Introduction
- This code of good practice
deals with some of the key aspects of dismissals for reasons related
to conduct and capacity. It is intentionally general. Each case is
unique, and departures from the norms established by this Code may be
justified in proper circumstances. For example, the number of
employees employed in an establishment may warrant a different
approach.
- This Act emphasises the
primacy of collective agreements. This Code is not intended as a
substitute for disciplinary codes and procedures where these are the
subject of collective agreements, or the outcome of joint
decision-making by an employer and a workplace forum.
- The key principle on this
Code is that employers and employees should treat one another with
mutual respect. A premium is placed on both employment justice and the
efficient operation of business. While employees should be protected
form arbitrary action, employers are entitled to satisfactory conduct
and work performance from their employees.
Fair
reasons for dismissal
- A dismissal is unfair if:
- it is not effected for a
fair reason and
- in accordance with a fair
procedure, even if it complies with any notice period in a contract
of employment or in legislation governing employment.
- Whether or not a dismissal
is for a fair reason is determined by the facts of the case, and the
appropriateness of dismissal as a penalty. Whether or not the procedure
is fair is determined by referring to the guidelines set out below.
- The Act recognises three
grounds on which a termination of employment might be legitimate.
- These are:
- the conduct of the
employee,
- the capacity of the
employee, and
- the operational
requirements of the employer's business.
- This Act provides that a
dismissal is automatically unfair if the reason for the dismissal is:
- one that amounts to an
infringement of the fundamental rights of employees and trade unions,
or
- if the reason is one of
those listed in section 187.
- The reasons include
participation in a lawful strike, intended or actual pregnancy and
acts of discrimination.
- In cases where the
dismissal is not automatically unfair, the employer must show that the
reason for dismissal is a reason related to the employee's conduct or
capacity, or is based on the operational requirements of the business.
If the employer fails to do that, or fails to prove that the dismissal
was effected in accordance with a fair procedure, the dismissal is
unfair.
Misconduct
Disciplinary procedures prior to dismissal.
- 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 maybe 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 employee's behaviour through a system of graduated
disciplinary measures such as counselling 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 is the best and most effective way
for an employer to deal with minor violations of work discipline.
Repeated misconduct will warrant warnings awnings, which themselves
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 offences.
Dismissal
for misconduct
- Generally, it is not
appropriate to dismiss an employee for a first offence, 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. 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.
- When deciding whether or
not to impose the penalty of dismissal, the employer should in
addition to the gravity of the misconduct consider factors such as the
employee's circumstances, including:
- length of service,
- previous disciplinary
record,
- personal circumstances,
- the nature of the job and
- the circumstances of the
infringement itself.
- The employer should apply
the penalty of dismissal consistently with the way in which it has
been applied to 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 conduct an investigation to determine whether there are grounds
for dismissal. This does not need to be a formal enquiry. The employer
should notify the employee of the allegations using a form and
language 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 of fellow employee. After the enquiry, 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 dismissal and
reminded of any rights to refer the matter to a council with
jurisdiction or to the Commission 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 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 -
- the seriousness of the
contravention of this Act;
- attempts made to comply
with this Act; and
- 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 of 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:
- whether or not the employee
contravened a rule or standard regulating conduct in, or of relevance
to, the workplace; and
- if a rule or standard was
contravened, whether or not;
i.
the rule was a valid or 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 was an appropriate sanction for the contravention
of the rule or standard.
Probation
17
An employer may require a newly-hired employee to serve a period of
probation before the appointment of the employee is confirmed.
18 The purpose of probation is to give the
employer an opportunity to evaluate the employee's performance before
confirming the appointment.
19 Probation should not be used for
purposes not contemplated by this Code to deprive employees of the status
of permanent employment. For example, a 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
an unfair labour practice.
20 The period of probation should be
determined in advance and be of reasonable duration. The length of the probationary
period should be determined with reference to the nature of the job and the
time it takes to determine the employee's suitability for continued
employment.
21 During the probationary period, the
employee's performance should be assessed. An employer should give an
employee reasonable evaluation, instruction, training, guidance or
counselling in order to allow the employee to render a satisfactory
service.
22 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 subitems (g) or (h), as the case may be.
23The period of probation may only be
extended for a reason that relates to the purpose of probation. The period
of extension should not be disproportionate to the legitimate purpose that
the employer seeks to achieve.
24 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.
25 If the employer decides to dismiss the
employee or to extend the probationary period, the employer should advise
the employee of his or her rights to refer the matter to a council having
jurisdiction, or to the Commission.
26Any person making a decision about the
fairness of a dismissal of an employee for poor work performance during or
on 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.
27 After probation, an employee should not
be dismissed for unsatisfactory performance unless the employer has-
i.
given the employee appropriate
evaluation, instruction, training, guidance or counselling; and
ii. after a reasonable period of time for
improvement, the employee continues to perform unsatisfactorily.
28 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.
29 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:
- whether or not the
employee failed to meet a performance standard; and
- if the employee did not
meet a required performance standard whether or not -
- the employee was aware,
or could reasonably be expected to have been aware, of the required
performance standard;
- the employee was given a
fair opportunity to meet the required performance standard; and
- dismissal was an
appropriate sanction for not meeting the required performance
standard.
Incapacity : Ill health or injury
31 Incapacity on the grounds of ill health or injury may be
temporary or permanent.
32 If an employee is temporarily unable to
work in these circumstances, the employer should investigate the extent of
the incapacity or the injury.
33 If the employee is likely to be absent
for a time that is unreasonably long in the circumstances, 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.
34 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.
35 In the process
of the investigation referred to in subsection (1) the employee should be
allowed the opportunity to state a case in response and to be assisted by a
trade union representative or fellow employee.
36 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, counselling and rehabilitation may be appropriate
steps for an employer to consider.
37 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 on the
employer to accommodate the incapacity of the employee is more onerous in
these circumstances.
Guidelines
in cases of dismissal arising from ill health or injury
38 Any person determining whether a dismissal arising form
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 circumstances
might be adapted to accommodate 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 work.
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