1. Introduction – Dismissals for Conduct and Capacity or  Incapacity
2. What is a Fair dismissal?
3. Disciplinary procedures prior to dismissal
4. Dismissal procedures
5. What are the procedures?
6. Maintaining documentary records
7. Dismissals and Strikes
8. Guidelines for dismissals concerning misconduct

CODES OF GOOD CONDUCT.1

DISMISSALS – what are fair and Unfair Dismissals?

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If so, please send an email with your name, company name and telephone number and your position in that company to employerhotline@labourjustice.com  and info@labourjustice.com 

1.  Introduction – Dismissals for Conduct and Capacity or  Incapacity.

1. This page deals with a code of good practice concerning some of the key aspects of dismissals for conduct and capacity. However, it must be known that it the info herein is only a generalization as in real terms, each company and each case is unique, and hence, departures from the norms established by this Code may be justified in proper circumstances. For example, the number of employees employed in a Company will differ as will the type of business being operated as well as style of management and hence, the Internal Code WILL warrant a variation in each case.
   Each Employer Company is a Unique Entity and it is for this reason that managers must be careful not to incorporate a Code and/or Internal Procedure that was “picked of the shelf” or taken from another Company.
   It is better to check with a professional in the field who can investigate what Codes and Procedures match the management style of your company and further, how to apply a Good Code of Practice in your company and to ensure that any existing Code is compliant.
   Should you be in any doubt, please call us on 0721768309 and we will gladly visit your company and arrange for free document and procedures audit.

2. Current Labour Law places the emphasis on collective agreements and where these exist within the confines of either a business or an entire Industry, an individual company is obliged to adhere to the agreement Internal Codes therefore are not and cannot be intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decision-making by an employer and a workplace forum or Worker Committee. An important feature here is the one that concerns either a workplace Forum or alternatively, a "worker commitee" the former normally being forced by a Trade Union and the latter being formed by the employer with a drafted constitution that is adopted and agreed to by the "collective employees" - However, this is in reality a subject on its own and will be the focus of a future Info Letter. Briefly though, it may often be in the interests of the employer to establish its own worker committee before a Trade Union forces a workplace as with the former, the employer can pre-draft the Constitution of such a Worker Committee ensuring that the constitution favours more the employer.
   Should you have such a problem, or a query with regard to Forums vs Workers Committes, or need further info, please do not hesitate to call us on 5116385 or to send an email query to: employerhotline@labourjustice.com
   However, if no Collective Agreement exists, we would opine that the onus is on the Employer to ensure that a competent and proper Code of Discipline unique to its operation not only be drafted but on completion be given to employees through what we call a Tutor Session. This is logical because it is all well and good having your Own Internal Procedure well drafted and written but without the employees knowing about it, then perhaps it becomes a wasted device. Further, should the employees not become properly aware of all internal Procedures, it can be argued by them at a disciplinary Hearing, or even worse at the CCMA or Labour Court, that they were unfairly prejudiced in that they were not aware of any such procedure.

3. The key principles of all Internal Codes is that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. 
   Where the conduct of an employee is deemed to be poor, or where behaviour is unacceptable, the Employer should apply a Procedure whereby they attempt firstly to correct that unacceptable conduct giving the transgressing employee a reasonable time to comply with the factors of how these corrections will be measured. Secondly, after having been given sufficient time to Correct his/her behaviour, should the employer still not be satisfied with the employee then the Internal Codes and Procedures must dictate what else the employer will be entitled to do. Normally, it is in the interests of the employer to arrange for a proper, procedurally correct and what must be seen as an Unbiased Disciplinary Hearing.

There are a number of issues which must be taken into account in both the written and laid out internal procedures and certainly in its implementation, as follows:-

• Make certain that the employee was given a chance to correct unacceptable behaviour. 
  
• Prepare a proper notice to attend an internal hearing ensuring that the employee is given in that notice sufficient in formation from which he/she can prepare anadequate defense.
  
• Ensure that there are correct charges on the notice and that said notice is properly served on the employee.
  
• Decide whether the employee should be suspended pending the outcome of the hearing.
  
• Implement a procedurally correct hearing preferably with an outsider who can take the oath, prepare basic minutes and arrive at a written and acceptable written award and sanction.

Please know that we are experts at devising notices to attend hearingsand at presiding at these hearings ensuring a fully professional and effective service

2. What is a Fair dismissal?
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1. A dismissal is unfair if there is not a fair reason (referred to as Subtantive) and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not a dismissal is for a fair reason is determined by the facts of the case, and the appropriateness of dismissal as a penalty. Whether or not the procedure is fair is determined by referring to the basic guidelines set out below.

2. Current Labour Law recognises three grounds on which a termination of employment might be legitimate. These are:
   
   • the conduct of the employee,
     
   • the capacity of the employee, and
     
   • the operational requirements of the employer's business.
     
