that dismissal is fair on a balance of probabilities. The “checklist” according to the Code of Good Practice: • Is there a rule regarding conduct? • Is the rule reasonable? • Was EE aware of rule? • Was the rule broken? • Was the EE aware of the consequences if rule were to be broken? • Was the disc procedure applied consistently? • Is dismissal the appropriate sanction?

13. . • PROCEDURAL FAIRNESS MUST ALSO BE MET! • Notice in writing • Notification of rights to: • Representation; • To call witnesses; • Interpreter; • Appeal- if so provided for); • The charges; • To have unbiased chairman • Prompt, fairly timed disciplinary hearing – sufficient time to prepare case

14. Dismissal for incapacity • Ill Health and Poor performance • So called No fault dismissals • Distinguish between EE is willing but unable (incapacity) as opposed to unwilling but able (misconduct). • Attempt must have been made to accommodate the EE – including aninvestigation into inability to perform, assistance given i.t.o training, guidance, evaluation, sufficient time to perform. • Possibility of transfer or adaptation of existing job

15. . • TEST for substantive fairness is whether the ER can be reasonably expected to carry on with the employment relationship, taking the merits into consideration. • Factors: the nature and degree of incapacity/poor performance, probability of improvement, size of and effect on the workplace and the workers, status of the EE, service record, reason for incapacity and possibility of placement in different position.

16. . • PROCEDURAL FAIRNESS: • ER must take reasonable steps to accommodate; • Must consult with EE; • Alternate work / medical treatment and training must be considered; • Inform EE of poor performance; • Proper hearing must held if dismissal is ONLY remedy.

17. Remedies • An order for reinstatement • An order for re-employment • And order for compensation • In a case of an automatically unfair dismissal or dismissal for operational requirements, the Labour Court may in addition make an appropriate order