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,
-
Wilful damage to property,
-
Wilful endangering of the safety of others,
-
Assault and fighting,
-
Gross insubordination,
-
Insolence,
-
Insubordination,
-
Sexual harassment,
-
Abusive language,
-
Intoxication on duty,
-
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,
The employee must be informed of the charge/ charges,
The employee should be present at the
hearing,
The employee must be permitted
representation (fellow employee or union member),
The employee must be allowed to call
witnesses,
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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