The Importance of Procedural Fairness in Dismissals
As our employment law specialists will explain, even if the employer has sufficient reason to dismiss an employee, it is still essential to follow fair procedures for dismissal. This is called procedural fairness and relates to the employee’s rights regarding the correct procedure to follow for termination of employment, or for taking disciplinary action.
Whether you are an employer or an employee, it is important to be informed about the correct procedures that the employer must follow regarding dismissal for misconduct or incapacity. Our employment law specialists are here to assist employees who have been dismissed for misconduct, but according to incorrect procedure. Our employment law specialists also offer legal guidance to employers regarding procedural fairness in dismissing employees.
To get you started, let’s take a look at what is the correct procedure for dismissal regarding misconduct.
Procedure
The employer must inform the worker of the charges in such a manner so as to ensure that the employee understands the allegations. The employer must also provide the employee with reasonable time to prepare a response to the charges, and must give the employee the opportunity to defend themselves against allegations.
The employee has the right to be assisted by another employee or a shop steward during the disciplinary hearing. The employee also has the right to be informed about the outcome of the disciplinary hearing. This should be in writing and done in a manner that ensures full comprehension by the employee.
The employee has the right to receive clear reasons regarding the dismissal. The employer must keep record of disciplinary action initiated against the employee. The record should state the details of the employee and the employer, the date of misconduct, the time of misconduct, the warnings given, the disciplinary actions taken, and the reason for such.
Understanding Fair Procedure
Even if the employee is dismissed for a valid reason other than misconduct, the employer must still follow fair procedure in doing so. Our employment law specialists are able to guide employers regarding fair procedure to follow in all dismissals. They also assist employees in taking the necessary legal action against employers who have dismissed them without following the correct procedure.
An employer must be sure that the requirements of the Labour Relations Act have been met regarding procedural fairness. Rather than being unsure, employers should consult with employment law specialists.
Employers can only dismiss employees for the following reasons:
- Misconduct
- Incapacity
- Operational requirements.
Even if the reason for dismissal is fair, the employer must still follow the correct procedure for dismissal. The chairperson of the disciplinary hearing must be satisfied that the reason for dismissal is fair and that fair procedure has been followed, and based on evidence presented, whether the employee is guilty or innocent.
Should the employee be guilty, then the chairperson must decide on the appropriate actions. The chairperson must follow all steps below before imposing the actions:
- Assess the process from original accusation or complaint, to closure of the disciplinary hearing, in order to establish whether fair procedure has been followed.
- The chairperson then examines the evidence to determine the employee’s innocence or guilt.
- If the chairperson determines that the employee is guilty, then the decision for appropriate action must be determined.
Before the chairperson decides that dismissal is necessary, he/she should consider factors such as:
- The employee’s length of service.
- The employee’s history at the particular employer.
- The employee’s personal circumstances.
- Whether dismissal for the particular misconduct is consistent with the company’s disciplinary code and previous applications for breach of the specific rule.
- The circumstances related to the misconduct/incapacity.
Contact our employment law specialists on (011) 234 2125 for legal guidance and assistance regarding dismissals in South Africa.
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. The information is relevant to the date of publishing.
