ABR 224

1. 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: audialterampartem 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!!