DISMISSAL FOR
MISCONDUCT
The labour law provides that
every employee has the right not to be unfairly dismissed. Once
the existence of the dismissal is established, the employer must
prove that the reason for the dismissal is a fair reason and
effected in accordance with a fair procedure and in terms of the
law. If there is a dispute about the fairness of a dismissal,
the aggrieved employee has 30 days to refer the matter to the
CCMA or the appropriate Bargaining Council.
Dismissal
for misconduct
An employer should establish
disciplinary rules and acceptable standards of conduct within
the business. In the case of misconduct by an employee, the
employer should purse corrective or progressive disciplinary
procedures to rectify the situation.
Serious offences may include:
-
Gross dishonesty,
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Wilful damage to property,
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Wilful endangering of the
safety of others,
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Assault and fighting,
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Gross insubordination,
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Insolence,
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Insubordination,
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Sexual harassment,
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Abusive language,
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Intoxication on duty,
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Time related offences,
-
Collective absenteeism.
Guidelines
in cases of dismissal for misconduct:
Any person who is determining
whether a dismissal for misconduct is unfair in terms of the
labour law should consider-
(a) whether or not the
employee contravened a rule or standard regulating conduct
in, or of relevance to, the workplace; and
(b) if a rule or standard was
contravened, whether or not-
(i) the rule was a valid
or reasonable rule or standard;
(ii) the employee was
aware, or could reasonably be expected to have been
aware, of the rule or standard;
(iii) the rule or
standard has been consistently applied by the employer;
and
(iv) dismissal was an
appropriate sanction for the contravention of the rule
or standard.
For any dismissal to be fair in
law, it needs to be substantively and procedurally fair.
Substantive fairness would include satisfying the following:
Procedural fairness in respect
of a Disciplinary Hearing would include:
-
Adequate notice,
-
The hearing must precede the
decision,
-
The hearing must be timeous,
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The employee must be informed of
the charge/ charges,
-
The employee should be
present at the hearing,
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The employee must be
permitted representation (fellow employee or union member),
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The employee must be allowed
to call witnesses,
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The presiding officer should
keep minutes,
-
The presiding officer
should be impartial.
Onus in
dismissal disputes:
Bear in mind s192 of the Act,
which states that:
1. In any proceedings concerning any dismissal, the employee
must establish the existence of the dismissal.
2. If the existence of the dismissal is established, the
employer must prove that the dismissal is fair.
Compensation
for unfair dismissal:
The Labour Relations Act now
provides for a greater degree of discretion for arbitrators and
judges when it comes to compensation and affixes the maximum
amount of compensation for an unfair dismissal at twelve months
salary in the case of dismissals that are substantively unfair,
procedurally unfair or both.
DISPUTES
Disputes over a dismissal based
on misconduct must be referred immediately to the CCMA/
Bargaining Council. Should you need assistance with the
enforcing the labour law, call Labour Protect on
0860 522687
and you will be automatically routed to the nearest labour
expert on the network...
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