Difference Between Fair and Unfair Dismissals
As labour lawyers in Johannesburg, we provide legal advice, CCMA representation, litigation services, and assistance in drafting fair employment contracts. We represent employers, employees, employer organisations, and employee organisations. As such, we understand both sides of the employment spectrum and act in the best interests of our Johannesburg- or Pretoria-based clients, whether they are individual employees, trade unions, employers, or employer organisations. One of the frequently dealt-with issues by our labour lawyers is that of disputes regarding dismissals. As such, we take a brief look at what fair and unfair dismissals entail and what the CCMA Code of Good Practice say about them. Keep in mind the code must be used in conjunction with the Labour Relations Act and collective agreements and not as a substitute for them.
A fair dismissal is the termination of employment by an employer based on fair reasons and following fair procedures. An unfair dismissal is any termination of employment that falls outside the boundaries of fair procedures. Fairness is determined by consideration of the factors that have led to the dismissal and the procedures followed. Employers can dismiss employees for misconduct, incapacity to perform their duties according to the job requirements, or consistent failure to perform at the minimum required standard – only if the employees have received adequate or additional training in order to help them perform better, and for operational reasons.
Misconduct includes, for instance, gross insubordination, theft, fraud, endangerment of other employees, the public or themselves, wilful damage to the employer’s property or damage to client’s property, and violence at the workplace. Employees may not be dismissed for discriminatory reasons, for exercising their employee rights according to requirements of the Employment Equity Act, Basic Conditions of Employment Act, and the Labour Relations Act, for disclosure of information according to the Disclosure of Information Act, and for participating in lawful labour actions.
The employer has the responsibility to ensure that the reason for dismissal was fair and that fair procedures were followed. The employer must consider the circumstances of the incident, the employee’s personal circumstances, the nature of the misconduct, and whether it is a repeat offense. In addition, the employer must ensure that the employee receives adequate time to prepare for a disciplinary hearing, has access to evidence and documentation to be used in the disciplinary hearing, and the opportunity to defend themselves against allegations. In addition, the employer must see to it that procedures at the disciplinary hearing are fair.
Even if the above procedures have been followed, the employer must see to it that correct notice procedures are followed and wages related to the termination correctly paid. In addition, the employer must have rules and policies in place regarding misconduct. An employee cannot be dismissed for a rule that is not consistently applied, as this is discrimination. The employer must see to it that employees understand the rules. Someone cannot be dismissed for breaking a rule of which they have been unaware or have not understood.
It is the employer’s responsibility to ensure that the necessary warnings are given and that employees get an opportunity to correct their conduct or to receive relevant training or counselling. Dismissing an employee for a minor offense is not acceptable. It is therefore crucial to draft an employee conduct policy and to make it available to the employees for study. We recommend that employers study the various acts pertaining to employment and procedures to follow regarding dismissals. In addition, employers will benefit from the services offered by our labour lawyers in Johannesburg regarding the drafting of workplace policies and procedures, disciplinary action, dismissals, and dispute resolution. Employees who suspect that they have been unfairly dismissed should contact our labour lawyers for legal assistance and guidance in submitting their disputes to the CCMA or taking matters to the Labour Court.
Contact our labour lawyers in Johannesburg on (011) 234 2125.
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.