In a previous contribution we stressed the point that the current labour legislation is so intregral to the commercial environment that the business owner cannot fail to take it into account when dealing with any part of human resources.
We pointed out that this legislation has been placed on the statute books to, amongst others, regulate the situations where the relationship between employer and employee has reached a point of deterioration where a mechanism has to be found to end the relationship in a manner which is fair and equitable.
In this contribution we aim to deal shortly with one of the occurrences which often confronts employers and employees equally, namely dismissal.
In its simplest form dismissal is defined by the Labour Relations Act as “the termination of a contract of service by an employer with or without notice”. This definition has a baring on cases where the employer terminates the contract of service for a reason such as misconduct, e.g. theft, assault or fraud.
In such cases the two most important elements of any dismissal are procedure and a substantial reason for dismissal.
The element of procedure is viewed as extremely important in current South African labour law. This entails that the employee may only be dismissed if the contract of service is terminated after following a structured procedure or disciplinary hearing. The hearing need not be as formal as a criminal trial, but there are certain elements which have to be present.
The employee must be notified of the case he/she has to answer. The case of the employer, or charge, must be conveyed to the employee in clear language which he/she will understand. Preferably the charge must be conveyed in writing.
The employee must have known that the conduct of which he/she is accused is wrong.
The employee must receive sufficient notice of the date of the disciplinary hearing to prepare his/her defence. Normally twenty four hours’ notice is enough, but in more complicated cases the time for preparation must be longer.
Possibly the most important requirement of a disciplinary hearing is that the employee must be given the opportunity to state his/her case. In order to do this he/she must be afforded the opportunity to be assisted by at least a fellow employee or a union member where applicable. Some employers do permit legal representatives, but normally this is not allowed. The employee must also be afforded the opportunity to put questions to witnesses called by the employer in order to clarify his/her defence. Furthermore, the employee must also be able to call his/her own witnesses to prove his/her case.
The element of a substantial reason for dismissal is equally important. The employer must prove to the chair person conducting the hearing that there exists a reason which sufficient to warrant dismissal. If the reason is not sufficient the employee may be given a warning which will be kept on his/her record for a period specified by the chair person. This warning will be taken into account if the employee commits the same offence while the warning is still valid.
After hearing the evidence of both parties the chair person must consider the evidence and decide whether the employee is guilty of the offence or not.
If the employee is found guilty he/she must be given the opportunity to place evidence in mitigation before the chair person. This evidence may be e.g. a long and clean service record or some other fact which the chair person must take into account.
The chair person will then decide whether to recommend that the employee be dismissed or not. The finding of the chair person must be handed to the employee.
Some employers have a further appeal procedure where a member or members of management may, on request of the employee, re-consider the matter on the record of the disciplinary hearing.
If such appeal procedure does not exist the employee may, if not satisfied with the outcome of the hearing, take the matter directly to the Commission for Consiliation, Mediation and Arbitration [CCMA]. The working of the CCMA falls beyond the scope of this contribution. However, it should again be stressed that the procedure followed at the disciplinary hearing may become very important when the matter is considered by the CCMA.
In order to ensure that the correct procedure is followed it could be prudent of the employer to engage the services of an independent chair person. Such a person can explain the rights of the employee during the hearing and also guide the person adducing evidence on behalf of the employer through the stages of the hearing.