After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has -. The scenario above the dismissal is for alleged misconduct. Automatically unfair dismissals 188. Copyright © 2020. The procedure does not apply if it is alleged that the employee has breached a rule of the employer regulating conduct, in which case the disciplinary procedure will apply. What must be realized is that the LRA recognizes only three circumstances under which a dismissal may be considered fair – misconduct, incapacity (including … An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. 9.2 Appeals must be noted in writing within five (5) days of the decision, 9.5 In the event that the dismissal is confirmed, the date of dismissal shall be that. The Act recognises three grounds on which a termination of employment might be legitimate.Â. 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. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -. ccma guidelines: misconduct arbitrations guidelines on misconduct arbitrations published by the commission for conciliation, mediation and arbitration in terms of section 115(2)(g) of the labour relations act, 1995 (act no. Section 194 of the Labour Relations Act (LRA) allows arbitrators and judges to grant employees compensation for unfair dismissal where reinstatement is not appropriate. This Act provides that a dismissal is automatically unfair if the reason for the dismissal is: a. one that amounts to an infringement of the fundamental rights of employees and trade unions, or. NBCCI GUIDELINES: MISCONDUCT ARBITRATIONS 3 A: PURPOSE AND NATURE OF GUIDELINES Purpose 1 These guidelines are issued by the NBCCI in terms of section 155(2)(g) of the Labour Relations Act, 66 of 1995 (the LRA). Most large employers have disciplinary codes which detail the offences deemed to justify dismissal or some lesser sanction. 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. date on which the employee is advised of the outcome of the appeal hearing. Court’s evaluation The procedure only applies to employees who can reasonably be expected to bring their performance up to standard. Termination of employment as defined by section 36 Employment Labour Relations Act No. As there is no agreement for the Court to arbitrate the applicant‟s alternative claim of unfair dismissal for misconduct under s158(2)(b) of the Labour Relations Act, 66 of 1995 („the LRA‟),in the event that the applicant fails in his primary claim that he was unfairly dismissed for operational reasons, resolution of this question will determine whether the matter may proceed in the Labour Court. Right not to be unfairly dismissed 186. SCHEDULE 8 (CODE OF GOOD PRACTICE: DISMISSAL) of the Labour Relations Act deals with some of the key aspects of dismissals for reasons related to conduct and capacity This article deals with dismissals for misconduct See Sc hedule 8 Misconduct can be best described as the employee’s failure to adhere to the rules and policies of the employer. Dismissal should be reserved for cases of serious misconduct or repeated offences. Repeated misconduct will warrant warnings awnings, which themselves may be graded according to degrees of severity. Dismissal should be reserved for cases of serious misconduct or repeated offences.Â. for dismissal is a reason related to the employee's conduct or capacity, or is based on the operational requirements of the business. Formal procedures do not have to be invoked every time a rule is broken or a standard is not met. The Labour Relations Act, recognises three types of dismissal, namely: - Misconduct - Operational requirements (retrenchment) - Incapacity (ill health, injury, poor performance) Schedule 8 of the Labour Relations Act lays down the following Code of Good Practice when dealing with poor performance;- “9. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. Misconduct is prevalent in every workplace and its consequences may have far reaching implications. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them. All Rights Reserved. The cause of the incapacity may also be relevant. Dismissal for misconduct is said to take place when an employee culpably disregards the rules of the workplace. Guidelines in cases of dismissal for poor work performance. However, like any other act of misconduct, it does not always deserve dismissal. In the process, the employer should have the right to be heard and to be assisted by a trade union representative or a fellow employee. dismissal was an appropriate sanction for the contravention of the rule or standard. This indicated that the LC accepted that misconduct had indeed been proven. Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance with fair procedure, taking into account any relevant code of good practice. Labour Guide. Guidelines in cases of dismissal arising from ill health or injury. This Code is not 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.Â, 3.The key principle on this Code is that employers and employees should treat one another with mutual respect. 6 of 2004 and Rule (ELRA) may mean; A lawful termination under the Common law. a) 3 categories of dismissals are recognized by the Labour Relations Act 1995(“LRA”): dismissals for misconduct, incapacity and operational requirements. An employer should advise the employee of this right upon dismissing the employee (see paragraph 8). whether or not the strike was in response to unjustified conduct by the employer. Dismissals based on operational requirements A compensation order is one that requires the employer to pay the employee an amount of money in recompense for unfair dismissal or an unfair labour practice. Labour Guide. Therefore, the true reason for the dismissal was the employee’s mental illness and not the alleged misconduct. