Disciplinary measures short of dismissal
All employers should adopt disciplinary rules that establish the standard of conduct required of their employees. The form and content of disciplinary rules will obviously vary according to the size and nature of the employer’s business. In general, a larger business will require a more formal approach to discipline. An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that it is not necessary to communicate them.
The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counseling and warnings.
Formal procedures do not have to be invoked every time a rule is broken, or a standard is not met. Informal advice and correction are the best and most effective ways for an employer to deal with minor violations of work discipline. Repeated misconduct will warrant a warning, which may be graded according to degrees of severity. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offenses.
Dismissals for misconduct
Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer, and gross insubordination. Discrimination/harassment is also regarded as serious misconduct and employers should have zero tolerance in this regard. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188 of the LRA.
When deciding whether to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstance (including length of service, previous disciplinary record, and personal circumstance), the nature of the job and the circumstance of the infringement itself.
The employer should apply the penalty of dismissal consistently with the way in which it has been applied in the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
Fair procedure
Normally, the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
If the employee is dismissed, the employee should be given the reason for the dismissal and reminded of any rights to refer the matter to a Bargaining Council with jurisdiction or to the CCMA or to any dispute resolution procedures established in terms of a collective agreement.
In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
Disciplinary records
Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer, and the reasons for the actions.
Dismissals and industrial action
Participation in a strike that does not comply with the provisions of chapter IV of the LRA is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including –
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
(c) whether or not the strike was in response to unjustified conduct by the employer.
Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt.
The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.
Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should consider –
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid and reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
Probation
An employer may require a newly hired employee to serve a period of probation before the appointment of the employee is confirmed.
The purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
Probation should not be used for purposes not contemplated by this code to deprive employees of the status of permanent employment. For example, the practice of dismissing employees who complete their probation periods and replacing them with newly hired employees is not consistent with the purpose of probation and constitutes unfair labour practice.
The period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with the reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment.
During the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance, or counseling to allow the employee to render a satisfactory service. If the employer determines that the employee’s performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent.
The employer may either extend the probationary period or dismiss the employee after complying with the following, as the case may be:
The period of the probation may only be extended for a reason that relates to the purpose of the probation. The period of extension should not be disproportionate to the legitimate purpose that the employer seeks to achieve.
An employer may only decide to dismiss an employee or extend the probationary period after the employer has invited the employee to make representations and has considered any representations made. A trade union representative or fellow employee may make the representations on behalf of the employee.
If the employer decides to dismiss the employee or to extend the probationary period, the employer should advise the employee of their rights to refer the matter to a Bargaining Council having jurisdiction, or to the CCMA.
Any person deciding the fairness of a dismissal of an employee for poor work performance during or on the expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period.
After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has –
(a) given the employee appropriate evaluation, instruction, training, guidance, or counseling; and
(b) after a reasonable period of time for improvement, the employee continues to perform unsatisfactorily.
The procedure leading to dismissal should include an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter. In the process, the employee should have the right to be heard and to be assisted by a trade union representative or a fellow employee.
Guidelines in cases of dismissal for poor work performance
Any person determining whether a dismissal for poor work performance is unfair should consider –
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not –
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
Incapacity: Ill health and injury
Incapacity on the ground of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstance, the employer should investigate all the possible alternatives short of dismissal.
When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury, and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
In the process of the investigation referred to above, the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employees. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example, alcoholism or drug abuse, counseling and rehabilitation may be appropriate steps for an employer to consider.
Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty of the employer to accommodate the incapacity of the employee is more onerous in this circumstance.
Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should consider –
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable –
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee’s work circumstance might be adapted to accommodate a disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
(iii) the availability of any suitable alternative work.
Need assistance with Labour Relations Support? Call upon the EOHCB to add value to your business!
