Maisie is dismissed from her job for ongoing lateness in arriving at work. She says the dismissal was unfair because she relies on public transport and she can’t help it if the trains always run late. She wants to get her job back.

What Does the Law Say?

The law says that a person who is constantly late for work without good reason can be dismissed on grounds of misconduct or incapacity (poor performance). Generally, for late coming, Maisie should have received a verbal warning, a written warning and a final written warning before the decision was taken to dismiss her. If Maisie was dismissed for an unfair reason (substantive unfairness), she may be able to be reinstated or compensated. If she was dismissed for good reason but the employer didn’t follow the proper procedures (procedural unfairness), it is more likely that she will be compensated but not reinstated.

(See: Substantive Fairness and Procedural Unfairness)

What Can You Do?

Find out whether she really does want to be reinstated in the same job or claim compensation for being unfairly dismissed. Sometimes an employee who was unfairly dismissed does not want to be reinstated or claim compensation. The employee only wants to claim outstanding money for notice, leave and so on.

(See: Problem 2: Employee wants to claim notice pay and leave pay)

The following is an outline of the procedure you can follow after dismissal of an employee. It should be followed in all cases where an employee is dismissed and wants to be reinstated or at least compensated.

Determine Whether Her Dismissal May Have Been Unfair

• Ask Maisie to describe the events leading up to dismissal. For example, How often was she late? What were her reasons? How did this impact on her job? Was there a hearing? etc. Make a note of all the important dates, for example, when (if at all) she received warnings, in particular note the date on which she was told that she was dismissed.
  (See: When Is a Dismissal Fair or Unfair?)
• Ask her what reasons were given for her dismissal, if any. Who dismissed her?
• If she was dismissed for misconduct ask her the following questions to establish the substantive and procedural fairness of the dismissal:
  • Did she know the consequences of being late?
  • Do all people who are late get treated in the same way?
  • What previous warnings of misconduct has she had? When were they given? Were they verbal or written? What were they for? Who handed out the warning(s)?
• If she was dismissed for incapacity (poor performance), ask her the following questions:
  • When she was late what impact did this have on her performance at work?
  • Was she counselled that her lateness at work was unacceptable?
  • Was she given the chance to improve her performance?
  • Was she offered any alternative options, for example, starting work later and working in her lunch break?
    (See: Dismissal for Incapacity)
• Was she given a fair hearing before being dismissed? Ask the following questions:
  • Was she given proper notice of the hearing before being dismissed?
  • Was she told what the charges were against her?
  • Did she get a chance to prepare for the hearing?
  • Was she provided the opportunity of having a fellow employee with her in the hearing?
  • Was she provided a fair opportunity to present her side of her story and were these properly considered by an unbiased person?
    (See: Procedural Fairness)

If the answer to any of the above questions is ‘NO’, then the dismissal of Maisie may be unfair and she should be able to challenge it. If she still wants to get her job back, then you can take the next steps.

Challenging the Dismissal

Refer the unfair dismissal dispute to the relevant body for conciliation:

• Bargaining Council if she is covered by a Bargaining Council Agreement
• If she is covered by a collective agreement, she must follow the dispute resolution procedure in the agreement
• Otherwise refer the matter to the CCMA

(See: Solving Disputes Under the LRA)