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. It is the practice of the CCMA not to accept any referrals from parties until all internal procedures have been exhausted. 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 is based on the operational requirements of the business. In the absence of such evidence, it was found that the dismissal was unfair. Labour Law South Africa expert Articles on CCMA, constructive dismissal, unfair labour practice, labour court cases, disciplinary hearing, retrenchments and best practices for both employers and employees in Labour Relations Act and Amendments. The Labour Relations Act explains gross misconduct as actions, such as physically assaulting a colleague, client or the employer, being grossly dishonest, endangering the lives of the public, colleagues or the employer, and wilfully damaging the employer’s property. c. the operational requirements of the employer's business. Dismissals for misconduct Generally, it is not 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. The employer is obliged to consult regarding measures to minimise the number of dismissals, and also to mitigate the adverse effects of dismissal. In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures. A Introduction: identifying the need for the application of a performance management process . The law promotes the principle of progressive discipline. An employee who is dismissed may refer a dispute to the CCMA or a bargaining council with jurisdiction within 30 days of the date of the employee's dismissal. Misconduct Disciplinary procedures prior to dismissal 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. All Rights Reserved. Dismissal should be reserved for cases of serious misconduct or repeated offences. 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. Labour Relations Act. the circumstances of the infringement itself. Any person determining whether a dismissal for poor work performance is unfair should consider: whether or not the employee failed to meet a performance standard; and, if the employee did not meet a required performance standard whether or not -. 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; and. the possibility of securing a temporary replacement for the ill or injured employee. An employer might also seek to go straight to dismissal if an employee has committed an act of gross misconduct which has, or could have had, very serious consequences, or if they feel the employee is guilty of a fundamental breach of contract. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.Â. 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. the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; the employee was given a fair opportunity to meet the required performance standard; and. In terms of section 138(6), a … Misconduct is a ground for the termination of employment of the workers in an organisation or industrial concern. If misconduct is identified within a company, an employer should investigate the allegations against the employee. Meaning of dismissal 187. In Legal Aid SA v Jansen (LAC), the employer appealed against the Labour Court’s decision whereby it held that the dismissal of the employee was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (“LRA”) and that he had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, on the basis of him suffering from depression. Dismissals for misconduct (4) Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.  Provided by the Commission for Conciliation, Mediation and Arbitration (CCMA), The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, 2.This Act emphasises the primacy of collective agreements. The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.Â. An employee who is dismissed must be informed that's/he has the right to refer a dispute in terms of the Labour Relations Act of 1995 within 30 days of the date on which the employee was dismissed. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. b. in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. While employees should be protected form arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.Â, a. it is not effected for a fair reason and. 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: the circumstances of the infringement itself. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Recent Case Law Relevant to Public Service Labour Law Amendments - July 2019.pdf. b. if the reason is one of those listed in section 187. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. 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.Â. 1.2 The objectives of this procedure are to: 1.2.4 assist the employer to apply corrective action where appropriate. The period should be determined by the nature of the job, and the time it takes to determine the employee's suitability for continued employment. Generally, it is not 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. (a) the date on which the contract of employment terminated; or, (b) the date on which the employee left the service of the employer.". The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative of fellow employee. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The Labour Relations Act provides that the termination of the contract of employment by the employee, with or without notice, will be regarded as a dismissal if the reason for the termination was that the employer made continued employment intolerable for the employee. A newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. 6. Efforts should be made to correct employee's behaviour through a system of graduated disciplinary measures such as counselling and warnings.Â, 3. 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