INTRODUCTION

In cases where dismissal is being considered, it is essential for employers to adhere to both substantive and procedural fairness. Substantive fairness focuses on having a justified reason, while procedural fairness ensures the process follows proper steps. This article explores the circumstances under which a dismissal may be considered fair.

Schedule 8 of the Code of Good Practice: Dismissal (“the Code”) recognises three grounds that would render a dismissal fair, namely misconduct, incapacity and operational requirements. Employers need to ensure that the fair reason for dismissal is supported by a fair procedure, if not the dismissal will be unfair.

MISCONDUCT

Dismissals in the case of misconduct are dealt with in Item 7 of the Code. Misconduct occurs when an employee acts contrary to the rules or standards that exist within the workplace. Examples of misconduct include but are not limited to abusive language, sexual assault, intoxication in the form of alcohol or drugs, conflict of interest, absconding and damage to property. The Code provides guidelines to aid in determining whether a dismissal for misconduct is unfair, by considering 4 factors being: –

1. whether the rule was valid and reasonable;
2. whether the employee was aware of the rule or could have reasonably been expected to be aware of the rule or standard;
3. whether the rule or standard was consistently applied; and
4. whether the dismissal of the employee will be an appropriate sanction for the contravention of the rule.

The CCMA will consider these factors when determining whether the dismissal for misconduct was fair.

INCAPACITY

Incapacity refers to the employee’s inability to perform their job. There are two forms of incapacity, the first is for ill health or injury and the second is for poor performance.

Poor Performance

Item 9 of the Code provides guidelines to determine whether a dismissal for poor performance was fair or unfair.

When determining whether such dismissal was fair, the CCMA will consider whether the employee failed to meet a performance standard. If it is determined that the performance standard was not met, the CCMA must determine:

1. whether the employee was aware of the standard required or could have reasonably been expected to be aware of the standard;
2. whether the employee was afforded a fair opportunity to meet the standard; and
3. whether or not the dismissal was an appropriate sanction for not meeting the standard.

Injury or ill health

Item 11 of the Code provides guidelines to determine if a dismissal that arises from injury or ill health is unfair. The circumstances that the CCMA will look at in in this case is:

1. whether or not the employee is capable of performing the work; and
2. if the employee is not capable, the extent to which the employee is able to perform the work;
3. the extent to which the employee’s work circumstances might accommodate the disability;
4. if it is not possible to accommodate the disability:
   4.1 whether the employee’s duties can be adapted to accommodate the disability; and
   4.2. whether there is any alternative position that is suitable to accommodate the employee.

OPERATIONAL REQUIREMENTS

Section 189 of the Labour Relations Act 66 of 1995 (“the Act”) governs dismissals that are based on operational requirements.

Dismissals that are based on operational requirements are referred to as “no fault” dismissals and is also commonly referred to as a “retrenchment” or “redundancy”. The employee is dismissed due to the employer’s structural, economic, technological or similar needs.

Structural Needs

The structural needs of a company generally relate to the redundancy of positions which results in the restructuring of the business, i.e., where a department or employee is not necessary anymore.

Economic Needs

The economical needs of a company refer to the company’s financial situation and considers whether the company is making a financial loss.

Technological Needs

The technological needs of a company refer to technological advancements that replace the positions of employees to improve efficiency within the workplace.

Similar Needs

Similar needs of the company are not limited to but include the refusal by the employee to accept reorganisation and changed conditions within the workplace and dismissal at the request of the third party, such as a client.

The employer needs to ensure that there is compliance with substantive fairness when effecting a dismissal based on operational requirements. To ensure compliance the below test for substantive fairness should be considered.

The first consideration is that an employer must have an operational reason when there is a dismissal for an operational requirement. If the employer dismisses the employee for an economic reason, the employer must be able to prove that there is an economic reason (e.g., financial stress) on the business.

The second is that the employer should consider alternative options before deciding to retrench the employee. The dismissal must be used as a measure of last resort.

Thirdly, the dismissal must be operationally justifiable on reasonable grounds, this entails that the employer must be able to show what the operational reason for the dismissal is and how it is affecting the business.

Fourth, the selection criteria as to who to retrench must be fair, factors such as the length of service, skills and seniority are to be considered.

CONCLUSION

To ensure that a dismissal is not rendered as unfair, the employer must have a fair reason to dismiss employees i.e., misconduct, incapacity or operational requirements and follow the necessary process, guidelines and steps as contained in the Act and the Code.

Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.