Description
The law of unfair dismissal is codified by Schedule 8 of the LRA , Code of Good 2 (viii)
Practice: Dismissal (Form 2.5) which is to be followed in cases of dismissal. The LRA uses a wide definition of the term ?dismissal? which expressly recognises devices such as the failure to renew a fixed term contract where the employee has a ?reasonable expectation? of such renewal, as falling within the definition of a dismissal. So too are ?constructive dismissals? ? making the working environment intolerable for an employee causing such employee to leave; and failing to offer a woman her job back after maternity leave.
The Act distinguishes between two types of dismissals: automatically unfair dismissals and other dismissals. An automatically unfair dismissal is one where the reason can essentially be categorised as discrimination, victimisation for trade union activity, or some other breach of fundamental employee rights conferred by the LRA. In such cases, the maximum compensation which an employer may be ordered to pay such a dismissed employee by the Labour Court (in those cases where reinstatement is not appropriate) is double the maximum amount which a court can award for other unfair dismissals ? two years? wages, as opposed to one year?s wages for other unfair dismissals. Reinstatement is intended to be the normal rule and compensation the exception under the Act.
The Act states in clear terms that it is for the employer to prove both the fairness of the reason for the dismissal as well as the procedure which was followed in reaching such decision.
Valid reasons for dismissal are to be found in one of three categories: misconduct, incapacity (illness or poor work performance) and operational reasons (retrenchment).
What precisely amounts to misconduct, as well as when its gravity is such to warrant dismissal, depends, in the first instance, on the nature of the job performed by the accused employee. Thus an employer must first be in a position to show that the disciplinary standards set for his employees are clear and easily understood; reasonable in their application to the dictates of the job; clearly communicated to all employees so that they know what is required of them; and consistently applied. The code of good practice (see Form 2.5) states: ?Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination… ?When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee?s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.?
In the case of both capacity and operational reasons, dismissal is only appropriate after all reasonable alternatives, short of dismissal, have been jointly investigated between employer and employee and found to be wanting in resolving the particular problem faced by the employer. Hence in the latter two instances, procedural fairness will take the form of joint, bona fide (good faith) consultation between the parties. In the case of alleged misconduct, the aim of the exercise is to investigate and test the facts relevant to the conduct complained of and give the accused employee an opportunity to state his/her case both in regard to the question of guilt and sanction.