     

3. In terms of Labour Law, employees do enjoy protection and the law. A dismissal is automatically unfair if the reason for the dismissal is one that amounts to an infringement of the fundamental rights of employees and trade unions, or if the reason is one of those listed in section 187. The reasons include participation in a lawful strike, intended or actual pregnancy and acts of discrimination.

4. In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee's conduct, or capacity (or incapacity), or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.

3. Disciplinary procedures prior to dismissal
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1. All employers should, as a first prize, have their own specifically drafted disciplinary procedures and consequent rules that establish the standard of conduct required of their employees. As said above, the form and content of disciplinary rules will obviously vary according to the size and nature of the employer's business and the unique management style used. In general, a larger business will require a more formal approach to discipline. An employer's rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards maybe so well established and known that it is not necessary to communicate them.However, this does give rise to problems and we find by experience to rather prepare a full set of company rules in writing to ensure that there can be no argument that said rules exist.
   
   
2. The Labour Courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees' behaviour through a system of graduated disciplinary measures such as counselling and warnings.
   
   
3. Counselling is a concept which encourages active participation by the employee (which in fact should be standard throughout all Disciplinary Procedures) and where there is an open dialogue between the employee and the manager. It is sometimes better to invite an outsider to handle the counseling session such as one of our practitioners as this gives the impression at least of impartiality and will allow the employee and the supervisor an equal opportunity “to be heard” and thereby prove successful. CAUTIONARY NOTE – no matter what type of procedure is being used, it is vital that the Employer retain documentary evidence to support the fact that the procedure was in fact implemented and to this end it is in your interests to phone us and check first before implementing any procedure.
   
   
4. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. Informal advice and correction is the best and most effective way for an employer to deal with minor violations of work discipline. As stated before, it is better to gain the active participation of the employee and often what is referred to as a WRITTEN WARNING can be openly discussed and the employee asked to CORRECT whatever conduct is found to be incorrect. 
   
   
5. Repeated misconduct will warrant OFFICIAL warnings, which themselves may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.

4.Dismissal procedures
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Generally, it is neither fair nor appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188 of the Labour Relations Act.
If unsure do not hesitate to phone on 5116385 or email us at info@labourjustice.com

The following BASIC guidelines should be Followed :- 

1. When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
   
   
2. The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
   
   
3. Ensure that the dismissal is handled in a procedurally correct fashion, no matter what the reason. There can be no summury dismissal under any any circumstances. A proper hearing must be establishes including but not limited to a proper and effective notice to attend the hearing; suspending employee; preferably bring in a qualified outsider to preside; and then implement dismissal through this procedure;

An important factor here for consideration is that in any hearing the employer (or rather the accuser) cannot be both prosecutor and judge. It is for this reason that we strongly advocate using US to handle your Disciplinary Hearings

5. What are the procedures?
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1. Normally, the employer should conduct an investigation first to determine whether there are grounds for dismissal. Once it is found from the investigation that there are certainly grounds for Dismissal, the employer must proceed with a proper and fair procedure taking all of the above into account.
   
   
2. It is far better to implement the route of formal enquiry although this should ideally be held in as pleasant an atmosphere as possible. The employer should notify the employee of the allegations using a specifically drafted form called a Notice and in a language that the employee can reasonably understand.
   
   
3. The Notice should be sufficient in detail to allow the employee a proper opportunity of preparing defenses.
   
   
4. An outsider must be called in to preside, prepare minutes and draft the Award and Sanction.
   
   
5. Employee should be allowed the opportunity 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.
   
   
6. The employer becomes what is called the Initiator and acts as a Prosecutor.
   
   
7. After the enquiry, the presiding officer should communicate the decision taken to both the Employer and the Employee;
   
   
8. Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union and this should ideally be done in writing;
   
   
9. 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 or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.

6. Maintaining documentary records
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Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions. These must be kept in a confidential staff file.

7. Dismissals and Strikes
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1. Participation in a strike that does not comply with the provisions of Chapter IV of the LRA is clearly misconduct. However, as in any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including- 
   
   • the seriousness of the contravention of this Act;
     
   • attempts made to comply with this Act; and
     
   • whether or not the strike was in response to unjustified conduct by the employer.
     
   
   
2. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

8. Guidelines for dismissals concerning misconduct
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Any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; But know that when I Preside at a hearing I will call for a copy of this rule or Rules as should any other person Presiding at a hearing.
I will also want to know IF THE EMPLOYEE WAS FULLY AWARE OF THIS RULE as this must be proven. There is no point having a Rule that the employees are not aware of. And a dismissal will be nullified if it can be proven that the rule was not known. Remember, THE ONUS AND BURDON OF PROOF RESTS WITH THE EMPLOYER.
Well, that’s it for October. Please let us know if you want to be removed from this Mailing.

Alternatively, we are ready and available to help you with any queries or problems you may have. Phone us on 5116385 or get on line and visit the web site which has sections for your queries www.labourjustice.com

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THE TEAM AT LABOUR JUSTICE.