Know the difference between fair and unfair dismissal

If you have the unpleasant task of firing an employee, you need to know what is considered fair and unfair according to Labour Law. Even if you have due cause for the dismissal, not following the correct procedures can see you paying a very costly visit to the CCMA.

The Labour Relations Act sets out the ground rules for dismissal and provides only three valid reasons for getting rid of an employee. They are:

  1. Conduct (i.e. misconduct) of the employee
  2. Capacity of the employee (his ability to do his job)
  3. Operational requirements of your business (retrenchment, as set out in the Act)

These are the only reasons that are considered "fair" by the labour courts and the onus is on you as the employer to prove that you have acted fairly.

Employee misconduct

The law is clear on what constitutes gross misconduct. Examples include purposely damaging the employer's property or endangering the safety of others, physically assaulting the employer, a colleague or a client, gross insubordination and gross dishonesty.

There is a simple test you can apply to determine whether an employee is guilty of misconduct. You must be able to show that:

  • The accused employee did in fact commit the misconduct
  • The employee knew or should have known that the conduct was an infringement of your rules
  • The rule or standard was valid or reasonable
  • The rule was consistently applied
  • The misconduct was serious enough to merit the harsh penalty of being fired

If you've answered yes to all of the above, then you do have grounds for termination, but chances are that a labour court may also ask the following:

  1. Were there any mitigating circumstances (such as long service or a first offence) and if so, why the conduct outweighs these factors?
  2. Can you prove that the employee's conduct rendered a continued employment relationship intolerable?

Once you feel you are totally justified in terminating employment, the correct procedure must be followed. This includes conducting a disciplinary hearing, which gives the employee an opportunity to respond to the allegations. 

While following these procedures may seem like a lot of effort and a big waste of time to you, you may find yourself liable for the employee's salary for 12 months if you don't go about dismissing him in the appropriate way. For more details around legislation related to the termination of an employee, visit the Department of Labour's website.



The content in this article was sourced from the Department of Labour.

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