HR 101 - WHAT TO DO WHEN . . . . You Want To Dismiss
Staff?
Part 2
By Nikki Viljoen – N Viljoen
Consulting CC.
Please note that this pertains to South African Labour Relations and
Best Practice requirements.
So here we are
again – let’s look at what is considered an ‘unfair’ dismissal.
·
any dismissal that is not done for a fair reason
(like you just don’t like the person) is considered ‘unfair’.
·
any dismissal that takes place without the proper
and fair procedure, irrespective of whether
it is in accordance with any notice period in a contract of employment
or in legislation governing employment.
So this means that you cannot just come to work one day and decide that
George has to go, because he is irritating the hell out of you, so you give him
a month’s notice as per his Letter of Appointment and in compliance with
legislation – I mean you did give him a month’s notice so what is the
problem? Right? Wrong!
Each time you
dismiss someone, please understand in order for you to ascertain whether it is
fair or not is always determined by the facts of the case and whether dismissal
is appropriate or not as a penalty.
I would also
like to add in here that it is also determined by precedents that have been set
in previous cases. Let me explain. If two years ago one of your employees (let’s
call him Philip) was caught stealing say R100.00 out of the till and Philip
managed to convince everyone at his disciplinary, that he had ‘borrowed’ the
money for taxi fare and that he intended to pay it back the following day and
you gave him a ‘Final Written Warning’ in consequence of his actions and now George
is caught stealing say R100.00 out of the till and George now also says that he
‘borrowed’ the money for taxi fare and that he intended to pay the money back
the next day, but you are fed up with George because his attitude is bad, so
you dismiss him – this would be construed as ‘unfair’ dismissal because you did
not dismiss Philip for the same offense, two years ago. So be careful when dishing out punishments
for first time offences – they may just come back and bite you on the rear end
in the future!
You still have
to follow the correct procedure and whether the procedure is fair or not is
determined by, but not limited to, the following guidelines.
There are three
grounds, by which ‘dismissal’ is considered fair and legitimate, by the Act.
These are:
·
the conduct of the employee (which is why it is of
critical importance to have a documented ‘Code of Conduct’ for your Company)
·
the capacity of the employee and
·
the operational requirements of the employer’s
business.
The Act says
that a dismissal is automatically unfair if the reason for the dismissal is:
·
anything that is an infringement of the basic
rights of employees and/or trade unions or
·
if the reason is one of those that is listed in
section 187.
These reasons
include, but are not limited to:
·
if the employee participates in a lawful strike
·
if the employee intends to become or is pregnant
·
any acts of discrimination against the employee.
Where the
dismissal is not automatically unfair, the employer has to show that the reason
for the dismissal is because the employee’s conduct was in question or that the
employee’s capacity was in question or it is based on the employee’s failure to
meet the operational requirements of the employer’s business.
If you, as the
employer cannot show this or if you cannot prove that the dismissal was
performed within the parameters of fair procedure, then the dismissal will be
deemed as unfair.
In essence you
have to make very sure that you have all your ducks in a row and that you can
substantiate and prove anything that needs to be proved in this respect.
Next week we
will look at the Disciplinary Procedures prior to dismissal.
Nikki is an Internal Auditor and Business
Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za
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