Section 188 (1) of the Labour Relations Act 66 of 1995 (‘LRA’) states that;
“a dismissal which is not automatically unfair is still unfair if the employer fails to prove –
•(a) That the reason for the dismissal is a fair reason –
•(i) Related to the employee’s conduct or capacity; or
•(ii) Based on the employer’s operational requirements; and
•(b) That the dismissal was effected in accordance with a fair procedure.”
It should be borne in mind that dismissal and the procedures followed in accordance with that are regulated mainly by internal company policies. However, it is sometimes possible to deviate from dismissal policies and procedures; for the sake of this article, let’s consider both options:
1 – Where internal dismissal policies and procedures exist
Riekert v Commission for Conciliation Mediation and Arbitration and Others (JR686/03) [2005] ZALC 90; [2006] 4 BLLR 353 (LC); (2006) 27 ILJ 1706 (LC) (28 September 2005) the Court found that the employer had an extensive disciplinary code which it had deviated from in the dismissal of an employee, and subsequently held, on review, that “the CCMA arbitrator had been wrong in accepting the employer’s deviation from its code in the absence of any compelling reason for such deviation.”
As far as internal disciplinary policies and procedures act as guidelines, it is of the utmost importance that employers stay within the fundamentals contained therein. Without compelling reasons, an employer may not simply disregard its internal policies and procedures and dismiss an employee whichever it deems fit. Where internal policies and procedures are entrenched, the employer is bound to that and should follow its dismissal procedures accordingly.
2 – Where there are no internal dismissal policies and procedures
Item 4 of Schedule 8 of the Code of Good Practice on Dismissals describes a fair dismissal procedure as “the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand.
The employee should be allowed to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken”.
Common law, as codified by the Code of Good Practice, dictates that an employee MUST be allowed to be heard for a dismissal to be considered fair. There is no statutorily imposed approach that should be followed before dismissing an employee, primarily where compelling evidence and circumstances exist in support of a dismissal.
3 – Case Law
Case law, such as Steenkamp and Others v Edcon Limited (CCT29/18) [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC) (30 April 2019), supports this stance in laying out that the onus placed upon an employer when dismissing an employee is at a basic level and should one determine that fair process was followed, albeit not in accordance with ‘traditional’ dismissal procedures, such a dismissal will be under Section 188 of the LRA and thus considered fair.
4 – Fair procedure
Typically, the employer should investigate whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed to state a case in response to the claims. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision and provide the employee with written notification.
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should only be instituted by first informing and consulting the trade union.
If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction to the Commission or any dispute resolution procedures established in terms of a collective agreement.
In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
An employer CAN NEVER dismiss an employee without having held some form of hearing/inquiry/investigation; the nature of that hearing/inquiry/investigation and its fairness would then be open to interpretation.
For assistance in navigating corrective disciplinary action or advice on proper labour procedures, email us at admin@invictusgroup.co.za or call our offices at 086 173 7263.
