Fair Dismissal in South Africa

These notes have been compiled to assist employers and employees understand the basic concepts of what constitutes a fair dismissal in South African law. It is not intended to be an all-encompassing legal authority on fair dismissal. The law on dismissal has become relatively complex in certain areas. These guidelines attempt to summarise that complexity.

A. The Concept of Fair Dismissal

1. An employer under South African law does have the right, at his initiative, to terminate the services of an employee on 3 main grounds:

MISCONDUCT – the unacceptable behaviour or conduct of an employee. 
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This may be gross misconduct such as theft, fraud, any act of dishonesty, gross insolence, gross insubordination, assault, insulting or indecent behaviour, drug influence.
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Or it may be repetitive misconduct where warnings have been given for previous conduct which the employee fails to heed.
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INCAPACITY – where the employee is incapable of doing the job, either through poor performance, incompetence, or due to ill health or disability.
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OPERATIONAL REQUIREMENTS – where due to the operational needs of the business the employer has to retrench or make employees redundant. These notes only will refer to dismissal on the grounds of misconduct and poor performance. For information on operational requirements refer to Fair Retrenchment.

2. A dismissal must be shown to be substantively fair and procedurally fair.

3. Substantive fairness refers to the reason for the dismissal. Why did the employer dismiss the employee? What were the grounds? Is it for a specific act of misconduct, such as stealing from the company, refusing to do a job (insubordination) being rude by word of mouth (insolent), taking drugs at work, or sexually harassing another staff member? Or is it due to poor performance? You have repeatedly told an employee how to do a job and he can’t do it?

4. Procedural fairness refers to the way in which the employee is dismissed. An employer cannot just tell an employee that he’s fired and must get off the premises. The acceptable practice is to have some form of enquiry or hearing.

5. The Labour Relations Act (66/1995) deals with the law of unfair dismissal. An appendix to that Act is the Code of Good Practice: Dismissal which provides guidelines to employers on fair dismissal.

B. Substantive Fairness

In substantive fairness generally two concepts must apply:

1. Has the employee done the wrongdoing? Is the employee guilty of the alleged offence?  Is the employee unable to do the job? In other words the verdict – guilty or not guilty!

2. What is the appropriate action to take? Should the employee be dismissed or would a lessor penalty be more appropriate? In other words the sanction:
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• dismissal
  
• final warning
• written warning

The allegations against the employee should be stated or proven by the employee’s superior and the employee should be given a chance to respond to the allegations; that is defend himself

C. Procedural Fairness

1. Before dismissing an employee, the employer must show that it has followed a fair procedure.

2. In the event of an allegation of misconduct it is recommended that the employer takes the following steps:
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• Give the employee a written Notice to Attend a Disciplinary Enquiry.  The notice should include the allegation against the employee, the date, time and place of the enquiry, and the right of the employee to have a representative (fellow employee / trade union representative), to state his case and call witnesses.  If he requires an interpreter, he is entitled to one.
• The employee should be given reasonable time to prepare. The norm is at least 48 hours.  If the employee is to be suspended pending the enquiry / hearing this should be on full pay and the employee notified of the suspension.
• A management employee or an independent person should chair the hearing. The allegations against the employee should be stated or proven by the employee’s superior and the employee should be given a chance to respond to the allegations; that is defend himself. Relevant witnesses should be called to substantiate or defend the allegations.
• The chairperson should then make a finding. If he finds the employee is guilty of the allegations he should consider the circumstances of the wrongdoing, mitigating and aggravating factors and whether the employment and trust relationship has broken down to the extent to warrant dismissal.
• The employee should be given written reasons for his dismissal based on the chairperson’s findings.
• The employee has the right to refer the matter to the CCMA or a Bargaining Council if dissatisfied with the outcome. 
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3. Before dismissing an employee on grounds of Poor Performance the employer must show that it has made attempts to address the unacceptable performance and what steps it has taken in the form of evaluation, instruction, training, guidance, or counselling directly with the employee. It is highly recommended that all performance appraisal meetings to address such poor performance are recorded in writing and a letter given to the employee to warn him of the consequences of his continual poor performance. The penultimate warning letter should indicate that this amounts to a final warning and that continued poor performance could or will result in the termination of his services.