The CCMA Code of Good Practice outlines the procedures regarding dismissals. CCMA unfair dismissals instances are also explained on their website. As experienced labour law attorneys, we represent trade unions, employer organisations, employees and employers respectively regarding CCMA referrals for unfair dismissals. However, preventing the need to refer cases of unfair dismissals to the CCMA is better for all parties involved, and we thus provide a brief summary of the CCMA Code of Good Practice on dismissals below to help employers understand the correct procedures and employees understand when dismissals are not fair.
Although the Code of Good Practice provides guidelines to follow regarding dismissals, it is important to understand that the Code has a general intention and that each situation should be reviewed based on its own merits. The Code is not a substitute for the Labour Relations Act or collective agreements, but does have the purpose to provide ethical boundaries for dismissing employees and must be considered as guidelines. The Code is based on the principle of mutual respect and fair treatment of employees. Though the guidelines are mainly for employers, employees should also take note of the right of employers to expect reasonable performance and conduct from their workers.
When is a Dismissal Fair?
According to the CCMA, unfair dismissals are any of the dismissals which fall outside the scope of reasonable reasons for dismissing employees and the following of acceptable procedures in dealing with misconduct.
A dismissal accordingly is unfair if it is not done for a fair reason and/or when fair procedures are not followed, even if the dismissal has been done in accordance with the required contract of employment timeframe or within the realm of labour legislation. Fairness of the dismissal is based on the facts surrounding the particular incident that has led to dismissal and the fairness of the procedure is assessed based on the Code of Good Practice guidelines regarding correct procedures for dismissing employees.
Legitimate Reasons for Dismissal
Employers should study the Labour Relations Act in depth to ensure that they understand the reasons that are seen as fair grounds for dismissal. An employee can only be dismissed for their conduct and capacity or because of operational requirements of the employer. If the dismissal infringes on any of the worker’s constitutionally guaranteed rights, it is considered as unfair. Such rights include the right to participate in legal strikes, the right not to be discriminated against and the right to pregnancy.
Who Must Show Fairness?
The employer must be able to prove that the dismissal is for a fair reason, such as the employee’s ability to perform duties, the conduct of the employee or because of company restructuring or operational needs. Even if done for a fair reason, the employer must also be able to demonstrate that correct procedures have been followed in the dismissal of the employee or employees.
Dismissal Based on Misconduct
The employer should follow the correct procedures for dismissal regarding employee misconduct. This includes setting up and following the correct disciplinary procedures before the employee is dismissed. The employer must have disciplinary rules in place regarding employee conduct. These rules must be known by the employee or at the very least the employee could reasonably have been aware of the rule. Breaching of such rules may lead to disciplinary action against the relevant employee. Such rules, however, must be fair, reasonable and provide the necessary consistency to ensure that the employees understand what is expected of them. The rules must be communicated to the employees as employees cannot be expected to follow the rules if they are unaware of such or do not understand it. There are, however, rules that are basic and therefore require no clarification.
The employer must make the necessary efforts to ensure that the actions of employees can be corrected through warnings and relevant counselling. The formal disciplinary procedures must only be invoked when really necessary as to avoid dismissal for minor offences. Serious offences or repeating offences even after several warnings can lead to fair dismissals, subject to following the correct procedures for dismissals for employee misconduct.
An employer should, for instance, not dismiss an employee for their first offence such as coming late for work or even theft, unless the relationship between the employer and employee has become so stressful because of the misconduct that it is impossible to ensure a tolerable work relationship. Serious offences include purposed damage to the employer’s property or wilfully injuring another employee or a customer or openly and grossly disobeying the employer. Recklessly and wilfully endangering the safety of co-workers, clients or the employer is also a valid reason for disciplinary action and dismissal for misconduct.
CCMA unfair dismissals dispute procedures and fair dismissals guidelines should be followed at all times.
Contact Allardyce & Partners on reception@www.allardyce.co.za or 011 234 2125 for legal guidance and representation in unfair dismissal cases.
*NB this article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
