Handling instant dismissals

Handling instant dismissals

By Rob Rankin.

Employees can have their services terminated as a result of:

  1. Misconduct
  2. Incapacity
  3. The operational requirements of the business

In all these cases, an employer must follow fair procedures otherwise the dismissal will be regarded unfair.

Misconduct

Every small business should draw up a Disciplinary Code or set of rules clearly explaining the conduct expected of employees. All staff should be familiar with the code, and a copy should be readily available for them to read. Disciplinary procedures are also useful.

Not all breaches of discipline will result in dismissal. In fact, the disciplinary process should be aimed at correcting unacceptable behaviour through counselling and warnings. There are no hard and fast rules leading up to the point where you issue a warning, but must be preceded by two important procedures – firstly that the employee has a chance to share his/her side of the story, and secondly that the manager objectively assesses all the facts before making a decision.

Failing to record these discussions and the progression of events is a mistake, because if you eventually need expert help, there won’t be proof that employees have been fairly treated. It’s therefore very important to keep records on all staff members detailing any transgressions, the action taken and the reasons for the action.

Firing an employee for a first offence is generally inappropriate, unless their misconduct is serious enough to make the employment relationship intolerable. Some examples of serious misconduct could include, but certainly aren’t limited to, gross dishonesty (theft, fraud, bribery), wilful damage to company property, wilful endangering of the safety of others, abusive behaviour or physical assault of an employer, fellow employee, client or customer, gross insubordination (wilful refusal to carry out a lawful and reasonable instruction), sexual harassment, being under the influence of drugs or intoxicating liquor, unauthorised possession of a firearm or dangerous weapon, gambling on company property and use or disclosure of confidential information.

Employees must be given a hearing when an employer is considering dismissal as a possible outcome. Employees are entitled to:

  • Reasonable notice of the hearing,
  • Representation at the hearing by a co-employee or trade union representative (if applicable),
  • The help of an interpreter (if necessary),
  • Cross-question the employer’s witnesses,
  • Give evidence and to call a reasonable number of witnesses to give evidence on the question whether the misconduct occurred,
  • Argue in mitigation of sanction,
  • Be informed in writing of the outcome of the hearing within a reasonable time,
  • Appeal the dismissal (through the company’s appeal procedure, if there is one, or directly to the CCMA).

Employers would do well to thoroughly investigate the basis for any hearing, and in the interests of all employees, ensure that the case is supported by good evidence and witnesses, where appropriate.

When disciplinary action is taken, you must establish if:

  • A rule or disciplinary standard has been established and communicated to all relevant staff;
  • The employee was aware, or could reasonably have been expected to be aware, of the required rule or standard, u The employee contravened that rule or standard;
  • The standard was consistently applied,
  • Dismissal is the appropriate sanction for failing to adhere to the rule or standard.

Incapacity

Poor work performance falls under the incapacity category. Our labour laws require that employers give employees the required evaluation, instruction, training, guidance or counselling to help them provide satisfactory service. Before considering firing an employee, you must give them the opportunity, assisted by a fellow employee (or trade union representative – where applicable), to respond to the accusations.

Important questions for you to consider before starting this process:

  • Did the employee fail to meet a performance standard?
  • If yes, was the employee aware, or could reasonably be expected to have been aware, of the required performance standard?
  • ยป Was the employee given a fair opportunity to meet the required performance standard?
  • Is dismissal the appropriate sanction?

A hearing should only be held if the answer to all of these questions is “yes”.

Operational requirements

Section 189 of the Labour Relations Act contains guidelines for retrenchment (dismissal based on operational requirements). There is nothing “instant” about these dismissals. Consultation is required. The timeframe doesn’t have to be lengthy but must be sufficient to sincerely consider alternatives to avoid or minimise dismissals, change the timing and lessen the adverse effects of the retrenchments.

In short, an employer is expected to be fair, reasonable and to hear the other side (or treat others as they’d expect to be treated). If you’re considering dismissing someone, you would do well to get expert advice.