1. Discipline and Dismissals Lecture 15
ABR 224
Discipline and Dismissals
Lecture 15

2. DISMISSALS SEE P 19 FOR STUDY OBJECTIVES READ PAR 14.1,14.9 AND 14.11
SEE STYDUGUIDE FOR SECTIONS TO BE STUDIED!
Fair/Unfair
Pertaining to reason -substantive
And procedure--- procedural fairness
Some dismissals are automatically unfair!
What is fair?
Objective or subjective reasoning?

3. Definition of dismissal nb!!!
Employer terminated contract of employment with or without notice
Employee reasonably expected employer to renew fixed term contract of employment on same/similar terms and employer offers less favourable terms or do not renew
Employer refuse to allow employee to resume work after maternity leave ito law, collective agreement, contract of employment
Employer dismissed number of employee for same/similar reasons and re-employ some and refuse to re-employ others (selective re-employment)
Employee terminated contract of employment with or without notice because employer made continued employment intolerable (constructive dismissal)
Employee terminated contract of employment with or without notice because the new employer if, after transfer, employment conditions are substantially less favourable

4. Automatically unfair dismissals
In terms of section 187 of the LRA some dismissals are automatically unfair. In the main a dismissal is automatically unfair if an employee is dismissed because he/she has exercised his or her rights.

5. Automatically Unfair Dismissals
Dismissal because an employee is exercising his right to freedom of association
Dismissal because employee disclosed information that he is lawfully required or entitled to give to another person
Dismissal because employee is exercising any of his rights conferred by the LRA
Dismissal because employee participates in or supports a protected strike
Dismissal because an employee refuses to perform the duties of other employees while they are participating in a protected strike or during a lock-out
A dismissal lock-out
Dismissal because of the employee’s pregnancy or intended pregnancy
Dismissal because of the employer’s unfair discrimination
Dismissal in the context of a transfer or reason related to a transfer ito section 197 or 197 A;
Dismissal because an employee made a protected disclosure
( see book p 269 and the diagram for your convenience)

6. Date of Dismissal
Date of dismissal to be the earlier of the date on which the contract of employment is terminated or the date on which the employee left the service of the employer
Dismissal date for discipline action: date of disciplinary hearing, not date of appeal hearing
Fixed term contracts: date on which the employer offered less favourable terms or the date the employer notified the employee of his intention not to renew the contract
Employer refuses to allow employee to resume work after period of absence: date of dismissal Is date on which employer first refused to allow the employee to resume work
Employer refuses to reinstate/re-employ: date of dismissal is date on which the employer first refused to reinstate or re-employ that employee

7. Requirements for fair dismissal
Burden of proof: on employer to prove tat dismissal relates to employee’s conduct, capacity, or employer’s operational requirements and fair procedure was adopted during dismissal
Categories of dismissal:
Misconduct
Incapacity/poor work performance
Employers’ operational requirements.
Requirements to ensure fairness of dismissal
Substantive fairness
Procedural fairness

8. Requirements for fair dismissal
Employee alleges unfair dismissal: onus of proof on employer to prove on balance of probabilities that dismissal was fair.
Employee claims he was dismissed and employer claims he was not: onus on employee to prove existence of dismissal

9. Substantive Fairness
Substantive fairness as a requirement for a fair dismissal can be described as a “valid and fair reason” : employer can dismiss his employee only if he has a valid and fair reason to do so.
Valid reason
Lawful reason that will justify dismissal
Lawful in accordance with common law, statue law, collective agreement, contract of employment
Misconduct, incapacity, poor work performance, (if it is of serious nature) operational requirements of employer
Fair reason
Valid is not per se fair.
Considering all the circumstances dismissal is the only appropriate sanction; no alternative sanction can be considered
Dismissal justified where employment relationship has become intolerable or where the trust relationship between employer and employee has irretrievably broken down

10. Procedural Fairness
Indicates the adoption of a fair procedure during a dismissal.
Opportunity to state case in relation to the charges brought against him and to bring mitigating circumstances to employer’s notice.
Natural justice: audi alteram partem rule: let both sides be heard.
Requirements
Notice in writing
Notification of rights (representation; witnesses; interpreter; appeal- if so provided for)
Prompt, fairly timed disciplinary hearing – sufficient time to prepare case

11. Dismissals Misconduct (checklist)
Incapacity (test for substantive fairness)
Operational requirements
Compare Substantive and Procedural Fairness for misconduct; incapacity; operational requirements
Understand what is meant by each of the dismissals: grounds etc.

12. Dismissal for misconduct
83% of CCMA cases revolve around this
ER must adopt necessary measures to curb misconduct
Through Disciplinary Code or Procedure
Difference between Discipline and Grievance
Principle of progressive discipline
When may you dismiss?
What is the trust relationship?
When is a relationship “intolerable?”

13. (continued) Very serious misconduct v minor transgressions
How many warning must precede a dismissal?
Code of Good Practice re Dismissal Schedule 8 of the LRA
Substantive fairness v Procedural fairness( See p 274 of the handbook and study the tables)

14. Dismissal for incapacity
Ill Health and Poor performance
So called No fault dismissals
ER need to assist EE
EE is willing but unable as opposed to unwilling but able
Attempt must have been made to accommodate the EE
Investigation into ability to perform, assistance given i.t.o training, guidance, evaluation, sufficient time to perform
Possibility of transfer or adaptation of existing job

15. Remedies An order for reinstatement An order for re-employment
And order for compensation
In a case of an automatically unfair dismissal or dismissal for operational requirements, the Labour Court may in addition make an appropriate order

16. Class dismissed!!