These days, dismissals by employers of employees have become very common. The reasons for the increasing number of dismissals could be as a result of; economic circumstances, social change and more specific factors in the workplace.
What is unfair dismissal?
An “unfair dismissal” can be defined as a dismissal where there was no fairness applied in the procedure leading up to the dismissal and/or even if the procedure may have been fair (which is not always so), the dismissal may be substantively unfair – meaning that, although the employee was found guilty of some form of misconduct, such misconduct did not warrant dismissal. In most cases, a dismissal should be seen as the last resort.
However, it is important to note that there may be (and are), circumstances where a dismissal may be immediate – e.g., theft, intoxication, being under the influence of drugs, harassment in the workplace (including but not limited to sexual harassment), or other forms of dishonesty, discrimination on any basis such as racism expressed etc.
Understanding Legal Protections of the Employee
Before South Africa’s constitution was introduced in 1996, our labour law regulations were underdeveloped however, in the years to follow, this same labour environment has become extremely regulated. The regulation of labour relations (including dismissals) is sometimes criticised, from an employer- or job-creation perspective, as “over-regulated” – especially from a trade and industry perspective. Whereas, from an employee perspective, criticism is much less, this is due to the regulatory framework being seen, to a large extent, to protect individual employee rights.
The South African Bill of Rights, as contained in the Constitution, lists specific constitutional rights (the “Bill of Rights”). Section 23 of the Constitution (“Bill of Rights”) states that “Everyone has the right to fair labour practices”. The Labour Relations Act (“LRA”), specifically, gives effect to fair labour practices in the workplace – including but not limited to unfair dismissals. More specifically, section 185 of the LRA states that every employee has the right not to be unfairly dismissed.
The Act then continues to categorise different categories of dismissals. The main categories may be summarised as the following:
· Misconduct
· Incapacity
· Dismissal due to operational requirements of the employer (so-called “retrenchments”)
Different procedures apply to the different categories – please note there are also other categories within which dismissals may occur not discussed in this article (e.g. employment equity requirements).
Unfair Dismissal in Context
Misconduct
About the first category, namely misconduct, an employee can only be found guilty of misconduct if the employee contravened a rule or standard regulating conduct in or of relevance to the workplace. Furthermore, even if the rule or standard existed, the rule must have been valid or reasonable and whether the employee was aware, or could reasonably have been expected to have been aware of the rule or standard.
Incapacity
As previously mentioned, even if a rule or standard was breached, dismissal due to incapacity may occur either as a result of physical or psychological incapacity. Notwithstanding the nature of the incapacity, any form of incapacity (whether identified by the employer itself or reported by the employee) should also be preceded by an incapacity enquiry – which is not similar to a disciplinary hearing. Just as in the case of unfair dismissals, an employee may also not be summarily dismissed based on incapacity.
The incapacity enquiry should aim at identifying the cause, existence, cure (if possible) and remedy to be applied in the event of it being found that an employee is incapacitated for whatever reason. A dismissal based on incapacity may lead to the same consequences for the employer, namely reinstatement or compensation if it is found afterwards in the CCMA / Bargaining Council that a fair procedure was not applied and that dismissal was not fair under the circumstances.
An employer needs to determine what the cause of the incapacity may be. It may be easier in the event of a physical disability which was caused either outside or inside the workplace. A physical disability may be much more detectable than a psychological/mental disability. On the other hand, a psychological/mental disability may sometimes arise without it being detected immediately, arising in the workplace due to stress, overwork and lack of support factors.
Operational Requirements
Dismissal due to operational requirements is more strictly regulated by the provisions of the Labour Relations Act, presumably to protect against unfair dismissals of which the employer is the cause – and not the employee. An employer may therefore dismiss an employee(s) on condition that compliance with the relevant sections in the LRA (sections 189 and 189A) is applied. The Act prescribes more specifically the procedure to be followed by an employer when anticipating a dismissal(s). An employer may, for instance, not pre-decide on a contemplated dismissal. The procedure as set out in the Act needs first to be followed before a dismissal decision may be taken.
A Real-life Example of Unfair Dismissal
Video footage may show that an employee while working after hours, investigates the contents of a drawer in the storeroom of the employer. In the drawer, a petty cash box is held. The next moment the employee is seen closing the drawer and walking away with an R100 note in the employee’s hand. The employer arrives the following morning, inspects the video footage and comes to the summary conclusion that the employee has stolen R100 from the petty cash box. The employer awaits the employee to arrive at work and turns the door on the employee informing the employee that he/she is dismissed for having stolen money after hours.
