In the instance where there is a dispute between an employer and employee, and the employer foresees the need to dismiss the employee, South African Labour Law requires that a disciplinary inquiry be held in order to determine the status of the employee’s position. When misconduct occurs, the employer should conduct an investigation to determine whether there are grounds for disciplinary action or dismissal. The objective of the disciplinary inquiry is to determine whether the dismissal of an employee, on the ground of misconduct, will be fair and just according to the Labour Relations Act.
The provisions of the Labour Relations Act, as well the Code of Good Practice issued in terms of the Labour Relations Act, need to be taken into account in order to determine if dismissal will be fair, just and equitable. Procedural and substantive fairness are the two stepping stones on which these disciplinary inquiries are based.
Substantive fairness means that there is a just, fair and equitable reason for an employer to dismiss the employee. This is a subjective test. The guidelines provided by item 7 of the Code of Good Practice are aimed at establishing substantive fairness and in terms of schedule 8, the proper procedures need to be followed.
The person considering if a dismissal is fair, needs to consider the following:
- Is dismissal the appropriate step to take against the employee rather than a less severe penalty for example, a verbal or written warning?
- Does the employer have prima facie proof of the misconduct that had taken place?
- If a rule of conduct has been broken, determine the following:
a. Is there a rule that was broken?
b. Is the rule valid, fair or reasonable?
c. Has the employer been consistent in applying the rule?
d. Is the rule consistently applied by employees?
e. Does the employee have knowledge about the rule or can it be reasonably expected of the employee to know about the rule?
f. Is dismissal appropriate for breaking the rule?
- The employer must provide proof of the misconduct, based on the test of “balance of probabilities”. In other words, the probability of the misconduct taking place, is bigger than the possibility of the misconduct not taking place.
This means that the employer has followed a fair and proper procedure before dismissing the employee, even if the dismissal is substantively unfair. Not only should the dismissal be made with a fair reason, but it should also be followed within a fair procedure. Procedural fairness refers to a disciplinary inquiry that has to be held to give the employee the opportunity to state his or her defence. This requirement has been derived from the the audi alteram partem rule, meaning that each party should have the opportunity to state its case before a ruling is made. Procedural fairness requirements are set out in schedule 8 of the Labour Relations Act (LRA) and entails the following:
- It stipulates that grounds for dismissal should be investigated and the investigation does not need to be a formal hearing.
- The employee should be notified of the allegations being made against him/her, given reasonable time to prepare a response on the allegations.
- The accused employee(s) should be allowed an opportunity to state his/her case in response to the allegations.
- The employee is entitled to representation by a colleague or a representative of a union.
- The employer’s ruling should be communicated, preferably in writing.
- The reason for dismissal should be provided by the employer, and the employee has a right to refer the dismissal to the CCMA within 30 days after the ruling was made.
Furthermore, Item 4(1) of the Code of Good Practice sets out the requirements for a procedure to be fair, before dismissal takes place:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form of language that the employee can reasonably understand. The 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 a response and to the assistance of a trade union representative or a fellow employee. After the inquiry they should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”
The person (the Arbitrator of Commissioner) who will determine whether the procedural measurements – that have been followed – are fair, will need to consider the following:
- The investigation should take place as soon as possible.
- The employer should notify the employee of the allegations, using a language that the employee can reasonably understand.
- This notice should set out the charges and the employee’s rights during the inquiry.
- The charges should be detailed enough for the employee to determine the charge against him.
- The employee is entitled to a reasonable time (at least 48hours) to prepare his defence.
- The employee is entitled to be present during a hearing and to present his defence by cross questioning the employer’s witnesses, presenting his own evidence and then by stating his own defence.
- If the employee is found guilty, the employee has the right to present mitigating circumstances before a sanction is given. In the same instance, the employer has the opportunity to present aggravating circumstances before the sanction is given.
- If the employee is dismissed, the employee should be given the reason(s) for dismissal and be reminded of any rights to refer the matter to a council (with jurisdiction) or to the Commission (CCMA) or to any dispute resolution procedures established in terms of a collective agreement between the employer and employee.
In the instance where unfair dismissal has taken place, section 193 of the Labour Relations Act 66 of 1995 sets out the remedies that the employee can revert to for assistance:
“(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-
- order the employer to reinstate the employee from any date not earlier than the date of dismissal;
- order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
- order the employer to pay compensation to the employee.”
The employee has the option to approach The Commission for Conciliation, Mediation and Arbitration (CCMA) if he/she is dissatisfied with the manner in which the disciplinary inquiry has taken place or if he/she is of the opinion that his/her dismissal was unfair.
If you need assistance with a labour law problem and the statutory requirements thereof, or if you or your company is in the process of dismissing an employee due to misconduct and you are unsure of the procedure that needs to take place, feel free to contact our offices for a consultation, to ensure that the proper mechanisms are in place in accordance to the Labour Relations Act.