Employees may, after the statutory procedures have been properly implemented, be dismissed for reasons of :

• Redundancy/retrenchment/operational requirements - That is, the available work, structure or the finances of the employer no longer justify the continuation of the employee’s employment through no fault of his/her own.
• Disability or illness - Where the employee will no longer be able to carry out the job due to sickness or injury.
• Misconduct or poor performance - That is, where the employee is believed to have failed to keep to the employer’s requirements of conduct or standards of performance, the employer must conduct an investigation (enquiry) into the allegations against the employee.

Should the employer, after hearing all the evidence, consider dismissing the employee, it should ensure that such dismissal would be fair. Failure to do so would leave the employer open to an unfair dismissal finding at the CCMA or at a bargaining/statutory council. Should the employee take the matter further the employer would have to prove that the dismissal was both procedurally and substantively fair.

“Procedurally fair” relates to whether the employee was given sufficient advance notice of the enquiry, the opportunity to prepare a defence, a chance to state his/her case and the right to representation by a fellow employee.

Whether a dismissal is “substantively fair” relates to the basis for the dismissal itself rather than to the disciplinary procedures. Specifically, for the dismissal to be adjudged to be substantively fair, the employer would have to show that:

• The employee did in fact commit the misconduct or did fail to meet the required standards; AND
• The requirements/standards were achievable and reasonable; AND
• The penalty of dismissal was a fitting one in the light of the severity of the offence.

For a long time it was the sentiment of the old Industrial Court that dismissal for theft was fair, particularly where it was shown that the theft “damaged the element of trust in the employment relationship”. However, the Code of Good Practice: Dismissal as it appears in the new LRA, states that dismissal should be reserved for cases of “gross” dishonesty, but then fails to define where the line is drawn between gross and ordinary dishonesty. This indicates a subtle shift from the old view which was that it was not the grossness or extent of the dishonesty which was important but the degree to which trust had been damaged. AND

• The employee knew or should have known the requirements or standards; AND
• The rule that the employee is alleged to have broken existed at the time of the alleged offence.

CCMA arbitrators are required to apply their minds to these factors and to the circumstances of each case in the interests of fairness.

In the case of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583) the CCMA arbitrator heard a case wherein the employee was dismissed for reasons including the fact that he swore. The arbitrator did not appear to dispute the fact that the employee swore. However, it was found that no rule against swearing existed at the workplace.

The absence of the rule against swearing together with lack of evidence on the other charges led the arbitrator to find the dismissal to be unfair and to award the employee 12 months’ remuneration as compensation.

It could be argued that there need not be a rule against swearing for an employee to be guilty of misconduct. That is, employers would want to argue that swearing at the workplace is universally known to be unacceptable, making the inclusion of an anti-swearing rule unnecessary.

However, the arbitrator in this case clearly did not believe this to be the case. He/she must have worked on the assumption that swearing is acceptable unless the employer makes it clear that such language is prohibited. Another arbitrator may have seen it differently but employers cannot count on that. This is because the Code of Good Practice: Dismissal says that employers should inform their employees of their rules. This implies that the onus of proving that the rule exists and that the employee knew of the rule falls on the employer.

It can be a laborious and complex task for an employer to draw up a comprehensive set of rules but dealing with the consequences of having no rules can be far more onerous for employers. If employers are not in apposition to take charge of this vital task there are experts they can use who can take over the pain of carrying it out and making sure it is done properly.

To book for our seminars on NEW CHANGES AND DANGERS IN LABOUR LAW in Cape Town (9 March), Durban (15 March) and JHB (20 April) 2012 please contact Ronni via (011) 782-3066, 0845217492 or ronni@labourlawadvice.co.za.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.

Contact:
Tel: (011) 888-7944 Cell: 0828522973
E-mail address: labourlaw@cinet.co.za.
Website address: www.labourlawadvice.co.za.

This article first appeared in The Star.