Afterwards, it may then appear that the bookkeeper owed the employee R100 for, say, a business expense claimed, processed the repayment, but, for some reason, could not hand over the R100 to the employee. The evidence may point out that the bookkeeper informed the employee that the R100 repayment had been logged on the system and that the R100 note was left for the employee in the drawer, but under the petty cash box for collection by the employee on his/her return to the office.
Under such circumstances, the dismissal will not only be found to be procedurally unfair, but the employer runs the acute risk that the employee may be re-instated retrospectively by the CCMA or the relevant forum – at great expense and embarrassment to the employer.
Importance of Disciplinary Hearings
Although the LRA does not specifically require a disciplinary hearing to be conducted under all circumstances, it may be risky, if not dangerous, for an employer to dismiss an employee without a disciplinary hearing having been conducted. An employer may be of the view that the facts of alleged misconduct may be so clear that a disciplinary hearing is dispensed with. If the evidence relied upon by the employer is, however, afterwards scrutinised in the CCMA or another forum (see hereunder), it may be found that there was evidence that could disprove the evidence relied upon by the employer to have dismissed an employee without a hearing.
Remedies of an Unfair Dismissal
The remedies are mainly the same and include a referral of a dispute based on unfair dismissal to either the CCMA or a Bargaining Council which has jurisdiction over the specific industry of the employer. The CCMA is more a general body considering unfair dismissal disputes of unfairly dismissed employees, whose employment was not within a sector regulated by a specific Bargaining Council. It is important to note that there are many industries whose labour disputes must be referred to a specific Bargaining Council – for example, the motoring industry, the mechanical and engineering industry, the nursing industry, the police and security industry, and even the beauty industry, all have their Bargaining Councils.
All disputes must first run the course of attempting to conciliate (“settle”) the dispute under the auspices of a presiding conciliating commissioner appointed to attempt to conciliate the dispute successfully. Only when the conciliation process fails, the employee concerned may refer the dispute further for arbitration by a presiding arbitrating commissioner. Arbitration is a much more formal process, and an arbitration award made by an arbitrator in favour of an employee is enforceable in law.
Escalating the matter
Some disputes, after a failed conciliation, must be referred to the Labour Court. These disputes are listed in the LRA, but the essence of such disputes is where there is/may be some form of retaliatory conduct by the employer, resulting in the exercise of vested rights by an employee(s)/trade union. Any alleged discriminatory acts or failures by an employer, must, after a failed conciliation, be referred to the Labour Court for adjudication. The reason behind this appears to be that discrimination/retaliatory actions by an employer are deemed in such a serious light that such disputes are reserved for the Labour Court. The High Court may also have jurisdiction, but this is a different topic and should not treaded upon without expert advice.
The remedies the CCMA/Bargaining Councils and the Labour Court have varied from compensation to be awarded to reinstatement or retrospective reinstatement to be awarded depending on the facts.
The CCMA / Bargaining Councils may make compensation awards up to a maximum of 12 months based on the employee’s monthly remuneration, while the Labour Court’s jurisdiction is increased to a maximum of 24 months.
So-called constructive dismissals are a complex issue. Most often it is found that an employee resigns under protest under the guise of a so-called constructive dismissal. This is a topic for another time.
Rights and Responsibilities as the Employee
Knowing your rights and responsibilities as an employee during the dismissal process can help you protect yourself from wrongful termination and ensure that you are treated fairly by your employer. It can also help you understand the steps involved in the dismissal process, such as the reasons for your termination and any severance packages you may be entitled to.
In addition, being aware of your rights and responsibilities can give you the confidence to seek legal advice or take action if you feel that your employer has acted unfairly or unlawfully. Therefore, employees must educate themselves on their rights and responsibilities in the event of a dismissal.
For further examination on this topic, please refer to our article on Employee Rights and Responsibilities During the Dismissal Process.
Unfairly Dismissed or Subjected to Unfair Labour Practice?
If you are an employee who has been unfairly dismissed, you must seek legal advice before taking any further action. SB Lawyers is experienced in handling such cases and can provide you with expert guidance.
If you or someone you know requires legal assistance, do not hesitate to reach out to us – we are always ready to help.