In the unfortunate and unpleasant event that you have to dismiss a staff member, it's essential that you follow the procedures laid down in labour law. Not only is this necessary from a legal compliance point of view, but vital should the dismissal be disputed.
Should an employee dispute the termination of his employment, the CCMA (Commission for Conciliation, Mediation and Arbitration) will need to carefully examine whether or not the dismissal was both procedurally and substantively fair.
It is important for all employers to know that there is legal precedent for the CCMA to show no "measure of deference" to the employer's decision to dismiss in the case of a dispute. Essentially, what this means is that the employer must be able to show that the dismissal was fair in all respects.
When mediating or arbitrating a dispute, the CCMA will take into account all circumstances relating to the dismissal, including such issues as:
- The importance of the rule or rules that were breached
- The harm that was caused by the employee's conduct
- The reason/s the employer imposed the sanction
- The official procedures that were followed leading to the dismissal
- The effect of the dismissal on the employee
- The basis on which the employee is challenging the dismissal
- The employee's length of service
- Whether any additional training or instruction could plausibly result in the employee not repeating the misconduct
Even if there are valid reasons for a dismissal, the employer must follow fair procedure before dismissing an employee. This means that, in general, the employer is required to:
- Inform the employee of any allegations of misconduct in a manner the employee can understand
- Allow the employee reasonable time to respond to the allegation
- Allow the employee the opportunity to state his or her case in any and all official proceedings
- Allow the employee to obtain assistance from a shop steward or other employee during official proceedings
- Inform the employee of the outcome of any disciplinary proceedings in writing, and in a manner that the employee can understand
- Cearly state the reasons for the dismissal
- Keep records of all disciplinary actions taken against the employee
If you are in doubt about where or not you have cause for a dimissal and how to go about doing it within the law, it is always important to refer the matter to a labour broker or legal advisor who is fully versed in labour law.
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