Tuesday, November 29, 2022
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Can you summarily dismiss an employee?

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Estimated reading time: 4 minutes

  • South Africa’s labour environment is strictly regulated, and employers must manage labour relations in line with legislation.
  • One myth is that an employee may be summarily dismissed when he or she has committed a serious offence.
    • Generally, arbitration orders granted in the employee’s favour are directly linked to the employer failing to follow the correct procedure.
    • Every workplace must have a relevant disciplinary code with clear rules and appropriate sanctions in place.
    • For a dismissal to be considered fair in terms of labour law, two aspects must be met: substantive fairness and procedural fairness.

Case study: You have been suspecting for months that one of your employees is helping himself to diesel from your surplus tanks on the farm. One afternoon you catch him in the act. As this is a serious offence, you summarily dismiss him from your employment. But did you act according to the law?

South Africa’s labour environment is strictly regulated, and employers must manage labour relations in line with legislation. However, there are several myths concerning labour law in practice, causing employers to believe they are acting in accordance with legislation, when in fact they are putting their businesses at risk.

The myth of summary dismissal

One of these myths is that an employee may be summarily dismissed when he or she has committed a serious offence. The reality is that under no circumstances (even if the employment contract makes provision for this) may an employer dismiss an employee without a disciplinary hearing first having taken place. A disciplinary hearing ensures that the procedure followed is fair and that there is a valid reason to justify the dismissal.

The majority of cases referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) relate to unfair dismissal, most of which concern misconduct that led to the dismissal.

Generally, arbitration orders granted in the employee’s favour are directly linked to the employer failing to follow the correct procedure. Employers must therefore understand and apply the principle of summary dismissal in the correct manner.

Read more about how to deal with employee absenteeism due to prison sentences here.

The disciplinary code

Every workplace must have a relevant disciplinary code with clear rules and appropriate sanctions in place. When these rules are broken, the employer can apply progressive discipline, or in cases of serious misconduct, proceed directly with a disciplinary hearing. The employer must keep a complete record of offences and the sanctions applied.

Applying workplace discipline

The employer must consider the seriousness of the offence and apply progressive discipline accordingly. The seriousness of an offence is influenced by the type of work the employee performs, his or her level of responsibility, the (possible) consequences of the offence, and the impact the offence has on the employee-employer trust relationship.

Examples of once-off offences that may warrant summary dismissal are gross dishonesty (theft, fraud, false statement), wilful damage to property, assault or attempted assault, gross negligence, extreme cases of contempt, and intentionally endangering people’s lives.

Discipline in the workplace aims to adjust and improve behaviour through corrective action, consultations and warnings, rather than punishing or dismissing an employee. Dismissal should always be the last resort.

Read more about the three types of labour inspection here.

Follow the correct procedure

For a dismissal to be considered fair in terms of labour law, two aspects must be met: substantive fairness (a valid reason for the dismissal) and procedural fairness (the correct procedure, which includes a disciplinary hearing).

However, once the employee has been found guilty at the conclusion of the hearing, he or she can be dismissed immediately. This means that from that moment on the employee is no longer in your service and must leave the premises. A notice period does not apply.

Before dismissal for misconduct can take place, the following must be taken into account:

  • Has a rule been broken and is the rule related to the workplace?
  • Is this a valid rule?
  • Was the employee aware of the rule or can it reasonably be expected that the employee was aware of the rule?
  • Is this rule applied consistently?
  • Was dismissal the appropriate sanction for the offence?

Employers must act proactively and ensure that employment contracts, the disciplinary code, procedures and policies are in place, and that this documentation complies with applicable legislation. – Abrie Bronkhorst, senior legal advisor, LWO Employers Organisation

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