As professional labour law consultants we provide legal guidance, litigation assistance and general consultation to employers, employer organisations, employees and employee representative organisations in South Africa.
Employers often face legal action or have to defend their actions at the CCMA for unfair dismissals. It is essential for employers to understand how and when they are allowed to dismiss employees. Our professional labour law consultants are available to interpret situations and help employers follow the correct procedures for fair dismissal of employees. We have briefly discussed some of the fair reasons for dismissals based on misconduct below to help clarify uncertainty about the reasons and procedures.
Misconduct on the Part of the Employee
You should have written rules of conduct for your employees. These rules must be reasonable and clearly communicated to ensure that all the employees are aware of them and understand them. Some rules are not necessary to record and communicate, such as theft, as this is also a criminal offence.
To fairly dismiss an employee on the grounds of misconduct, the employee must have disobeyed one of the important rules of conduct in the place of employment and it must be a necessary and fair rule. If the employee did not know that the rule existed, you cannot expect adherence to it and can therefore not dismiss the employee based on it.
The simple test is 4 fold:
- Is there a rule?
- Does the employee know or could he reasonably have been aware of the rule?
- Did the employee breach the rule?
- What are the consequences of the rule?
A warning can be issued and you can inform the employee about the rule, but dismissal is a last resort, so you should exercise progressive corrective disciplinary action in most instances, save for where the circumstances warrant dismissal.
Apply the rule consistently, this means that you cannot dismiss one employee for not adhering to a rule, while others keep their jobs at your company. The breach of the rule must be sufficiently serious to justify dismissal. If any other corrective action, such as a warning, could have corrected the employee’s behaviour, the dismissal will be deemed to not be fair.
Corrective discipline is encouraged rather than outright dismissals. It is your responsibility to assist the employee in overcoming the problem. However, you can apply progressive discipline where an informal warning and education regarding the offence is followed by disciplinary action for repeated offences.
Our professional labour law consultants look at each situation to determine the fairness of the dismissal. You should note that you can only outright dismiss an employee for a very serious offence, such as endangering the lives of co-workers, customers or the general public, and for wilfully damaging your property or for excessive insubordination. We are trained professionals who are able to determine the circumstances which will require corrective disciplinary action versus dismissals.
It is your responsibility as employer to consider the employee’s mitigatory circumstances before dismissing the employee – even for misconduct. This includes a review of the employee’s history at your company, their previous offences, performance before the incident and also their own personal situation outside the work. You furthermore need to assess the nature of the employee’s job and the circumstances surrounding the particular incident. As such, it is essential to keep record of each employee including their performance, pay structure, the length of their employment and general conduct.
Even if you dismiss an employee for the above reasons, you must still pay the required wages, including leave pay and pay for the notice period. If you are unsure about the necessary steps and reasons for dismissal, contact us at Allardyce & Partners at email@example.com or on 011 234 2125. Our professional labour law consultants are here to provide legal guidance.
*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.