Dismissals | A practical guide to ensuring fairness

In South African employment law, dismissing an employee is a serious decision that requires careful adherence to both the substantive and procedural standards of fairness. The Labour Relations Act, 66 of 1995 (as amended) ("LRA") provides important guidelines to ensure the fair treatment of employees during any dismissal on grounds of misconduct or incapacity, and employers are required to balance their operational needs with their legal and ethical responsibilities to manage dismissals in a fair manner, that protects employees' rights.

SUBSTANTIVE FAIRNESS: ENSURING A VALID REASON FOR DISMISSAL

For a dismissal to be substantively fair, there must be a valid reason for the termination of employment. Schedule 8 of the LRA (Code of Good Practice: Dismissal) outlines two primary grounds for dismissal, being incapacity or misconduct.

Incapacity:

Incapacity encompasses situations where an employee is unable to perform their duties due to illness or injury, or where they are otherwise unable to reach a performance standard as required of them, on account of their poor work performance. In these circumstances, employers must assess whether the incapacity is temporary or permanent in nature, and they must explore all reasonable alternatives such as reassignment, additional training, or reasonable accommodation, before considering the question of dismissal.

A key principle in incapacity cases is the requirement to demonstrate that the dismissal was a measure of last resort, applied only when all other measures were exhausted.

Misconduct:

Misconduct involves an employee's failure to adhere to the rules (or standards of conduct) set by the employer, and includes offences such as late-coming, insubordination, theft or dishonesty. Employers are required to assess the severity of the transgression by considering factors such as the nature of the offence, the harm caused, as well as the employee's previous disciplinary record. In cases of severe or repeated misconduct, dismissal may be appropriate.

For minor transgressions, corrective measures such as warnings should be considered before resorting to formal disciplinary action.

PROCEDURAL FAIRNESS: FOLLOWING THE CORRECT PROCESS

Even when a valid reason for dismissal exists, the dismissal must still be procedurally fair. In this regard, the LRA mandates a transparent and fair process that allows  employees the opportunity to defend themselves.

Investigation:

Employers should conduct a thorough and impartial investigation to gather all relevant facts. In cases of incapacity, the investigation may involve consultations with the employee, medical professionals, or direct line managers responsible for overseeing the employee's performance. For cases of misconduct, the investigation should establish the facts surrounding the alleged transgression.

Notice and explanation of rights:

Once the investigation confirms grounds for potential dismissal, the employee must be notified in writing of the allegations (in cases of misconduct) or the performance issues (in cases of incapacity) in question. This notification should provide sufficient detail of the alleged misconduct or performance issues, allowing the employee to understand the issues at hand.

The employer must further advise employees of their right to be assisted by a shop steward or colleague of their choice, their right to an interpreter, as well as their rights to present their own evidence or to call any witnesses in support of their version of events.

Opportunity to respond:

Employees must be given a fair chance to present their side of the story, respond to the allegations, and offer any mitigating factors. In incapacity cases, the employee should have an opportunity to discuss their capacity limitations and to explore any prospect of reasonable accommodation.

Decision:

The decision to dismiss should be made based on the evidence presented during the hearing, with consideration given to both the employer's and employee’s interests. For incapacity cases, dismissal should only be implemented if the employee’s incapacity is ongoing and unavoidable. For misconduct cases, dismissal should be proportional to the severity of the offense.

Communication of the outcome:

Once a decision on the matter is made, the employer should inform the employee of the decision preferably in writing, explaining the reason for dismissal, and informing the employee of their right to approach the Commission for Conciliation, Mediation and Arbitration ("CCMA") or the appropriate Council having jurisdiction.

CONSEQUENCES OF NON-COMPLIANCE:

Failure to adhere to the standards of substantive and procedural fairness can result in an employee succeeding with a claim for unfair dismissal. The CCMA or Labour Court may order reinstatement or compensation if the dismissal is found to be unfair, highlighting the importance of adhering to the LRA’s Code of Good Practice.

CONTACT US FOR ASSISTANCE

Dismissing an employee correctly is one of the most challenging responsibilities an employer has. To navigate this process lawfully and ethically, it is crucial to adhere to the substantive and procedural requirements set out in Schedule 8 of the LRA.

Ackermann Attorneys are dedicated to helping employers understand and comply with these standards, ensuring that dismissals are managed fairly, responsibly, and in line with best practices.