Unemployment is a burning topic of discussion in South Africa. A large number of South Africans are unemployed. Statistics South Africa’s Quarterly Labour Force Survey (QLFS) for the fourth quarter of 2017, states that the current unemployment rate is 26.7%. It is therefore important for employed South Africans to understand the legal principles regulating dismissal.
What must South Africans know?
The Labour Relations Act 66 of 1995, as amended (hereinafter referred to as the “LRA”), regulates all aspects relating to the dismissal of Employees.
The Act creates three grounds for fair dismissal:
- The conduct of the Employee
- The capacity of the Employee
- The operational requirements of the Employer’s business.
An Employee can only be fairly dismissed for one of the abovementioned grounds. A dismissal must be substantially and procedurally fair. The abovementioned three grounds are the substantive reasons for dismissal.
Procedural fairness deals with the procedural steps that must be followed during the process of dismissal. Schedule 8 of the LRA (Code of Good Practice) describes fair procedure as the following:
“Informing the employee of the allegations raised against him in a form and language he/she can understand. The employee must be provided an opportunity to respond to the allegations raised against him and provide him/her with sufficient time to prepare and to seek assistance from Trade union representative or fellow employee. When the enquiry is conducted the result must be communicated to the employee. Fair procedure must be complied with for dismissal to be fair”.
In order for dismissal to be fair, both substantive and procedural fairness must be complied with. Failure to comply with either or both, will result in the dismissal of an Employee being deemed unfair.
A dismissal will be regarded as automatically unfair, if the reason for the dismissal infringes on the Employee’s right to exercise his rights provided for in the LRA or the Employees rights to belong and participate in a Trade Union. Section 187 of the LRA outlines a list of reasons that are regarded as automatically unfair and ranges from participation in protected strikes or protest actions, pregnancy or unfair discrimination against the Employee on any ground encompassing but not limited to race, gender, sex, origin, colour, sexual orientation, disability, religion, political opinion, belief, culture, language, martial status or family responsibility.
Where the dismissal is not automatically unfair, the onus is on the Employer to prove that the dismissal was substantively fair according to either the conduct of the Employee, capacity of the Employee or the operational requirements of the Employer’s business.
What conduct would justify dismissing the Employee?
The fairness of dismissal relating to misconduct, will depend on the following factors:
- If the Employee contravened a rule or standard relevant to work place;
- If the rule or standard that was contravened, was valid or reasonable, whether the Employee was aware or could have been reasonably aware and that the rule has been applied consistently; and
- whether dismissal is an appropriate sanction for the contravention of the rule or standard.
- It should be noted that the Employee may only be dismissed once a fair Disciplinary Hearing in accordance with The Code of Good Practice of the LRA has been conducted.
When would incapacity justify dismissing an Employee?
The Code of Good Practice in Chapter 8 of the LRA divides incapacity for dismissal into two categories namely, poor work performance and ill health or injury. When determining the substantive fairness of dismissal relating to work performance, one must consider the following:
- Did the Employee fail to meet a performance standard;
- if the Employee failed to meet the performance standard, one must investigate whether the Employee was aware or could reasonably be expected to be aware of the required performance standard;
- was the Employee given a fair opportunity to meet the required standard; and
- is dismissal the appropriate sanction for failing to meet the performance standard.
Dismissal for ill health or injury is divided into temporary or permanent ill health or injury. In the circumstances of temporary and permanent ill health or injury, the Employer must do the following:
- investigate the extent of the incapacity;
- consider the time the Employee is likely to be absent and whether it is unreasonably long in the circumstances;
- whether the Employee is capable to perform;
- investigate the possible alternatives to dismissal. This consideration involves the nature of the job, period of absence, securing temporary replacement etc; and
- the availability of alternative work or adaptions to the accommodate the Employee.
The Employee is entitled an opportunity to respond to the abovementioned when a Disciplinary Hearing is conducted, with the assistance of a Trade Union Representative or Fellow Employee.
Dismissal based on Operational Requirements
Operational requirements is defined in section 213 of the LRA as “requirements based on the economic, technological, structural or similar needs of an employer”. The fairness of the dismissal of Employees based on operational requirements, is determined by the process as stipulated in Section 189 of the LRA. Operational requirements should be the last option when it comes to deciding whether to dismiss an Employee. There must be a genuine reason to dismiss an Employee based on economic factors for the dismissal, to be regarded as substantively fair. It should further be noted that the processes as outlined in Section 189 of the LRA must be followed for the dismissals to be deemed procedurally fair.
If an Employer dismisses an Employee where it is not substantively and procedurally fair, the dismissal will be regarded as unfair. The dismissed Employee will be able to approach the relevant bargaining council or the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Councils to Conciliate or Arbitrate the dispute.
Where an Employee is dismissed unfairly, he will be entitled to rely on the protection outlined in Section 193 of the LRA. These remedies include reinstatement or re-employment into a similar position (if possible) or would require the Employer to pay compensation to the Employee.
Contact SchoemanLaw Inc for expert advice on all your Employment-related matters.
Written by Marcel Hart, SchoemanLaw