The Labour Relations Act (LRA) has a Code of Good Practice for Dismissals that employers must follow. The ‘fairness’ of dismissal is decided in two ways – substantive fairness and procedural fairness.

SUBSTANTIVE FAIRNESS

Was there a ‘fair’ reason to dismiss the employee?

Was dismissal appropriate under the circumstances? In other words, did the punishment fit the crime?

The employer must have a proper and fair reason for dismissing the employee. A ‘fair’ reason can be one of these:

• Misconduct – the employee has done something seriously wrong and can be blamed for the misconduct. (See Dismissal for misconduct)
• Incapacity – this includes poor performance where the employee does not do the job properly, or the employee is unable to do the job due to illness or disability, or a lack of skills or training. (See Dismissal for incapacity)
• Retrenchment or redundancy – the employer is cutting down on staff or restructuring the work and work of a particular kind has changed. (See Retrenchment or redundancy dismissal)

PROCEDURAL FAIRNESS

Was a fair procedure followed before the employee was dismissed?

The employee must always have a fair hearing before being dismissed. In other words, the employee must always have the opportunity to present their side of the story before the employer decides on dismissal.

The employee must also be allowed to bring any witness (a witness who can provide supporting evidence, etc.), have the meeting conducted in a language they are comfortable with, and should be allowed representation by a fellow employee if they feel it is necessary. A shop steward may be asked to go with the employee to the hearing. Unless by agreement, an external union official or person is not ordinarily allowed to attend the internal disciplinary hearing.

If an employee feels a dismissal was unfair, either substantively or procedurally, then this can be referred to the CCMA for conciliation and thereafter arbitration, if this is necessary. The referral of the dispute must be made within 30 days of the date of dismissal. Other aspects of a fair procedure are explained under the different reasons for dismissal. (See Problem 4: Dismissed employee wants the job back – how to apply for reinstatement or compensation; See Problem 6: Employee is dismissed for being under the influence of alcohol on duty (with no previous record of alcohol abuse)

IS A DISMISSAL UNFAIR?